SECOND LEASE AMENDMENT
----------------------
This Second Lease Amendment (the Second Amendment) is made this 16th
----
day of March, 1999, between THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED
STATES ("Landlord") and AVERSTAR, INC., formerly known as Intermetrics, Inc.
("Tenant").
WHEREAS, Landlord and Tenant entered into a Lease Agreement dated May
23, 1997 (the Initial Lease), under which Tenant leased from Landlord
approximately 26,084 rentable square feet of space on the sixth (6th) floor (the
"Sixth Floor Premises") of the west tower of the office building located at
▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and known as The Concourse
(the Building"); and
WHEREAS, the Lease Agreement was amended by an Amendment to Lease
Agreement dated October 31, 1997, under which the Security Deposit Section
(Section 5) of the Lease Agreement was modified (the Lease Agreement and the
Amendment to Lease Agreement are collectively referred to herein as the Lease);
and
WHEREAS, the Lease is scheduled to expire on September 30, 2002; and
WHEREAS, Landlord and Tenant wish, among other matters, to amend the
Lease to expand the premises occupied by Tenant in the Building, and to extend
the Lease Term, all on the terms and provisions hereinafter contained.
NOW THEREFORE, in consideration of the foregoing, and other good and
valuable consideration, the receipt and sufficiency of which are acknowledged by
the parties, Landlord and Tenant agree as follows:
1. Expansion Premises.
-------------------
a. Landlord hereby demises and leases to Tenant and Tenant
hereby leases and accepts from Landlord, for a term and upon the conditions
hereinafter provided, Seventy-eight Thousand Two Hundred Fifty-two (78,252)
rentable square feet of space in the east tower of the Building, known as ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, outlined on the floor plans attached hereto and incorporated
herein by reference as Exhibits ▇-▇, ▇-▇ and A-3 (the "Expansion Premises"),
consisting of the entire second (2nd) floor (the Second Floor Premises), the
entire third (3rd) floor (the Third Floor Premises) and the entire seventh (7th)
floor (the Seventh Floor Premises). All provisions of the Lease which apply to
the Premises shall apply to the Expansion Premises; provided, however, that
Tenant's obligations with respect to each floor of the Expansion Premises
(except as otherwise specifically provided herein) shall not commence until such
floor has been delivered to Tenant Substantially Completed (or the earlier date
on which rental hereunder commences as to such floor).
b. Tenant shall take possession of the Expansion Premises as
follows:
(i) Upon Substantial Completion (as defined in the Lease)
of the Third Floor Premises, which is anticipated to occur on or about June 1,
1999;
(ii) Upon Substantial completion of the Second Floor Premises,
but not earlier than September 1, 1999; and
(iii) Upon Substantial Completion of the Seventh Floor
Premises, which is anticipated to occur on or about March 1, 2000.
2. Extended Term.
--------------
a. The Term of the Lease for the Expansion Premises will commence
upon the earlier to occur of (a) Substantial Completion of the improvements to
be performed in the Third Floor Premises, or (b) the date Tenant or any one
claiming under or through the Tenant first occupies the Third Floor Premises or
any portion thereof for the Permitted Use (the "Expansion Premises Commencement
Date"), and will expire ten (10) years and zero (0) months thereafter. The
anticipated Expansion Premises Commencement Date is June 1, 1999.
Notwithstanding the foregoing, and in addition to the provisions in Section 2(c)
of the Lease which will permit Tenant to enter the Expansion Premises up to two
(2) weeks prior to the Expansion Premises Commencement Date, Tenant agrees that
none of Tenant's vendors will have access to the Expansion Premises without
Landlord's prior approval, which approval will not be unreasonably withheld,
conditioned or delayed. To the extent that tenants which occupy any part of the
Expansion Premises fail to vacate such premises upon the expiration or earlier
termination of their leases, Landlord agrees to exercise commercially reasonable
efforts to recover possession of such premises.
b. Notwithstanding anything to the contrary contained in
subsection a. above, and provided that any delay in substantially completing the
Expansion Premises is not attributable to (i) any Tenant delay detailed in
Section 7 of the Lease, (ii) the requirements of any Special Tenant Work as
defined in Section 7(d) of the Lease, or (iii) the contingencies (other than
failure or delay of tenants of any part of the Expansion Premises to vacate the
same) in the force majeure provisions of Section 31 of the Lease, then, if any
----- -------
floor of the Expansion Premises is not Substantially Complete within one hundred
eighty days (180) of its anticipated date for Substantial Completion, as recited
above, Tenant shall have the right to terminate its obligation to lease the
floor so delayed, by delivering written notice to Landlord not later than one
hundred ninety (190) days after the date Tenant was anticipated to have taken
possession of such floor.
3. Basic Rental for Expansion Premises.
------------------------------------
a. Effective as of the Expansion Premises Commencement Date,
Tenant shall pay Landlord as Basic Rental for the Second Floor Premises and the
Third Floor Premises (collectively, the "Initial Expansion Premises"), in legal
tender, at Landlord's office, the initial annual sum of One Million Four Hundred
Eighty-six Thousand Seven Hundred Eighty-eight and 00/100 dollars
($1,486,788.00), payable in equal monthly sums of One Hundred Twenty-three
Thousand Eight Hundred Ninety-nine and 00/100 dollars ($123,899.00), in advance,
promptly on the first day of each calendar month of the Extended Term; provided,
however, that for the period from the Expansion Premises Commencement Date until
Substantial Completion of the Second Floor Premises, Tenant shall only be
obligated to pay Basic Rental in the monthly amount of Sixty-one Thousand Nine
Hundred Forty-nine and 50/100 dollars ($61,949.50), being the Basic Rental for
the Third Floor Premises. The prepayment of the first month's installment of
Basic Rental for the Third Floor Premises, in the amount of Sixty-one Thousand
Nine Hundred Forty-nine and 50/100 dollars ($61,949.50), shall be due and
payable upon execution of this Second Amendment, and Sixty-one Thousand Nine
Hundred Forty-nine and 50/100 dollars ($61,949.50), which is the prepayment of
the first month's installment of Basic Rental for the Second Floor Premises,
shall be due and payable on the earlier to occur of (i) June 1, 1999, or (ii)
Landlord's execution of a construction contract pursuant to the terms of this
Second Amendment with Landlord's Contractor for improvements to be made to the
Second Floor Premises (but, in any event, no earlier than March 1, 1999). The
Expansion Premises Basic Rental shall be paid by Tenant to Landlord without
notice or demand, the same being hereby waived, and without any setoff,
deduction, or recoupment whatsoever. The Basic Rental for the Initial Expansion
Premises as provided in this paragraph shall be in addition to any other rent
due to the Landlord under the Lease with respect to the Sixth Floor Premises or
the Temporary Space.
b. In lieu of the payment of Basic Rental for the Sixth
Floor Premises, upon Substantial Completion of the Seventh Floor Premises Tenant
shall pay Basic Rental for the Seventh (7th) Floor Premises through September
30, 2002, at the same rate, and pursuant to the same escalations, as outlined in
the Initial Lease for the Sixth Floor Premises.
c. Effective as of October 1, 2002, and thereafter for each month
during the remainder of the Extended Term, Tenant will pay Landlord Basic Rental
for the Seventh Floor Premises at the same escalated rate per rentable square
foot as is then being paid by Tenant pursuant to this Second Amendment for the
Initial Expansion Premises.
4. Escalation in Basic Rental for Expansion Premises. The Basic
-------------------------------------------------
Rental for the Initial Expansion Premises shall be increased annually,
commencing on the first (1st) anniversary of the Expansion Premises Commencement
Date, and on each anniversary of such
-3-
Expansion Premises Commencement Date thereafter during the Extended Term, by an
amount equal to three percent (3%) of the escalated Basic Rental then in effect;
provided, however, that Tenant shall continue to pay the Basic Rental, and all
escalations applicable thereto, for the Seventh Floor Premises as outlined in
the Initial Lease, until September 30, 2002, on which date the Basic Rental for
the Seventh Floor Premises shall escalate to the same rate, and shall thereafter
escalate on the same dates, as that for the Initial Expansion Premises.
5. Security Deposit.
----------------
a. As of the execution date of this Second Amendment, Landlord is
holding a Security Deposit in the form of an Irrevocable Transferrable Standby
Letter of Credit in the amount of $154,873.74. Said Security Deposit shall be
increased to $526,570.74, by depositing with Landlord an additional $371,697.00,
either in the form of cash or in the form of an additional Letter of Credit, in
accordance with the following schedule: (i) upon execution of this Second
Amendment, an additional $185,848.50, and (ii) on the earlier of June 1, 1999,
or Landlord's execution of a construction contract with Landlord's Contractor
for improvements to be made to the Second Floor Premises (but, in any event, no
earlier than March 1, 1999), an additional $185,848.50.
b. Section 5(c) of the Lease is hereby deleted in its entirety,
and the following inserted in lieu thereof:
(c) Notwithstanding anything to the contrary contained herein,
Tenant shall be entitled to reduce the amount of the Security
Deposit to (i) $382,913.12 after the eighteenth (18th) month of
the Extended Term, provided Tenant has not been late in the
payment of any Basic Rental or additional rent for which Tenant
is obligated under this Lease, beyond any applicable grace or
cure period, nor has otherwise been in default under the Lease
during the first eighteen (18) months of the Extended Term,
beyond any applicable grace or cure period; and (ii)
$191,457.00 at anytime thereafter during the remainder of the
Extended Term, provided Tenant satisfies all conditions of
(c)(i) herein, and further delivers to Landlord two (2)
successive annual, audited financial statements, showing that
Tenant's net worth has exceeded $20,000,000.00 for the two (2)
annual periods covered by such statements.
6. Expansion Premises Operating Expenses and Real Estate Taxes.
------------------------------------------------------------
a. Commencing on the first (1st) anniversary of the Expansion
Premises Commencement Date, and continuing during each calendar year or portion
thereof
-4-
thereafter included in the Extended Term, Tenant shall pay as additional rent an
amount (per each square foot within the Expansion Premises) equal to the excess
("Excess") from time to time by which the per square foot Basic Cost for the
Expansion Premises exceeds the Base Year Stop for the Expansion Premises, all as
more fully provided in Section 8 of the Lease; provided, however, that, until
September 30, 2002, (i) Tenant shall pay such Excess only for the Initial
Expansion Premises, and (ii) Tenant shall continue to pay Operating Expense
increases for the Seventh Floor Premises, to the extent such Operating Expenses
exceed the Base Year Stop, as more fully outlined in the Initial Lease for the
Sixth Floor Premises. The Base Year Stop for the Expansion Premises shall be the
1999 calendar year. Tenant's pro rata share of any such costs or expenses for
each floor of the Expansion Premises shall be 7.58 and for the entire Expansion
Premises shall be 22.74%.
b. Commencing on the first (1st) anniversary of the Expansion
Premises Commencement Date, and continuing during each calendar year or portion
thereof included in the Extended Term, Tenant shall pay as additional rent an
amount (per each square foot within the Expansion Premises) equal to the amount
from time to time by which the per square foot Real Estate Taxes exceed the Base
Real Estate Taxes for the Expansion Premises, all as more fully provided in
Section 19 of the Lease; provided, however, that, until September 30, 2002, (i)
Tenant shall pay such increased Real Estate Taxes only for the Initial Expansion
Premises, and (ii) Tenant shall continue to pay Real Estate Taxes for the
Seventh Floor Premises, to the extent such Real Estate Taxes exceed the Base
Real Estate Taxes, as more fully outlined in the Initial Lease for the Seventh
Floor Premises. The Base Real Estate Taxes for the Expansion Premises shall be
the 1999 calendar year. Tenant's pro rata share of any such Real Estate Taxes
for each floor of the Expansion Premises shall be 7.58%, and for the entire
Expansion Premises shall be 22.74%.
7. Improvements for Expansion Premises.
-----------------------------------
a. Section 7(a)(i) shall apply to the construction of the
improvements to the Expansion Premises, except that Tenant shall deliver the
Space Plan for (i) the Third Floor Premises to Landlord on or before February 1,
1999, (ii) the Second Floor Premises to Landlord on or before March 1, 1999, and
(iii) the Seventh Floor Premises to Landlord on or before September 1, 1999.
b. Sections 7(a)(ii) and 7(a) (iii) shall apply to the
construction of the improvements to the Expansion Premises.
c. Section 7(a)(iv) shall apply to the construction of the
improvements to the Expansion Premises, except that LaSalle Partners Management
Services will act as Landlord's construction manager.
-5-
d. Section 7(a)(v) shall apply to the construction of the
improvements to the Expansion Premises.
e. Section 7(b) shall apply to the construction of the
improvements to the Expansion Premises.
f. Section 7(c) shall apply to the construction of the
improvements to the Expansion Premises, except that Tenant shall have the right
to select Landlord's Contractor and its subcontractors, subject to Landlord's
approval, which approval will not be unreasonably withheld, conditioned or
delayed.
g. Sections 7(d) and (e) shall apply to the construction of
the improvements to the Expansion Premises.
h. Section 7(f) shall not apply to the construction of the
improvements to the Expansion Premises, and the following shall be inserted in
lieu thereof:
Landlord shall contribute up to $1,095,528.00 (the "Tenant
Allowance"), calculated at a rate of $15.00 per rentable square
foot for the Initial Expansion Premises, and $12.00 per rentable
square foot for the Seventh Floor Premises, towards the completion
of the buildout of the Expansion Premises, which Tenant Allowance
shall also be applied against the cost of all architectural,
engineering and construction drawings and fees related thereto, as
well as the cost of exterior Building signage. Any costs in excess
of the Tenant Allowance shall be paid solely by Tenant and shall be
considered additional rent under the terms of the Lease. Up to
$2.00 per rentable square foot of any unused portion of the Tenant
Allowance may be applied against costs related to networking,
telecommunications, furniture acquisition and installation, and
Tenants relocation to the Expansion Premises. Landlord agrees that
it will not charge Tenant a construction management fee. In
addition to the Tenant Allowance, Landlord shall:
(i) Provide $20,000.00 (at $10,000.00 per floor), to upgrade
the elevator lobbies on the second (2nd) and third (3rd)
floors, such alterations to be of a quality equal or
better than that which exists on the sixth (6th) floor in
the west tower of the Building, and subject to Landlord's
written approval, which approval will not be unreasonably
withheld.
-6-
(ii) Provide an amount up to $10,000.00 for (A) removal of
existing telecommunications and computer network cabling
and wiring in the Expansion Premises, (B) removal of all
specialty improvements and other items that Tenant deems
to be non-residual, and (C) the installation of any
required additional electrical capacity. To the extent
that Tenant requires such additional electrical capacity,
Landlord agrees that Tenant shall have the right to
connect to, and add to, transformers and other electrical
distribution equipment or facilities in the Building,
subject to (Y) Tenant executing a reasonably acceptable
indemnification to Landlord, indemnifying Landlord from
any claims or damages due to the addition of such
electrical capacity (exclusive of those covered by
insurance and any applicable waiver of subrogation), and
(Z) obtaining the approval of Landlord therefor, which
will not be unreasonably withheld, conditioned or
delayed. Notwithstanding the foregoing, any surplus from
the said $10,000.00 which is not used for the foregoing
work shall be retained by Landlord.
(iii) Ensure that all mechanical (including HVAC, electrical
and plumbing equipment serving the Expansion Premises is
in good working condition and performing at its original
specifications. Landlord warrants that the bathrooms in
the Expansion Premises are (Y) in material compliance
with the ADA as such compliance is required as of the
execution date of this Second Amendment, and (Z) of
similar quality to those in the Sixth Floor Premises.
i. Section 7(g) shall not be applicable to the construction of
improvements to the Expansion Premises.
8. Right of First Offer. Effective as of the execution date of this
--------------------
Second Amendment, Section 49 of the Lease shall be deleted in its entirety, and
the following inserted in lieu thereof:
Tenant shall have a first right of offer the first (1st) two (2)
times during the Extended Term (but not during any Renewal Tenn) that additional
space becomes available to lease on the fourth (4th) and sixth (6th) floors of
the east tower of the Building, 1593 Spring Hill Road (the "Additional Space"),
provided:
-7-
a. This right of first offer is subordinate to the rights of
(i) the current tenant in the Additional Space to renew, extend or otherwise
negotiate a new lease for the Additional Space; (ii) all future tenants in such
space, to renew or extend their leases; and (iii) existing tenants to the
Additional Space as of the date of execution of this Lease;
b. Tenant is not in default under this Lease beyond any
applicable grace or cure period, either at the time the Additional Space becomes
available or at the time Tenant is to take occupancy of the Additional Space;
c. Tenant has not previously assigned the Lease or sublet more
than thirty-four percent (34%) of the Initial Premises or the Expansion Premises
(except to an affiliated party as described in Section 11(e) of the Lease);
d. Landlord has not made a good faith determination that Tenant
does not remain creditworthy;
e. Tenant must lease all of the Additional Space offered;
f. Tenant exercises its option as provided in this Section by
delivering to Landlord written notice of its intention within seven (7) business
days after Tenant has received (or refused) notice from Landlord that the
Additional Space is available, which notice may be given by Landlord to Tenant
up to six (6) months prior to the anticipated availability date of the
Additional Space;
g. All terms of the lease of the Additional Space shall be based
upon Market Rent as hereinafter defined, and shall be negotiated in good faith
between the parties. For purposes of this Section, "good faith" shall mean
compliance with standards of decency and honesty; and
h. Tenant executes an addendum or a new lease for the Additional
Space within fifteen (15) business days after Landlord's receipt of Tenant's
notice to lease the Additional Space.
i. "Market Rent" for purposes of this Section means the annual
fair market rental, concessions and allowances charged to comparable tenants
leasing comparable office premises in comparable buildings for a comparable term
that would be agreed upon by a landlord and a tenant located in the Tysons
submarket of Fairfax County, Virginia, taking into consideration the following:
(i) landlord and tenant are well informed and well advised and each is acting in
what is considered its own best interests; (ii) the rental shall be defined to
include base rental (including any escalations), operating expenses and real
estate taxes, and any market concessions, including without limitation rental
abatement, tenant improvement allowance and additional tenant concessions, if
any, being negotiated at comparable buildings and (iii) the creditworthiness and
quality of tenant.
-8-
Notwithstanding the foregoing, in the event Landlord and Tenant
cannot reach an agreement on Market Rent within the above-referenced fifteen
(15) day period, Landlord, for a period of ninety (90) days thereafter, shall
not enter into a lease for the Additional Space with any other tenant at a more
favorable Market Rent without first offering such space to Tenant at such Market
Rent. Tenant shall have three (3) business days from receipt of Landlord's
notice of its intention to lease the Additional Space to another tenant to
accept or reject Landlord's revised offer. In the event that Tenant rejects
Landlord's revised offer, Tenant shall have no further rights to the Additional
Space that was so offered, and Landlord shall be free to lease the Additional
Space to any tenant on such terms as it sees fit, in its sole discretion.
If Tenant fails to comply with each of the above conditions
within the time specified, all time periods herein for Tenant being of the
essence, then this right of first offer will lapse and be of no further force
and effect, and Landlord shall have the right to lease all or any part of the
Additional Space to a third party under the same or any other terms and
conditions, whether or not such terms and conditions are more or less favorable
than those offered to Tenant. This right of first offer to lease the Additional
Space is personal to Tenant and is non-transferrable (except to an affiliated
party as described in Section 11(e) of the Lease).
9. Option to Renew. Effective as of the execution date of this
---------------
Second Amendment, Section 48 of the Lease shall be deleted in its entirety, and
the following inserted in lieu thereof:
Tenant shall have the right to extend the term of this Lease for
not more than two (2) additional five (5) year lease terms (each of which is a
"Renewal Term"), upon the following conditions:
a. Tenant is not in default under this Lease beyond any applicable
grace or cure period, either at the time any notice hereunder is given, or at
the time the Renewal Term is to commence;
b. Landlord has not made a good faith determination that Tenant
does not remain creditworthy;
c. Tenant has not previously assigned the Lease or sublet more
than thirty-four percent (34%) of the Expansion Premises (except to an
affiliated party as described in Section 11(e));
d. Tenant has delivered to Landlord written notice of its
intention to exercise this option, not less than 300 days prior to the end of
the Lease Term;
-9-
e. All lease terms for the Renewal Term shall be the same as in
this Lease, except that the Basic Rental and Landlord concessions, if any, for
the Renewal Tenn shall be negotiated in good faith between the parties; and
f. If Landlord and Tenant fail to agree as to all terms and
sign an Addendum to the Lease extending the Lease term as provided in this
Section at least 240 days prior to the end of the lease term, all time periods
for Tenant herein being of the essence, then Tenant's right to extend the term
of this Lease shall lapse and Tenant's renewal option shall be of no force and
effect. The renewal option is personal to Tenant and is non-transferrable
(except to an affiliated party as described in Section 11(e)).
10. Temporary Occupancy. Pursuant to a Sublease with EER Systems
-------------------
Corporation which expires on March 31, 1999, Tenant is currently occupying
approximately 15,095 rentable square feet on the second (2nd) floor in the east
tower of the Building (the "EER Systems Space"). Upon expiration of the EER
Systems Corporation Sublease, Landlord agrees that Tenant may, pursuant to the
provisions of this Section, continue to occupy the EER Systems Space, as well as
such other additional space on the second (2nd) floor in the east tower of the
Building as Landlord in its sole discretion may agree to make available to
Tenant and which Tenant may elect to occupy (the EER Systems Space and such
additional space, if any, is collectively referred to herein as the "Temporary
Space"). Occupancy of the Temporary Premises as provided in this paragraph shall
not be deemed occupancy for purposes of the commencement of any other
obligations under this Second Amendment. Landlord shall provide customary
Building services to Tenant while Tenant is occupying the Temporary Space.
Tenant agrees to accept the Temporary Space in its as is condition as of the
date hereof, and pay Landlord, as rent for the Temporary Space during such
Temporary Occupancy, at an annual rate of $22.50 per rentable square foot (the
"Temporary Rent") for the Temporary Space, commencing on April 1, 1999, and
terminating upon substantial completion of the Third Floor Premises. Tenant
shall otherwise comply with all terms and conditions of this Lease while
occupying the Temporary Space. Any overpayment of Temporary Rent for the final
month Tenant occupies the Temporary Space shall be credited towards Tenant's
Basic Rental for the Expansion Premises.
11. Signage.
-------
a. Landlord shall, at its sole cost and expense, install one (1)
suite entry sign per floor, and two (2) directory listings on the Building lobby
directory.
b. Upon final execution of this Second Amendment, and after
obtaining Landlord's written approval, Tenant shall have the right to install,
at its sole cost and expense, illuminated Building signage in accordance with
the specifications for the AT&T sign which was previously on the Building,
copies of which are attached to this Amendment as Exhibit B. The sign shall be
placed in the same location as the AT&T sign, on the top of the
-10-
exterior of ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ facing Spring Hill Road. Tenant shall have the
exclusive right to signage in the area noted on ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, as
reflected on Exhibit C attached to this Amendment. Provided Tenant's signage
satisfies the foregoing criteria, Landlord shall not unreasonably withhold its
consent to such signage. Tenant shall be responsible for obtaining all county
and municipal permits and approvals. Tenant shall maintain such signage during
the Lease Term, and shall remove such signage and repair all damage to the
Building exterior, at its sole cost and expense, upon the termination of the
Lease.
12. Parking.
-------
a. Tenant shall be entitled to park in the Building parking
lots, at a parking ratio of not more than 3.5 vehicles per 1,000 rentable square
feet. Such parking shall be made available to Tenant at no cost or expense
through September 30, 2002. Commencing on October 1, 2002, Tenant shall pay to
Landlord as additional rent the Market Cost, if any, for parking at the
Building. Market Cost shall be determined as follows:
Landlord shall provide Tenant with notice of the proposed Market
Cost for parking effective October 1, 2002, by delivering written notice to
Tenant no earlier than July 1, 2002 or later than October 15, 2002. Landlord's
determination of Market Cost shall be based on separately stated parking costs
charged to tenants under: (1) leases of at least one (1) full floor for office
space in the Building signed between October 1, 2001 and September 30, 2002; and
(2) leases of at least one (1) full floor signed between October 1, 2001 and
September 30, 2002, at the following buildings (hereinafter the Competitive
Buildings):
1. American Center (8300 and ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇)
2. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ (▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Road)
3. Tysons International Plaza (1919 & ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇)
4. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
5. ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇ determining Market Cost: (1) Landlord shall take into account
different rates for surface and garage parking if the lease(s) signed in the
Building or the Competitive Buildings contain different rates; and, (2) the
parking costs and lease(s) used to establish Market Cost shall be offered to
-----------------
third party tenants as a component of rentals that incorporate separately stated
then current market rents and concessions.
b. If Tenant does not agree with Landlord's proposed Market Cost
for parking, Tenant shall notify Landlord within ten (10) days of receipt of
Landlord's notice of the proposed Market Cost, and then the Market Cost shall be
determined as follows:
(1) Within ten (10) days of Tenant's notice to Landlord of
its intent to utilize this provision, Landlord and Tenant shall mutually select
an experienced real
-11-
estate broker, who must have at least ten (10) years leasing experience in the
Tysons Corner, Virginia submarket;
(2) Within ten (10) days after appointment, the designated
broker shall determine the new parking space rental to be used; provided,
however, that if such broker requires additional time within which to determine
such new parking space rental, the designated broker shall have up to thirty
(30) days after appointment to make the determination.
(3) Both parties shall divide equally the expense of the
designated broker.
c. If Landlord decides to charge Tenant for parking as permitted
hereunder, Landlord agrees that the cost or expense of any parking attendant for
the parking lot will not be assessed as an Operating Expense or Basic Cost under
the Lease.
d. Should Landlord decide not to charge Tenant for parking
pursuant to this Section, Landlord shall thereafter forfeit its rights to charge
for parking for the balance of the Extended Term.
13. Sixth Floor Premises. Tenant is currently occupying the Sixth
----------------------
Floor Premises pursuant to the Initial Lease, and will continue to occupy the
Sixth Floor Premises and be bound by all obligations under the Lease with
respect to said premises until substantial completion of the Seventh Floor
Premises, which is anticipated to occur on or about March 1, 2000. Upon
substantial completion of the Seventh Floor Premises, Tenant will vacate the
Sixth Floor Premises as if the term of its lease for said premises had
terminated, and all obligations under the Initial Lease with respect to the
Sixth Floor Premises will continue to apply to the Seventh Floor Premises
through September 30, 2002. As of October 1, 2002, all terms of the Lease, as
modified by this Second Amendment, shall apply to the entire Expansion Premises,
including the Seventh Floor Premises.
14. Additional Space Notice. Landlord agrees to provide written
-------------------------
notice to Tenant of any vacancy or pending vacancy within ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇.
15. Lease Provisions Modified. Effective as of the Expansion
---------------------------
Premises Commencement Date, the following Lease provisions are hereby modified:
a. The third paragraph of Section l(a) of the Lease is deleted
in its entirety, and the following inserted in lieu
thereof:
-12-
Basic Costs shall not include:
A. cost of expenses associated with leasing space in the Building
or the sale of any interest in the Building, including,
without limitation, advertising and marketing, commissions or
any amounts paid for or on behalf of tenants such as space
planning, moving costs, rental and other tenant concessions;
B. amounts paid to any partners, shareholder, officer or
director of Landlord, for salary or other compensation;
C. cost of electricity outside normal business hours sold to
tenants (or requested by tenants) of the Building by Landlord
or any other special service to the tenants or service in
excess of that furnished to Tenant whether or not Landlord
receives reimbursement from such tenants as an additional
charge;
D. expenses for repairs, replacements or improvements arising
from the initial construction of the Building to the extent
such expenses are either (i) reimbursed to Landlord by virtue
of warranties from contractors or suppliers or (ii) result by
reason of deficiencies in design or workmanship;
E. any amounts paid to any person, firm or corporation related or
otherwise affiliated with Landlord or any general partner,
officer or director of Landlord or any of its general
partners, to the extent the same materially exceed arms-length
competitive prices paid for the services or goods provided;
F. costs of repairs incurred by reason of fire or other casualty
or condemnation (except for commercially reasonable
deductibles under applicable insurance coverage);
G. costs of renovating or otherwise improving space for tenants
or in renovating space vacated by any tenant;
H. costs relating to maintaining Landlord's existence, either as
a corporation, partnership, or other entity, such as
-13
trustee's fees, annual fees, partnership organization or
administration expenses, deed recordation expenses, legal and
accounting fees (other than with respect to Building
operation), and legal fees and expenses which arise in
disputes with tenants;
I. interest or penalties arising by reason of Landlord's failure
to timely pay any Operating Expense;
J. costs incurred to remove or control any hazardous or toxic
wastes, materials or substances from either the Building or
land;
K. depreciation of the Building or any equipment, machinery,
fixtures or improvements therein;
L. Landlord's general corporate overhead;
M. ground rents;
N. costs incurred to remedy, repair or otherwise correct any
defects or violations of the Building, or by reason of any
changes in governmental laws, rules or regulations occurring
during the lease term;
0. the cost of capital improvements made to the Building, other
than capital improvements, modifications or equipment required
by federal, state or local ordinance, rule, regulation or law
(except those required to correct a violation existing as of
the date hereof or which is hereafter created by Landlord) or
determined by Landlord in good faith to result in savings or
reductions in Basic Cost generally, in which case the cost
thereof shall be included in Basic Cost for the calendar year
in which the cost shall have been incurred and in subsequent
calendar years, on a straight line basis, such items will be
amortized over an appropriate period and with an appropriate
interest factor selected in good faith by Landlord;
P. principal and interest on mortgage or other debt payments;
and
-14-
Q. wages, salaries or other compensation or benefits for
employees applicable to the time spent working at or with
respect to other buildings, other than the Building manager
(provided that with respect to each employee that services the
Building and other buildings, an equitable portion of such
employee's salary shall be included in Basic Cost, as
applicable).
b. The first sentence of Section 11 (c) of the Lease is hereby deleted
in its entirety, and the following sentence is inserted in lieu
thereof:
Landlord's Right of First Refusal. Landlord shall have
---------------------------------
the right, within twenty (20) days after receipt of the notice
from Tenant, required under Section 11 (b)(i) above, to elect:
(i) if Tenant proposes to assign the Lease or sublease more than
thirty four percent (34%) of the Premises (at any one time,
either with one [1] or more than one [1] subleases), to terminate
this Lease in its entirety, in which event the Lease shall
terminate upon the effective date of the proposed assignment or
sublease, and Tenant shall vacate the Premises as of such
effective date in accordance with the applicable provisions of
this Lease; (ii) if Tenant intends to sublet more than thirty-
four percent (34%) of the Premises (at any one time, either with
one [1] or more than one [1] subleases), to terminate this Lease
only with respect to such portion of the Premises, in which case
Tenant shall vacate such portion as provided in subsection (i)
above; or (iii) to require Tenant to pay Landlord, within ten
(10) days of receipt, one-half (1/2) of the amount of rent
payable under such assignment or sublease in excess of the amount
of rent payable by Tenant hereunder with respect to the Premises
or, in the event of a sublease, that portion of the Premises
sublet, offset by any direct expenses incurred by Tenant actually
incurred in assigning the Lease or subleasing such portion of the
Premises, and, additionally, offset by the cost of any service
which Tenant provides subtenant or assignee that Tenant does not
receive from Landlord, costs Tenant incurs under the Lease (such
as payments due under Section 8 above) which are not passed
through to subtenant or assignee, and the value of the sale or
rental of assets which are not provided by Landlord (such as
Tenant's furniture) to subtenant or assignee (all amortized in
equal monthly payments over the remaining term of the Lease, if
assigned, or, if applicable, over the initial term of such
sublease).
-15-
c. The following is added to the end of Section 11(c) of the Lease:
Notwithstanding anything to the contrary contained in this
subsection, Landlord may not exercise any rights to recapture under
subsection (i) or (ii) herein, if Tenant assigns the Lease or
subleases all or a part of the Premises to a Subsidiary or
Affiliate pursuant to the provisions of Section 11(e) below.
d. Subsection 11(e)(ii) shall be redesignated 11(e)(iii), and the
following 11(e)(ii) inserted in the Lease:
(ii) any bona fide entity to which Tenant assigns for value all, or
substantially all, of its assets, so long as (A) the entity
receiving such assets assumes this Lease, and all obligations
hereunder, and (B) the entity receiving such assets can demonstrate
to Landlord's reasonable satisfaction by balance sheets and other
financial documentation submitted to Landlord that it is no less
capable than Tenant of servicing all of Tenant's financial
obligations under this Lease; and
e. The Last sentence of Section 13 of the Lease is deleted in its
entirety, and the following inserted in lieu thereof:
Landlord warrants that, as of the execution date of the Second
Amendment, neither the Land nor the Building is encumbered by a
ground lease, mortgage or deed of trust. In consideration for
Tenant's agreement to attorn to any lender or ground lessor, and as
a condition of such subordination and attornment, Landlord agrees
to obtain a non-disturbance agreement, in a form reasonably
acceptable to such mortgagee or ground lessor, from any future
mortgagee(s) or ground lessor(s). Such non-disturbance agreement
shall provide that Tenant's tenancy hereunder shall not be
disturbed in the event of a mortgage foreclosure, ground lease
termination or other similar event, so long as Tenant continues to
comply with its obligations under this Lease.
f. The following shall be added to the end of Section 17 of the
Lease:
Notwithstanding the foregoing, if neither Landlord nor Tenant has
terminated this Lease and the repairs are not substantially
completed within thirty (30) days following the date upon which
-16-
Landlord estimated that such work would be completed, Tenant shall
have the right to terminate this Lease following the end of such
period by delivering written notice to Landlord (the "Damage
Termination Notice"), effective as of a date set forth in the
Damage Termination Notice (the "Damage Termination Date"), which
Damage Termination Date shall not be earlier than thirty (30) days
after the delivery of the Damage Termination Notice.
Notwithstanding the foregoing, if Tenant delivers a Damage
Termination Notice to Landlord, then Landlord shall have the right
to suspend the occurrence of the Damage Termination Date for a
period ending thirty (30) days after the Damage Termination Date
set forth in the Damage Termination Notice by delivering to Tenant,
within ten (10) business days of Landlord's receipt of the Damage
Termination Notice, a written notice certifying in good faith that
the repairs shall be substantially completed within thirty (30)
days after the Damage Termination Date. If repairs shall be
substantially completed prior to the expiration of such additional
thirty (30) day period, then the Damage Termination Notice shall be
of no force or effect, but if the repair shall not be substantially
completed within such additional thirty (30) day period, then, this
Lease shall terminate upon the expiration of such additional thirty
(30) day period.
g. Section 20(c) is deleted in its entirety, and the following
inserted in lieu thereof:
(c) Tenant shall fail to comply with or observe any other provision
of this Lease (or any other lease now or hereafter executed by
Tenant in connection with space in the Building), and same is not
cured within fifteen (15) days after Landlord's written notice
thereof to Tenant. Notwithstanding the foregoing, if (i) the
default is of such a nature that fifteen (15) days is an
unreasonably short period of time in which to cure the default;
(ii) Tenant has commenced curing the default within the fifteen
(15) day period; (iii) the default is of such a nature that it
poses no health or safety threat to Tenant or other occupants of
the Building; and (iv) Tenant is continuing to diligently pursue a
cure of such default, then Tenant shall have an additional sixty
(60) days in which to complete the cure of said default.
h. The second sentence of Section 25 is deleted, and the following
inserted in lieu thereof:
-17-
In the case of the filing of any such lien Tenant will promptly,
and in any event within thirty (30) days after receipt of notice of
the filing thereof, satisfy or release such lien by means of
payment thereof, bonding Landlord against any loss occasioned
thereby (in which case Tenant shall have the right in due diligence
to contest and dispute such lien so long as such bond remains in
place), or take such other action as may be otherwise acceptable to
Landlord.
i. The word "reasonably" shall be inserted in the fourth line, between
the words "as required," in the first clause of Section 29 of the
Lease.
j. A second paragraph shall be added to Section 29 as follows:
Landlord shall from time to time, within ten (10) business days
after Tenant shall have requested the same of Landlord, execute,
acknowledge and deliver to Tenant a written instrument in
recordable form and otherwise in such form as reasonably required
by Tenant (i) certifying that this Lease is in full force and
effect and has not been modified, supplemented or amended in any
way (or, if there have been modifications, supplements or
amendments thereto, that it is in full force and effect as
modified, supplemented or amended and stating such modifications,
supplements and amendments); and (ii) stating any other fact or
certifying any other condition reasonably requested by Tenant. Such
certifications and representations shall not act as an amendment to
this Lease and shall not vary the terms of this Lease or the rights
of the Landlord or Tenant hereunder.
k. Section 36 shall be deleted in its entirety, and the following
inserted in lieu thereof:
36. LANDLORD LIABILITY.
------------------
Notwithstanding anything to the contrary in the Lease or in any
document delivered by Landlord in connection with the consummation
of the transaction contemplated hereby, it is expressly understood
and agreed that Landlord is acting solely on behalf and for the
benefit of Separate Account No. 8 and Landlord's liability shall be
limited to, and payable and collectible only out of the interest of
Landlord in the Building,
-18-
and no other property or asset of Landlord or of any of Landlord's
directors, officers, employees, shareholders, contractholders or
policyholders, shall be subject to any lien, levy, execution,
setoff or other enforcement procedure for satisfaction of any right
or remedy of Tenant in connection with the transaction contemplated
hereby.
1. The following shall be added to the end of Section 38:
Notwithstanding the foregoing, in the event Tenant's stock is
hereafter traded on a nationally recognized stock exchange, and in
lieu of the foregoing Statements, Tenant agrees to provide to
Landlord within 14 days of request by Landlord but no more than
once per year, Tenant's most recent distributed annual report
15. Brokerage. Landlord and Tenant each represents and warrants to
---------
the other that, except for LaSalle Partners Management Services, Inc. and
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇, neither of them has employed or dealt with any broker or
finder who is entitled to a commission or other payment in connection with this
Second Amendment. Landlord and Tenant shall each indemnify and hold harmless the
other from and against any claim or claims for a commission or other payment
arising from or out of any breach of the foregoing representation and warranty.
Landlord has agreed to pay such commission pursuant to a separate agreement or
agreements.
16. Defined Terms. Except as otherwise expressly provided herein,
---------------
all capitalized defined terms shall have the same meanings as provided in the
Lease.
17. Headings. Headings contained in this Second Amendment are for
--------
convenience only and are not substantive to the provisions of this Second
Amendment.
18. Lease Terms Ratified. Except as otherwise expressly provided
--------------------
herein, and unless inconsistent with the terms hereof, all other terms,
conditions and covenants of the Lease are hereby ratified and confirmed, and
shall be applicable to the Expansion Premises.
-19-
IN WITNESS WHEREOF, the parties have executed this Second Amendment by affixing
their hands and seals as of the date noted above.
Landlord:
WITNESS/ATTEST: THE EQUITABLE LIFE ASSURANCE
SOCIETY OF THE UNITED STATES
/s/ ▇▇▇▇▇▇▇▇▇ ??????? By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ [SEAL]
----------------------- --------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: INVESTMENT OFFICER
Tenant:
WITNESS/ATTEST: AVERSTAR, INC.
/s/ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ [SEAL]
------------------------ --------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: PRESIDENT
-▇▇-
▇▇▇▇▇▇▇ ▇-▇
[GRAPHIC]
SECOND FLOOR PLAN
-----------------
Exhibit A-2
[GRAPHIC]
FLOOR PLAN - 3RD FLOOR
----------------------
Exhibit A-3
[GRAPHIC]
Exhibit B-1
[GRAPHIC]
INSTALLATION U.L. APPROVED
SECTION CONSTRUCTION
============ -------------
AT&T
EXHIBIT B-2
[LOGO OF AT&T]
REPRESENTS
LIGHT ELEMENTS ON
DARK BKG'D.
INTERNALLY ILLUMINATED GLOBE AND LETTERS:
U.L. GLOBE REQ'D.
SELF CONTAINED TRANSFORMERS.
GLOBE IS 8'.0" DIAMETER/HORIZONTAL LOGO ELEMENTS ARE TO BE ROUTED FROM FACE OF
GLOBE AND BACKED WITH WHITE TRANSLUCENT ACRYLIC WHITE TO CONTINUE ONTO RETAINER
FACE (PAINTED).
BKG'D. OF ELEMENTS AND CABINET RETURN ALUMINUM FINISHED TO MATCH PMS 481
c(BLDG. COLOR) AGGREGATE LETTERS TO HAVE WHITE TRANSLUCENT ACRYLIC FACES WITH
ALUMINUM CHANNELS FINISHED 481 c(BLDG. COLOR). RETAINERS 481c
FACE OF GLOBE AND LETTERS TO OCCUPY THE SAME PLANE. 1/4" SPACE REQUIRED BETWEEN
WALL AND (GLOBE/LTRS). FOR DRAINAGE.
SPECIFICATION SHEET 6 AT&T GUIDELINES
--------------------------------------
REV/ 4/26 '89
Exhibit B-3
[LOGO OF AT&T]
[GRAPHIC]
BLDG. ELEVATION AT SIGN LOCATION
================================
S C A L E: 3/32" = 1' - 0"
EXHIBIT C
AVERSTAR EXCLUSIVE SIGNAGE AREA
[GRAPHIC]