EXHIBIT 10.4
AGREEMENT OF LEASE
Between
COMMUNITY MOTOR PROPERTY
ASSOCIATES LIMITED PARTNERSHIP (Landlord)
and
FEDERAL DATA CORPORATION (Tenant)
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
AGREEMENT OF LEASE
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▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
THIS AGREEMENT OF LEASE (hereinafter referred to as this "Lease"),
made this 5th day of December, 1984 by and between COMMUNITY MOTORS PROPERTY
ASSOCIATES LIMITED PARTNERSHIP, a Maryland limited partnership having its
principal office in ▇▇▇▇▇▇▇▇▇▇ County, State of Maryland (the "Landlord"), and
FEDERAL DATA CORPORATION, a corporation organized and existing under the laws of
the District of Columbia, having an address at ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the ("Tenant").
ARTICLE 1. PREMISES
SECTION 1.1. Landlord hereby leases to Tenant, and Tenant hereby
leases from Landlord, subject to the terms and conditions hereinafter set forth,
to each of which Landlord and Tenant hereby agree, all of that real property,
situated and lying in ▇▇▇▇▇▇▇▇▇▇ County, Maryland which consists of the space
containing approximately 65,722 square feet of Rentable Area (hereinafter
defined), located on the second (2nd), third (3rd), tenth (10th), eleventh
(11th) and twelfth (12th) floors shown outlined in red on the plans attached
hereto as Exhibit A (the "Premises") and located in an office building to be
known as ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (the "Building"), that
Landlord shall construct on a tract of land (the "Land") situated in ▇▇▇▇▇▇▇▇▇▇
County, Maryland and described in Schedule I attached hereto and made a part
hereof (the Premises, the remainder of the Building and the Land being referred
to collectively as the "Property"), together with the right to use, in common
with others, the lobbies, entrances, stairs, elevators, off-street loading areas
and other common areas of the Building. For purposes of this Lease, the term
"Building" means the office tower in which the Premises will be located, as well
as the retail areas, concourses, lobbies, plazas, walkways, open spaces,
landscaped areas, common areas and garage located on, above, beneath or
immediately adjacent to the Building, and any truck accessways, loading docks,
or other facilities, if any, which serve the office tower, but excluding the
residential space in the Building and any areas and facilities exclusively
serving the residential space.
Section 1.2.
1.2.1. Prior to the expiration of thirty (30) days after the
Commencement Date (hereinafter defined), Landlord shall deliver to Tenant a
certificate from Landlord's architect for the Building (the "Building
Architect") certifying the rentable area ("Rentable Area"), as determined in
accordance with the Washington Board of Realtors standard method of measurement,
for (i) the Premises (the "Rentable Area of the Premises") and (ii) the Building
(the "Rentable Area of the Building"), excluding space below the ground floor
level. A similar certificate from the Building Architect shall be delivered to
Tenant within thirty (30) days after any increase or decrease in the size of the
Premises or
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the Building for any reason whatsoever. Tenant shall have the right to have an
architect ("Tenant's Architect") selected by Tenant verify the information
contained in the certificate submitted by the Building Architect hereunder by
measuring the Rentable Area of the Premises and/or the Rentable Area of the
Building. In the event there is a discrepancy between the information contained
in the certificate submitted by the Building Architect and the Rentable Area of
the Premises and/or the Rentable Area of the Building determined by Tenant's
Architect, and in the event that Landlord and Tenant do not mutually agree upon
the Rentable Area of the Premises and the Rentable Area of the Building, the
dispute shall be submitted to arbitration in accordance with the provisions of
Article 21 hereof.
1.2.2. If (a) the Rentable Area of the Building or the
Rentable Area of the Premises, as the case may be, is changed and Tenant pays
Rent (hereinafter defined) for any period prior to the final determination of
any such Rentable Area or (b) Tenant makes any payment of Rent prior to the
final determination of the initial Rentable Area of the Premises or the initial
Rentable Area of the Building and any such Rentable Area is subsequently
adjusted, the Rent shall be retroactively adjusted to reflect such Rentable Area
as of the date of such change. If the amount of Rent payable for such period
exceeds the amount theretofore paid by Tenant, Tenant shall promptly pay the
amount of such excess to Landlord. If the amount of Rent payable for such
period is less than the amount theretofore paid by Tenant, Landlord shall
promptly pay the amount of such overpayment to Tenant, Landlord shall promptly
pay the amount of such overpayment to Tenant, or credit the same to the next
payments of Rent due hereunder.
1.2.3. As may be reasonably required by either party, the
parties shall, from time to time, execute instruments confirming the Rentable
Area of the Premises and the Rentable Area of the Building.
ARTICLE 2. TERM
SECTION 2.1. The term of this Lease (the "Term") shall commence on a
date (the "Commencement Date") which is the earlier of (a) five (5) days after
the date on which the Premises are deemed ready for occupancy in accordance with
the terms of Section 2.2 hereof but in no event earlier than April 1, 1986; or
(b) the date of Tenant's occupancy of all of the Premises for the regular
conduct of its business operations. In the event that tenant takes occupancy of
a part but less than all of the Premises prior to the Commencement Date, Tenant
shall pay to Landlord as rent for each day during such period of partial
occupancy prior to the Commencement Date an amount equal to one three hundred
sixty-fifth (1/365th) of the Base Rent (defined in Section 4.1.1) multiplied by
a fraction whose numerator is the number of square feet of Rentable Area
occupied by Tenant and whose denominator is the total number of square feet of
Rentable Area of the Premises. Unless sooner terminated, the Term shall
terminate on the last day of the calendar month during which the tenth (10th)
anniversary of the Commencement Date occurs (the "Expiration Date"). For
purposes of this Lease, if the Commencement Date occurs on the first day of a
calendar month, the first Lease Year is the twelve (12)-month period commencing
on such day, and if the Commencement Date occurs on other than the first day of
a calendar month, the first Lease Year is the twelve (12)-month period
commencing on the first day of the first calendar month
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after the Commencement Date. Each subsequent Lease year shall begin on the
annual anniversary of the commencement of the first Lease Year.
SECTION 2.2.
2.2.1. The Premises shall be deemed ready for occupancy when
all of the following shall have occurred:
(a) there shall have been issued by the appropriate authorities
in ▇▇▇▇▇▇▇▇▇▇ Country, Maryland such certificate or certificates as may be
required in order that the Premises may be lawfully occupied by Tenant;
(b) the Leasehold Improvements and Building Shell Work (as each
is defined in Exhibit B) shall have been Substantially Completed; provided, that
the Premises are accessible and fully usable and that the non-completion of any
work to be done does not adversely affect Tenant's use, occupancy and enjoyment
of the Premises for the normal conduct of Tenant's business operations.
Landlord shall diligently complete all such incomplete work as soon as
reasonably practicable;
(c) the Premises are free from debris and broom clean;
(d) all exterior scaffolding, debris chutes located on the
facades of the Building and construction machinery situated in public areas, the
exterior of the Building and the floors to be occupied by Tenant shall have been
removed, the Building's ground floor lobby, public areas on the ground floor
(including the Building's entrance areas ) and all floors to be occupied by
Tenant are substantially completed and presentable, with all finish items
substantially completed, and such floors shall be free of construction debris
and available for use by the public, and all loading docks and those portions of
the Building parking garage to be used by Tenant shall have been substantially
completed and be accessible and usable for loading and parking purposes;
(e) the HVAC, passenger and freight elevators and utility and
plumbing systems (including telephone trunk lines to the Premises) for the
Premises, the lobby and all common and public areas of floors to be occupied by
Tenant are Substantially Completed and operating in accordance with the Plans
and Specifications referred to in Section 6.1 that have been approved by Tenant,
subject, however, to such balancing as may be necessary for the HVAC systems,
and to Landlord's right to use one (1) elevator exclusively for construction
work in the Building when needed, so long as the number of elevators available
are adequate to serve Tenant's needs;
(f) all facilities and systems serving the Building and passing
through the Premises or any part thereof shall have been enclosed and no access
through the Premises which will interfere with Tenant's use thereof for the
purposes intended is required to complete the same, and the work remaining to be
done in the Building shall be of such nature as will not materially interfere
with Tenant's use and occupancy of the Premises for the normal conduct of
Tenant's business operations;
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(g) the permanent roof system of the Building shall have been
installed and sealed, and all windows in the Premises shall have been installed
and sealed;
(h) all walls exposed to elevator lobbies on all floors to be
occupied in whole or in part by Tenant and other public or common areas on such
floors shall have been Substantially Completed;
(i) all rooms located in the Building core on all floors to be
occupied in whole or in part by Tenant, including mechanical rooms, toilet
rooms, electrical closets, janitor closets, freight elevator anterooms, lobbies
and elevator cars, and stairways, shall have been Substantially Completed with
the Building Standard (as defined in Exhibit B) finishes, fixtures and
accessories corresponding to each particular core area;
(j) Landlord shall have delivered to Tenant the certificate of
the Building Architect certifying the matters set forth in subparagraphs (b),
(c), (d), (e), (f), (g), (h) and (i) above, except that the Building Architect
shall not be required to certify as to whether any incomplete work would
adversely affect Tenant's use, occupancy and enjoyment of the Premises, but only
as to what incomplete work exists;
(k) Landlord shall have given Tenant at least sixty (60) days
prior written notice of the date on which Landlord anticipates that the
Completion Date (hereinafter defined) will occur and Landlord shall provide
Tenant with access to the Premises in accordance with Section 6.2 for a
substantially continuous period of forty-five (45) days prior to the anticipated
Completion Date for purposes of performing Tenant's Finish Work (hereinafter
defined); provided, that (i) if the Completion Date does not occur as
anticipated, the Completion Date shall not occur before the date which is thirty
(30) days after Landlord's notice to Tenant notifying Tenant of the revised
Completion Date and (ii) in no event shall the Completion Date be earlier than
sixty (60) days after the date that Landlord sends the initial sixty (60) day
notice. The Completion Date shall be the date on which all of the conditions
set forth in paragraphs (a)-(j) of this subsection 2.2.1 are satisfied.
2.2.2. In the event the Building's landscaping has not been
completed prior to the Completion Date, Landlord shall complete landscaping as
soon a possible (taking into consideration planting seasons).
2.2.3. For purposes of this Section 2.2, "Substantially Completed"
means full completion, except for minor or insubstantial details of
construction, decoration, mechanical adjustment or installation.
2.2.4. In addition to the sixty (60)-day notice given by Landlord
to Tenant pursuant to the provisions of paragraph (k) of subsection 2.2.1,
Landlord shall give Tenant ninety (90) days prior written notice of the date on
which Landlord anticipates the Completion Date will occur, which date Landlord
represents and warrants shall be no earlier than fifteen (15) days before and no
later than fifteen (15) days after the date on which the Completion Date
actually occurs.
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SECTION 2.3. When the Completion Date has occurred, Landlord
shall, in accordance with the foregoing, fix the Commencement Date and shall
notify Tenant of the date so fixed. If Tenant shall dispute the fixing of the
Commencement Date by Landlord, Tenant shall so notify Landlord within thirty
(30) days after Landlord's notice. If the parties fail to agree upon the
Commencement Date within ten (10) days of Tenant's notice in accordance with the
previous sentence, either party may submit the dispute to arbitration in
accordance with the provisions of Article 21 hereof, but Tenant agrees not to
delay payment of Rent based upon the Commencement Date asserted by Tenant. When
the Commencement Date has been determined as herein provided, the parties shall
within fifteen (15) days thereafter, at either party's request, execute a
written instrument in the form of Exhibit C confirming the Commencement Date and
the Expiration Date. Any failure of the parties to execute such written
instrument shall not affect the validity of the Commencement Date as fixed and
determined as aforesaid.
ARTICLE 3. USE
SECTION 3.1. The Tenant shall throughout the Term occupy and use the
Premises only for purposes permitted by applicable zoning laws; provided,
however, that Tenant shall not use the Premises for the purpose of operating a
medical clinic, employment agency or school that will use any part of the
Premises for classroom purposes without obtaining Landlord's prior written
consent, which may be withheld in Landlord's sole discretion.
SECTION 3.2. The conduct of Tenant's business in the Premises
shall not violate any applicable law, ordinance or regulation existing on the
date hereof or enacted in the future.
SECTION 3.3. Except for the parking of automobiles in the ordinary
course of business, the Tenant shall not place or permit its agents or employees
to place any trash or other objects anywhere within the Building or the rest of
the Property (other than within the Premises) without first obtaining Landlord's
express written consent thereto.
ARTICLE 4. RENT
SECTION 4.1. As rent for the Premises (all of which is referred to
collectively as "Rent"), Tenant shall pay to Landlord all of the following:
4.1.1. An annual base rent ("Base Rent") of One Million Six Hundred
Forty-Three Thousand Fifty and 00/100 Dollars ($1,643,050.00) for each Lease
Year during the Term, payable in equal monthly installments of One Hundred
Thirty-Six Thousand Nine Hundred Twenty and 83/100 Dollars ($136,920.83) each,
subject to adjustment pursuant to Section 1.2, which amount shall be equal to
Twenty-Five Dollars ($25.00) multiplied by the Rentable Area of the Premises,
subject to the credit set forth in Section 4.3.4 hereof. If the Term commences
on a day other than the first (1st) day of a calendar month, for the first month
of the first Lease Year the monthly installment of Base Rent shall be a fraction
of the Base Rent, the numerator of which shall be the number of days of such
calendar month
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failing within the Term, and the denominator of which shall be three hundred
sixty-five (365); and
4.1.2. Additional rent ("Additional Rent") in the amount of any
payment to be made by Tenant to Landlord referred to as such in any provision of
this Lease which accrues while this Lease is in effect.
SECTION 4.2. Commencing on the first day of the second (2nd) Lease
Year and on the first day of each Lease Year thereafter, the Base Rent shall be
increased by the greater of:
(a) An amount equal to the lesser of:
(i) An amount equal to the product of the Base Rent multiplied
by a fraction, the denominator of which shall be the CPI-U (as hereinafter
defined) for the second month preceding the Commencement Date, and the numerator
of which shall be the CPI-U for the second month preceding such Lease Year and
then multiplying the product obtained by thirty percent (30%). The CPI-U shall
be defined as the Consumer Price Index for All Urban Consumers, All Items
Washington, D.C. SMSA Base, 1967 = 100, published by the Bureau of Labor
Statistics of the Department of Labor. In the event the CPI-U is replaced by a
successor index established by the Department of Labor, such successor index
shall be substituted and if the CPI-U ceases to exist with no such successor
index, then the parties shall agree upon a similar substitute. If the parties
cannot agree, then the matter shall be submitted to arbitration in accordance
with Article 21 hereof of determine adjustments in Base Rent; or
(ii) An amount equal to four percent (4%) multiplied by the Base
Rent payable by Tenant for the immediately preceding Lease Year;
or
(b) An amount equal to one and one-half percent (1-1/2%) multiplied
by the Base Rent payable by Tenant for the immediately preceding Lease Year.
SECTION 4.3.
4.3.1. As used herein, the term "Annual Operating Costs" shall mean
the actual costs to Landlord (net of discounts, credits, rebates or
reimbursements from insurance or payments from any party) of operating and
maintaining the Building during each calendar year of the Term computed on an
accrual basis. Annual Operating Costs shall be determined according to
generally accepted accounting principles which shall be consistently applied,
and shall include, by way of example rather than of limitation, (a) Real Estate
Taxes (defined in Section 4.4); provided, however, that if, by law, any
assessment of Real Estate Taxes may be divided and paid in installments, then,
for the purposes of this subsection 4.3.1, (i) such assessment shall be deemed
to have been so divided, (ii) such assessment shall be deemed payable in the
maximum number of installments permitted by law, and (iii) there shall be
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deemed included in Annual Operating Costs for each calendar year the
installment(s) of such assessment becoming payable during such calendar year,
together with interest payable during such calendar year on such installment(s)
and on all installments thereafter becoming due as provided by law, all as if
such assessment had been so divided; (b) charges or fees for, and taxes on, the
furnishing of water, sewer service, gas, fuel, or other utility services to the
Building, provided, however, that with respect to electricity, only the cost
incurred by Landlord for providing electricity to common or public areas of the
Building and in connection with the HVAC system of the Building shall be
included in Annual Operating Costs; (c) costs of elevator service, and charges
or fees for the maintenance and repair of common areas and mechanical and
electrical systems of the Building and structural members of the Building such
as exterior walls, roof, and load-bearing walls and for grounds maintenance,
janitorial service and trash removal; (d) charges or fees for any necessary
government permits, except such permits as are required in connection with the
construction of the Building or any capital improvements thereto; (e) a
management fee in an amount not to exceed the prevailing market rate charged in
arms' length transactions; (f) premiums for hazard, liability, rent insurance,
workmens' compensation or similar insurance upon the Building or portions
thereof which Landlord is required to carry under this Lease or under any
applicable mortgage or deed of trust; (g) costs arising under service contracts
with independent contractors for services provided to the Building and
benefitting all tenants other than those tenants providing their own services;
(h) accountants' fees and expenses incurred for the computation of the Annual
Operating Costs and preparation of the Operating Costs Statement (hereinafter
defined); and (i) legal fees incurred in order to reduce Annual Operating Costs
or to review contracts for the provision of services or items included in Annual
Operating Costs to the extent that such fees are not reimbursed to Landlord
pursuant to subsection 4.4.2; and (j) minor equipment not exceeding One Thousand
Dollars ($1,000) each calendar year and supplies.
4.3.2. Notwithstanding anything in subsection 4.3.1 to the contrary,
Annual Operating Costs shall not include (a) the costs of repairs, alterations,
capital improvements and other items which under generally accepted accounting
principles are properly classified as capital expenditures (except to the extent
otherwise provided in Section 4.3.10); (b) painting or decorating other than in
common or public areas of the Building; (c) any tenant work performed or
alteration of space leased to Tenant or other tenants or occupants of the
Building, whether such work or alteration is performed for the initial occupancy
by such tenant or occupant or thereafter; (d) any cash or other consideration
paid by Landlord on account of, with respect to or in lieu of the tenant work or
alterations described in clause (c) above; (e) repairs, replacements, or
improvements made prior to the Commencement Date; (f) repairs arising from
defects in the initial construction of the Building within the Warranty Period
(hereinafter defined); (g) repairs necessitated by the negligence of Landlord or
required to cure violations of laws in effect on the Commencement Date; (h)
costs of enforcement of leases; (i) interest and amortization of indebtedness or
any costs of financing or refinancing, depreciation or ground rent; (j)
management fees in excess of the amount permitted under subsection 4.3.1(e); (k)
compensation paid to general partners, officers or executives of Landlord (other
than the management fee referred to in subsection 4.3.1(e)); (1) leasing
commissions and advertising (other than advertising for building employees) and
promotional expenses; (m) legal fees, accounting fees (other than legal and
accounting fees
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referred to in subsections 4.3.1(h) and 4.3.1(i)); (n) taxes, other than as
described in subsection 4.3.1(a); (o) the cost of electricity provided to any
areas of the Building occupied or to be occupied by tenants (that is all
portions of the Building other than common areas); (p) the cost of performing
additional services (icluding operation of the Building beyond the days and
hours specified in Section 8.1.1 and beyond start-up time related thereto) or
installations to or for tenants to the extent that such service exceeds that
provided by Landlord to Tenant without charge hereunder; (q) "takeover expenses"
(I.E., expenses incurred by Landlord with respect to space located in another
building of any kind or nature in connection with the leasing of space in the
Building); (r) any amounts payable by Landlord by way of indemnity, or for
damages or which constitute a fine, interest or penalty; (s) any improvement
installed or work performed or any other cost or expense incurred by Landlord in
order to comply with the requirements for obtaining any permanent or temporary
certificate of occupancy for the Building or any space therein or the renewal of
any temporary certificate of occupancy; (t) any cost representing an amount paid
for services or materials to a person, firm or entity related to Landlord or any
general partner of Landlord to the extent such amount exceeds the amount that
would be paid for such services or materials at the then-existing market rates
to an unrelated person, firm or corporation; and (u) costs attributable to the
ownership, operation or maintenance of the Building parking garage and any
residential space, other than real estate taxes related to the parking garage.
4.3.3. Landlord shall, at Landlord's cost and expense, install and
maintain check meters (not to exceed two for all space leased by Tenant,
including Expansion Space) to measure Tenant's electrical consumption in the
Premises. Tenant shall pay to Landlord monthly, as Additional Rent, the product
("Tenant's Electrical Consumption Costs") of Tenant's electrical consumption (as
measured by such meters) for the preceding month of the Term multiplied by the
Rate (hereinafter defined). Within a reasonable time after the end of each
calendar month during the Term, Landlord shall deliver to Tenant a statement
(the "Electrical Consumption Costs Statement") setting forth Tenant's Electrical
Consumption Costs for such month, which Electrical Consumption Costs Statement
shall be accompanied by copies of the bills for the electrical consumption in
the Premises received by Landlord from the public utility providing electricity
to the Building. Within fifteen (15) days after Tenant's receipt of the
Electrical Consumption Costs Statement, Tenant shall pay Tenant's Electrical
Consumption Costs. For purposes hereof, "Rate" means the actual cost incurred
by Landlord for electrical service to the Building in any period per kilowatt
hour (or other measuring method adopted by the applicable public utility
company).
4.3.4. Included in the Base Rent is (i) an amount equal to the
product obtained by multiplying Four Dollar and Ten Cents ($4.10) (the
"Operating Costs Factor") by the Rentable Area of the Premises, representing
Landlord's estimate of the cost to Landlord for the first Lease Year for
providing to or for the benefit of the Premises all of the services or other
items whose costs are included in Annual Operating Costs, and (ii) an amount
equal to the product obtained by multiplying One Dollar and Sixty Five Cents
($1.65) (the "Electrical Consumption Factor") by the Rentable Area of the
Premises, representing Landlord's estimate of the cost of providing electricity
to the Premises for the first Lease Year (which cost is to be paid by Tenant
pursuant to the provisions of subsection 4.3.3 hereof). Since Landlord shall
not be paying the Electrical Consumption Factor by reason of the provisions
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of section 4.3.3, Tenant shall be entitled to a credit against each monthly
installment of Base Rent throughout the Term in an amount equal to the quotient
obtained by dividing by twelve (12) the product of the Electrical Consumption
Factor multiplied by the Rentable Area of the Premises.
4.3.5. After the end of each calendar year during the Term,
Landlord shall compute the total of the Annual Operating Costs incurred during
such calendar year, and shall allocate such costs to the Rentable Area of the
Building by dividing such Annual Operating Costs by the Rentable Area of the
Building, thereby deriving the cost of such categories of services and items per
square foot of such Rentable Area; provided, that anything contained in the
foregoing provisions of this Section 4.3 to the contrary notwithstanding, if
during all or part of any calendar year of the Term, Landlord shall not furnish
any particular item of work or service (which would constitute an item of Annual
Operating Costs hereunder) to one hundred percent (100%) of the Rentable Area of
the Building because (i) less than all of the Building is occupied, or (ii) any
tenant is itself obtaining and providing such item of work or service, then an
adjustment shall be made in computing the Annual Operating Costs for such
calendar year so that the Annual Operating Costs shall be increased for that
calendar year to the amount that would have been reasonably incurred had
Landlord provided such item of work or service to one hundred percent (100%) of
the Rentable Area of the Building for the entire calendar year. Within the
first ninety (90) days after the end of each calendar year during the Term
(beginning with the first calendar year following the calendar year in which the
Commencement Date occurs), or as soon thereafter as reasonably practical,
Landlord shall furnish to Tenant a detailed statement (the "Operating Costs
Statement") of the actual Annual Operating Costs for the previous calendar year
certified to be true and accurate by Landlord to its knowledge and belief and
accompanied by a statement from an independence accounting firm that such firm
has reviewed such Operating Costs Statement and is not aware of any inaccuracies
therein.
4.3.6. Tenant shall, within thirty (30) days after delivery of the
Operating Costs Statement, pay to Landlord as Additional Rent the amount
("Tenant's Operating Costs Amount") obtained by multiplying (a) the Rentable
Area of the Premises by (b) the amount by which (i) the Annual Operating Costs
per square foot of the Rentable Area of the Premises for such calendar year (as
derived under the provisions of subsection 4.3.5) exceeds (ii) the Operating
Costs Factor.
4.3.7. If only part of any calendar year falls within the term,
Tenant's Operating Costs Amount shall be prorated in proportion to the portion
of such calendar year falling within the Term (but the expiration of the Term
before the end of such calendar year shall not impair the Tenant's obligation
hereunder to pay such prorated portion of Tenant's Operating Costs Amount with
respect to that portion of such year falling within the Term, which shall be
paid on demand, as aforesaid). If the Rentable Area of the Premises or the
Rentable Area of the Building changes, Tenant's proportionate share of the
Annual Operating Costs shall be adjusted as of the effective date of any such
change and Tenant's obligation for payment of Tenant's Operating Costs Amount
for the calendar year in which such change occurs shall be based on the daily
weighted average of Tenant's aforesaid proportionate share during such calendar
year.
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4.3.8. Landlord may, at its discretion, furnish from time to time
during the Term, but in any event no more than once during a calendar year, a
reasonable estimate ("Tenant's Estimated Operating Costs Amount") of Tenants's
Operating Costs Amount with respect to any calendar year after the first (1st)
full calendar year of the Term; provided, however, that in no event shall the
estimate furnished by Landlord exceed one hundred ten percent (110%) of Tenant's
Operating Costs Amount for the immediately preceding calendar year. Landlord
may require Tenant to pay to Landlord with respect to each calendar month during
such year, after the month in which Landlord furnishes Tenant's Estimated
Operating Costs Amount, one-twelfth (1/12th) of such Tenant's Estimated
Operating Cost Amount, at the time and in the manner that Tenant is required
hereunder to pay the monthly installment of Base Rent for such month, and Tenant
shall also pay to Landlord, within fifteenth (15) days after receipt of
Landlord's estimate, any deficiency between the monthly payments of Tenant's
Operating Costs Amount for the current calendar year previously paid by Tenant
and the amounts payable by Tenant based upon such estimate. If Tenant's
Operating Costs Amount as determined in accordance with the provisions of
subsection 4.3.6 for any calendar year is less than the aggregate monthly
payments made by Tenant hereunder during such calendar year based upon Tenant's
Estimated Operating Costs Amount for such calendar year, Landlord shall refund
promptly any excess to Tenant after delivery of the Operating Costs Statement,
together with interest on such excess payment as if such excess accrued in equal
installments each month during such calendar year at a rate of two percent (2%)
above the prime rate charged by Citibank, New York City, with such interest
computed from the respective dates of payment by Tenant of the monthly payments
of Tenant's Estimated Operating Costs Amount for such calendar year to the date
on which such interest is paid by Landlord to Tenant.
4.3.9. Within one year after delivery of an Operating Costs
Statement, Tenant shall notify Landlord if it intends to examine Landlord's
books and records with respect to such Operating Costs Statement. If Tenant so
notifies Landlord then Tenant and its representatives shall have the right, at
Tenant's expense, during normal business hours, to examine Landlord's books and
records relating to the Building for the three (3) most recent calendar years
and to make copies thereof. If as a result of such examination, Tenant disputes
such Operating Costs Statement, Tenant shall notify Landlord that it disputes
such Operating Costs Statement setting forth the reasons therefor (a "Notice of
Dispute"). If Landlord and Tenant do not agree on the proper amount for
Tenant's Operating Costs Amount within thirty (30) days after Tenant's Notice of
Dispute to Landlord, either party may refer the dispute to arbitration in
accordance with the provisions of Article 21 hereof. If Landlord shall have
overstated Tenant's Operating Costs Amount for any calendar year, Landlord shall
promptly refund such excess to Tenant, together with interest thereon at a rate
of two percent (2%) above the prime rate charged by Citibank, New York City,
computed from the date such Tenant Operating Costs Amount excess was paid by
Tenant to the date of refund of such excess to Tenant. If Tenant's Operating
Costs Amount shall have been overstated by more than three percent (3%),
Landlord shall reimburse Tenant for the cost of such examination.
4.3.10. In the event that after the expiration of one year after the
Commencement Date Landlord installs any energy saving capital improvement (the
"Energy
11
Saving Capital Improvement") that is designed to reduce Operating Costs, there
shall be included in Operating Costs for each calendar year after the
installation of such Energy Saving Capital Improvement an amount equal to the
lesser of (a) the annual amortized cost of such Energy Saving Capital
Improvement amortized over the useful life of such Energy Saving Capital
Improvement or (b) the annual reduction in Operating Costs resulting from the
installation of such Energy Saving Capital Improvement.
4.3.11. Notwithstanding any other provision of this Lease, the Base
Rent payable for the first four (4) full months of the term of this Lease is
hereby abated and payment thereof is waived by Landlord.
SECTION 4.4.
4.4.1. If the Real Estate Taxes (hereinafter defined) for any tax
year increase by more than seven and one-half percent (7-1/2%) above the Real
Estate Taxes payable during the immediately preceding tax year, Landlord shall,
upon timely written request from Tenant, within the time prescribed by law for
such purpose, take and diligently pursue any such action appropriate to contest
the amount of Real Estate Taxes. "Real Estate Taxes" for any tax year shall
mean all taxes and assessments, general and special, ordinary and extraordinary,
foreseen or unforeseen, including sanitary commission charges, including front
foot benefit charges, and assessments for public improvements or betterments,
assessed, levied, or imposed and due and payable during such tax year, with
respect to the Building and the Land. Landlord shall send promptly to Tenant
copies of all real estate tax assessments and real estate tax bills received by
Landlord during the term of this Lease.
4.4.2. In the event that at any time the Building and the Land are
not assessed separately for real estate tax purposes from any other real
property (the "Additional Real Property"), then Landlord shall pay (or cause to
be paid ) the real estate taxes and assessments attributable to the Additional
Real Property (which shall not be included in Operating Costs ) and for purposes
of this Lease, Real Estate Taxes shall include only such portion of such real
estate taxes and assessments that are attributable to the Land and Building.
For purposes hereof, the amount of any such real estate taxes and assessments
attributable to the Additional Real Property shall be based upon the allocation
thereof made by the applicable taxing authority. In the event that any real
estate taxes or assessments are assessed upon the Additional Real Property and
the Land and Building as an entirety without any allocation thereof between the
Additional Real Property, on the one hand, and the Land and Building, on the
other hand, such real estate taxes and assessments shall be allocated between
the Additional Real Property and the Land and Building in proportion to their
respective fair market values as of the valuation dates of the assessments.
4.4.3. Notwithstanding anything in Section 4.3 to the contrary, if
any Real Estate Taxes paid by Landlord and previously included in Annual
Operating Costs are refunded, Landlord shall promptly pay to Tenant Tenant's
proportionate share of such refund (less the reasonable expenses incurred by
Landlord in obtaining such refund to the extent not otherwise included in Annual
Operating Costs) based upon the proportion that the Real Estate Taxes paid by
Tenant as part of Tenant's Operating Costs Amount for the period to which
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such refund relates bears to the total amount of Real Estate Taxes included in
Annual Operating Costs during the calendar year to which such refund relates.
Section 4.5. If during the Term any governmental authority shall
impose a sales, ▇▇▇ or other excise tax on the rentals payable by Tenant
hereunder, Tenant shall pay such tax (or reimburse Landlord for any such tax
paid by Landlord) as Additional Rent within thirty (30) days after written
request therefor by Landlord to Tenant.
SECTION 4.6. Each installment of Rent shall be paid in advance
without deduction, demand, or set off except as otherwise provided in this
Lease, on the first (1st) day of each calendar month during the Term; provided,
that if the Commencement Date is not the first day of a calendar month, the
installment of Rent payable with respect to the period beginning on the
Commencement Date and ending on the last day of the calendar month in which the
Commencement Date occurs shall be appropriately prorated on a daily basis and
shall be payable on the Commencement Date.
SECTION 4.7. All Rent and other charges due from Tenant to Landlord
hereunder shall be paid to Landlord at Suite 1135, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇, or to any other party or at any other address which
Landlord may specify to Tenant by written notice.
ARTICLE 5. ASSIGNMENT AND SUBLETTING
SECTION 5.1. Tenant shall, at all times during the Term hereof, have
the unrestricted right to assign or transfer this Lease or sublet any portion or
all of the Premises, provided, however, that (a) no more than fifty percent
(50%) of the Rentable Area of the Premises may be sublet or the subject of any
assignment or transfer during the first three (3) years of the Term, and (b) no
such action shall in any way relieve or release Tenant from liability for the
timely performance of all of Tenant's obligations hereunder, and (c) Tenant
shall not assign or transfer this Lease or sublet all or any portion of the
Premises to any governmental agency, medical clinic, employment agency or school
that will use any part of the Premises for classroom purposes without obtaining
Landlord's prior written consent, which may be withheld in Landlord's sole
discretion.
SECTION 5.2. Anything contained in the foregoing provisions of this
Section to the contrary notwithstanding, neither Tenant nor any other person
having an interest in the possession, use, occupancy or utilization of the
Premises or any other portion of the Property shall enter into any sublease,
license, concession or other agreement for the use, occupancy or utilization of
space in the Premises or any other portion of the Property which provides for
any rental or other payment for such use, occupancy or utilization based in
whole or in part upon the net income or profits derived by any person from the
space in the Premises or other portion of the Property so subleased, used,
occupied or utilized (other than any amount based on a fixed percentage or
percentages of receipts or sales).
SECTION 5.3. In the event that any assignment or sublease is executed
by Tenant, Tenant shall deliver a copy thereof to Landlord. No such assignment
or sublease
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shall contain any provision that would result in Tenant being in noncompliance
with any of the provisions of this Lease.
ARTICLE 6. CONSTRUCTION OF BUILDING AND PREMISES
SECTION 6.1. Landlord shall continuously and diligently prosecute to
completion in a good and workmanlike manner in accordance with all laws, orders,
ordinances, and regulations of federal, state, county, municipal and other
authorities (collectively, "Legal Requirements") having jurisdiction over the
Premises the following: (a) the Leasehold Improvements to the Premises required
by Exhibit B; (b) the work described in Section 2.2; and (c) the Building, in
accordance with the plans and specifications described in Exhibit D attached
hereto and other plans and specifications subsequently submitted to and approved
by Tenant (the "Plans and Specifications").
SECTION 6.2. Landlord shall permit Tenant and its contractors,
mechanics and workmen to enter the Premises, as provided in Section 2.2.1(k),
prior to the Commencement Date in order that Tenant may perform any work,
alterations or installations which are not being performed by Landlord hereunder
("Tenant's Finish Work"), notwithstanding that Landlord's contractors or
subcontractors are working in the Premises. The scheduling and coordination of
Tenant's contractors and their workmen and mechanics will be subject to
regulation by Landlord or Landlord's Contractor (as defined in Exhibit B) to
avoid interferences with labor employed by Landlord, Landlord's Contractor or
their mechanics or subcontractors and their workmen or mechanics. The foregoing
license to enter prior to the Commencement Date, however, is conditioned upon
Tenant's workmen and mechanics working in harmony and not interfering with the
labor employed by Landlord, Landlord's mechanics or contractors or by any other
tenant or its contractors, and providing to Landlord evidence of comprehensive
general liability insurance in amounts required by Section 12.2 naming Landlord
as an additional insured and worker's compensation insurance. Any such entry
before the Commencement Date shall be subject to all terms of this Lease, except
the covenant to pay Rent; provided, that no such early entry shall be deemed to
constitute occupancy by Tenant or change the Commencement Date or the Expiration
Date, and Tenant shall indemnify and hold harmless Landlord from any damage to
the Property or any persons caused by Tenant or Tenant's contractors during such
period of early entry in the event and to the extent any such damage is not
covered by and insurance carried by Landlord.
SECTION 6.3. The terms of Exhibit B hereto shall govern the
construction and installation of all Leasehold Improvements.
SECTION 6.4. In the event that (i) Landlord fails to apply for an
excavation permit by February 1, 1985 (as evidenced by a copy of such
application delivered to Tenant on or before such date); (ii) Landlord fails to
commence excavation and sheeting and shoring (collectively, "Groundbreaking") by
April 1, 1985; (iii) Landlord fails to have completed construction work by July
1, 1985 having a direct construction cost of at least $600,000; (iv) "topping
out" of the Building does not occur by April 1, 1986; or (v) the Completion Date
does not occur by August 1, 1986 (the "Outside Completion Date"), Tenant may
elect to terminate this Lease by sending Landlord written notice of termination
prior to the expiration
14
of thirty (30) days after the occurrence of the applicable date, and if Tenant
fails to give such termination notice within such thirty (30) day period, this
Lease shall continue in full force and effect and Tenant shall be entitled to
exercise its termination rights (if any) under this Section 6.4 in the event of
any subsequent failure of Landlord to comply with the schedule set forth in this
Section 6.4. Notwithstanding the foregoing, in the event that the Completion
Date has not occurred by August 1, 1986 but on or before August 1, 1986 the
Building shall have been substantially completed except for the Leasehold
Improvements and other tenant work and Landlord shall have delivered to Tenant
the sixty (60) day notice referred to in Section 2.2.1(k), the Outside
Completion Date shall be extended to September 1, 1986. In the event this Lease
is terminated as herein set forth, neither party shall be liable to the other
for the performance of any obligations hereunder, nor shall either party be
liable to the other for any losses or damage incurred or sustained by the other
as a result of such failure; provided, however that Landlord shall reimburse
Tenant for the expenses incurred by Tenant for space planning work for the
Premises and expenses for Leasehold Improvement Work performed by Landlord's
Contractor or for or i connection with termination expenses in respect of
cancellation of orders for any of such items or services for Leasehold
Improvement Work performed by Landlord's Contractor aggregating Ten Thousand
Dollars ($10,000) and, in addition, Landlord shall pay Tenant as fixed, agreed
and liquidated damages, the sum of Fifty Thousand Dollars ($50,000) in the event
that Tenant terminates this Lease pursuant to clause (i), (ii) or (iii) of this
Section 6.4, and the sum of One Hundred Thousand Dollars ($100,000) if Tenant
terminates this Lease pursuant to clause (iv) or (v) of this Section 6.4,
payable within thirty (30) days after the date of termination. Tenant's rights
under this Section 6.4 shall be in addition to and not in limitation of any
rights granted Tenant under Articles 23 and 25 hereof.
ARTICLE 7. FIRE AND OTHER CASUALTY
SECTION 7.1.
7.1.1. If the Premises and/or the Building are damaged by fire or any
other casualty during the Term, Landlord shall restore the Premises and/or the
Building with reasonable promptness (taking into account the time required by
Landlord to effect a settlement with, and to procure any insurance proceeds
from, any insurer against such casualty and any delays caused by acts of God,
strikes, and similar causes beyond Landlord's reasonable control), to
substantially their condition immediately before such casualty, including any
work required pursuant to the provisions to Section 2.2 hereof, and may
temporarily enter and possess any or all of the Premises for such purpose
(provided, that Landlord shall not be obligated to repair, restore or replace
any fixture, improvement, alteration, furniture or other property owned,
installed or made by Tenant). Landlord shall diligently commence and
continuously prosecute such restoration to completion, provided, however, that
if such restoration is not accomplished within one hundred eighty (180) days
from the date of such casualty, plus an additional period of time, not to exceed
sixty (60) days, for any delays caused by acts of God, strikes and similar
causes beyond Landlord's control, Tenant may terminate this Lease by giving
written notice thereof to Landlord prior to the expiration of two hundred
seventy (270) days after the date of such casualty.
15
7.1.2. In the event that any or all of the Premises are rendered
unsuitable for occupancy by Tenant on account of any casualty, the Base Rent and
any Additional Rent payable under the provisions of Article 4 shall be abated in
proportion to the number of square feet of the Premises rendered unsuitable for
unsuitable for occupancy by Tenant by such casualty, unless, because of any such
damage, the undamaged portion of the Premises is made unsuitable for the conduct
of the business operations then conducted on the Premises and Tenant ceases
conducting its business operations therein, in which event the Base Rent and any
such Additional Rent shall be abated entirely during such period of
unsuitability.
SECTION 7.2. Anything contained in the foregoing provisions of this
Article to the contrary notwithstanding, if during the Term the Building and/or
the Premises are so damaged by fire or any other casualty that the Premises is
rendered unsuitable for the conduct of the business operations then conducted on
the Premises and if the Building and/or the Premises cannot be restored as
required hereunder within one hundred eighty (180) days, either party may elect
to terminate this Lease as of the date of occurrence of such damage, by giving
written notice thereof to the other party hereto within sixty (60) days after
the date of such casualty; provided, however, that Landlord may exercise such
option to terminate this Lease only if Landlord decides to demolish the Building
and Landlord terminates all leases in the Building. In such event, (a) Tenant
shall pay to Landlord the Base Rent and any Additional Rent (apportioned, where
applicable) to the time of such termination, and (b) Landlord shall pay to
Tenant any and all prepaid Rent for periods beyond such termination.
ARTICLE 8. MAINTENANCE AND SERVICES
SECTION 8.1.
8.1.1. Landlord shall furnish the Premises with (a) electricity seven
(7) days per week, twenty four (24) hours per day, (b) heating and air
conditioning for the comfortable use and occupancy of the Premises between 7:00
o'clock A.M. and 7:00 o'clock P.M., Monday through Friday, and 8:00 o'clock A.M.
and 1:00 o'clock P.M. on Saturday [except for the legal holidays ("Holidays")
set forth in Exhibit E] of each week during the Term, (c) janitorial service in
accordance with Exhibit F attached hereto, (d) trash removal from the Premises,
(e) passenger elevator service in common with other tenants for access to and
from the Premises (consisting of the number of elevators shown on the Plans and
Specifications); provided, however, that Landlord may reasonably limit the
number of elevators to be operated at night after normal business hours on
Saturdays, Sundays and Holidays, (f) potable water at those points of supply
provided for normal use by tenants in the Building, (g) replacement, as
necessary, of all lamps and ballasts in Building Standard light fixtures, and
(h) electric lighting for common and public areas and special service areas of
the Building, all at Landlord's expense. If Tenant requires air conditioning or
heating outside the hours and days specified above, Landlord shall furnish it
upon prior oral or written notice from Tenant given prior to noon the day such
additional services are requested if such day is not a Saturday, Sunday or
Holiday (or prior to noon of the first weekday preceding such Saturday, Sunday
or Holiday) (provided, however, that Landlord shall use its best efforts to
furnish heating or air conditioning if Tenant requests such service after such
time), and Tenant will pay for such services an amount equal to Landlord's
actual cost of
16
providing such services, multiplied by the quotient of (i) the Rentable Area of
the Premises to which such services are supplied, divided by (ii) the Rentable
Area to which such services are supplied (including the Premises) of all tenants
requesting such srvices during the time for which Tenant requests such services.
8.1.2. Prior to the Commencement Date, risers, feeders and all
other necessary equipment and facilities will be installed in the Building by
Landlord to furnish electrical services in accordance with the Plans and
Specifications. At all times Tenant agrees that its use of electric current
will never exceed the level which Landlord reasonably determines (and advises
Tenant) to be the capacity of existing feeders to the Building or the risers or
wiring installations. Landlord warrants that said capacity shall not be less
than that set forth in the Plans and Specifications. Any riser or risers or
wiring to meet Tenant's excess electrical requirements will, upon Tenant's
written request, be installed by Landlord at Tenant's sole cost (if the same
will not cause permanent damage or injury to the Building or to the Premises or
cause or create a dangerous or hazardous condition or prevent Landlord from
providing adequate service to other tenants of the Building).
8.1.3 Should any malfunction of the Building improvements or
facilities or any interruption in any of the foregoing services occur, Landlord
shall not have any liability to Tenant by reason of any such malfunctioning or
interruption in services, but Landlord shall promptly and with due diligence
repair such malfunction and/or effect the restoration of such services and shall
give Tenant reasonable notice, where practicable, of the commencement or
stoppage of any of Landlord's services. If there is an interruption,
curtailment or suspension of Landlord's services or a malfunction of Building
improvements or facilities and any such services shall be discontinued for a
period longer than twenty (20) consecutive days, the Rent payable hereunder for
any portion of the Premises not receiving such service shall be abated until the
date on which such service is resumed.
SECTION 8.2.
8.2.1 Except for any work Landlord is obligated to perform under
this Lease, Tenant shall maintain the non-structural parts of the interior of
the Premises in good repair and condition, except for damage by causes
reasonably beyond Tenant's control (other than to the extent such damage is
covered by Tenant's insurance) and ordinary wear and tear. Tenant shall
maintain the areas of the Premises that are visible from the common areas or the
exterior of the Building in presentable condition.
8.2.2. Tenant shall have the right to make any alteration, addition
or improvement (collectively referred to as "Alterations") in or to the Premises
which Tenant deems appropriate, provided, however, that Landlord's prior written
consent shall be required for any such Alterations which will affect the
structure of the Building or the exterior appearance of the Building or which
will adversely affect the functioning of its electrical or HVAC systems. Any
Alterations made or installed by Tenant hereunder shall be made at Tenant's sole
expense (and Tenant shall hold Landlord harmless from any cost incurred on
account thereof). Tenant shall send to Landlord, prior to commencing any
Alterations, copies of all plans and specifications for any Alterations whether
or not
17
Landlord's approval therefor is required hereunder. In the event that Tenant
requests Landlord's approval of any Alterations and Landlord fails to disapprove
the proposed Alterations and advise Tenant of Landlord's reasons for such
disapproval within thirty (30) days after Landlord receives the plans and
specifications for such Alterations, such Alterations shall be deemed approved
by Landlord.
SECTION 8.3.
8.3.1. Landlord shall operate the Building as a first-class office
building in the metropolitan Washington, D.C. area. Landlord at its cost and
expense, shall keep and maintain the Building, and its fixtures, appurtenances,
systems and facilities (including the Building parking garage), and the
sidewalks, plazas and landscaped areas located on the Property in good working
order, condition and repair and shall, subject to Article 7, make all repairs,
structural and otherwise, interior and exterior, ordinary or extraordinary, as
and when needed in or about the Property except those repairs for which Tenant
is responsible pursuant to the provisions of subsection 8.2.1 hereof.
8.3.2. Landlord, at its cost and expense, shall:
(i) keep the sidewalks, plazas and landscaped areas adjoining
the Building and any other horizontal structural surfaces adjoining or forming
any part of the Property (other than horizontal surfaces above the ground floor)
free of accumulation of snow and ice, dirt, refuse, rubbish and unlawful
obstructions;
(ii) keep the lobbies and the common and public areas of the
Building clean and presentable;
(iii) care for and maintain the shrubbery, planting and
landscaping, if any, on the plaza or plazas adjacent to the Building or other
public areas of the Property;
(iv) provide a Building security system comparable to other
first-class office buildings in the metropolitan Washington, D.C. area, provided
that upon commencement of the Term Landlord shall provide a card or key access
Building entry Kastle security system or its equivalent; and
(v) provide Tenant, its employees and invitees prompt access (in
a manner befitting a first-class office building in the metropolitan Washington,
D.C. area) into the Building (through the lobby), the Premises and the Building
parking garage 24 hours each day, 7 days per week. Notwithstanding the
foregoing, invitees shall not have access to the parking garage during hours
when valet parking is not available except through the use of garage access
cards or keys made available by Tenant.
8.3.3. Landlord, at its cost and expense,shall repair or replace
all materials, workmanship, fixtures or equipment incorporated by Landlord in
the Premises (whether as Leasehold Improvements or otherwise) which shall prove
to be defective during a period of twelve (12) months after the Commencement
Date (the "Warranty Period"). Landlord shall
18
assign to Tenant all warranties (if assignable) from subcontractors and material
suppliers for such materials, workmanship, fixtures or equipment in effect after
the expiration of the Warranty Period; provided, however, that if any such
warranties are not assignable, Landlord shall, at Tenant's request, use its best
efforts to enforce for the benefit of Tenant, at Tenant's expense, such
non-assignable warranties. In performing any warranty work pursuant to Section
8.3.3, Landlord and its contractors and subcontractors shall perform such work
in such manner and at such times as will cause as little inconvenience and
disruption to Tenant as is practicable under the circumstances, and in the event
that Tenant cannot reasonably occupy any portion of the Premises during the
period of such warranty work and Tenant's personnel cannot be temporarily
relocated from such non-occupiable portions to other portions of the Premises,
there shall be an abatement of the Rent on a proportionate basis during any such
period that Tenant is deprived of reasonable occupancy of any portion of the
Premises. Tenant shall notify Landlord within ten (10) days after space becomes
non-occupiable as aforesaid that Tenant intends to ▇▇▇▇▇ the Rent by reason
thereof, and if Tenant fails to notify Landlord within such ten (10) day period,
such claim for abatement of Rent shall be waived.
ARTICLE 9. DEFAULTS BY TENANT
SECTION 9.1. As used in the provisions of this Lease, each of the
following events shall constitute, and is hereinafter referred to as, as "Event
of Default":
9.1.1. If Tenant fails to pay the Rent or any other sum which Tenant
is obligated to pay by any provision of this Lease, when and as it is due and
payable hereunder and without demand therefor; or
9.1.2. If Tenant violates any of the terms, conditions or covenants
set forth in the provisions of this Lease; or
9.1.3. If in a Liquidation Bankruptcy Proceeding (hereafter
defined), (a) Tenant applies for or consents to the appointment of a trustee
or files a voluntary petition in bankruptcy, or files an answer admitting all
the material allegations of a petition filed against the Tenant, or (b) an
order, judgment or decree is entered by the court adjudicating the Tenant a
bankrupt or an insolvent, or appointing a trustee, or an involuntary petition
for relief is filed against Tenant, and if such order, judgment, decree or
petition continues unstayed for more than ninety (90) consecutive days after
the expiration of any stay thereof and prior to the expiration of such ninety
(90) day period the case is not converted to a proceeding under a chapter
other than Chapter 7 of the Bankruptcy Code (11 U.S.C. Sections 101-151326).
For purposes hereof, a Liquidation Bankruptcy Proceeding shall mean a
proceeding pursuant to which a petition for relief under Chapter 7 of the
Bankruptcy Code has been filed and not converted to a proceeding under a
chapter other than Chapter 7 of the Bankruptcy Code.
SECTION 9.2. Anything contained in the provisions of this Article to
the contrary notwithstanding, upon the occurrence of an Event of Default
Landlord shall not be entitled to exercise any right or remedy which it holds
under any provision of this Lease or
19
under applicable law unless and until Landlord has given written notice thereof
to Tenant, and Tenant has failed, (a) if such Event of Default consists of the
failure to pay money, within fifteen (15) days thereafter to pay all of such
money, or (b) if such Event of Default consists of something other than the
failure to pay money and can be cured by Tenant within thirty (30) days after
such written notice, within thirty (30) days thereafter, or if such non-monetary
Event of Default cannot be cured by Tenant within such thirty (30) day period,
to commence to cure such Event of Default within said thirty (30)- day period
and thereafter diligently prosecute the correction of same to completion.
SECTION 9.3. Upon the occurrence of any Event of Default and the
expiration of the grace period for curing such default set forth in Section 9.2
without such default having been cured, or in the case of an Event of Default
set forth in Section 9.1.3, Landlord may:
9.3.1. terminate this Lease on three (3) days notice to Tenant, in
which event Tenant shall immediately surrender the Premises to Landlord and it
Tenant fails to do so, Landlord may, without further notice, re-enter (forcibly
if necessary) and repossess the Premises and any and all improvements thereon
and additions thereto;
9.3.2. collect any unpaid Rent or other damages in any manner not
inconsistent with applicable law;
9.3.3. relet any or all of the Premises for Tenant's account for any
or all of the remainder of the Term as hereinabove defined, or for a period
exceeding such remainder, in which event Tenant shall pay to Landlord any
deficiency in the Base Rent and any Additional Rent resulting, with respect to
such remainder, from such reletting, as well as the reasonable costs to Landlord
or any attorneys' fees and court costs, leasing commissions or of any repairs or
other action (including those taken in exercising Landlord's rights under any
provision of this Lease) taken by Landlord on account of such Event of Default;
and/or
9.3.4. pursue any combination of such remedies and/or any other
remedy available to the Landlord on account of such Event of Default under
applicable law, provided that Landlord shall in any event (whether Section
9.3.2, Section 9.3.3 or this Section 9.3.4 applies) use reasonable efforts to
relet the Premises for Tenant's account.
SECTION 9.4. Upon the occurrence of an Event of Default, Landlord
shall be entitled (but shall not be obligated), in addition to any other rights
which it may have hereunder or under applicable law as a result thereof, and
after giving Tenant written notice of Landlord's intention to do except in the
case of emergency, to cure such Event of Default, and Tenant shall reimburse
Landlord for all expenses incurred by Landlord in doing so, plus interest
thereon at a rate which is the lesser of the prime rate charged by Citibank, New
York City, plus two percent (2%) per annum, or the highest rate then permitted
on account thereof by applicable law, which expenses and interest shall be
Additional Rent and shall be payable by Tenant immediately upon demand therefor
by Landlord.
20
SECTION 9.5. In the event of any default in the payment of any Base
Rent or Additional Rent payable by Tenant to Landlord hereunder which continues
uncured for a period of ten (10) days after written notice thereof to Tenant,
Landlord shall be entitled to collect from Tenant, as additional rent, a late
payment penalty in an amount equal to that percentage of the amount so in
default that is equal to the lesser of (a) three and one half percent (3.5%) or
(b) seventy percent (70%) of the amount of the late payment penalty percentage
rate payable by Landlord pursuant to the provisions of the first deed of trust
on the Building at the time of such default in the event of any delinquency in
the payment of amounts owed under such first deed of trust.
SECTION 9.6. Each party hereto hereby waives its right of trial by
jury in any legal proceeding brought in respect of this Lease.
ARTICLE 10. HOLDING OVER
SECTION 10.1. Tenant shall not continue to occupy the Premises after
the expiration or earlier termination of the Term or any renewal thereof, unless
Landlord consents in writing to such continuation of occupancy, in which event
such occupancy shall (unless the parties hereto otherwise agree in writing) be
deemed to be under a month-to-month tenancy, which shall continue until either
party hereto notifies the other in writing, by at least thirty (30) days before
the end of any calendar month, that the party giving such notice elects to
terminate such tenancy at the end of such calendar month, in which event such
tenancy shall so terminate. The rental payable with respect to each monthly
period of such month-to-month tenancy shall equal one-twelfth (1/12th) of the
Base Rent and the Additional Rent payable under the provisions of Article 4
(calculated in accordance with such provisions of Article 4 as if this Lease had
been renewed for a period of twelve (12) full calendar months after such
expiration or earlier termination of the Term or such renewal). Except as
expressly provided otherwise, such month-to-month tenancy shall be upon the same
terms and subject to the same conditions as those set forth in the provisions of
this Lease.
SECTION 10.2. In the event Tenant holds over without Landlord's
written consent obtained prior to the expiration or earlier termination of the
Term, Tenant, during the period of its possession, shall pay to Landlord on a
monthly basis Rent equal to one-twelfth of twice the amount of Base Rent and
Additional Rent paid to Landlord under the provisions of Article 4 during the
Lease Year immediately preceding the expiration or earlier termination of the
Term, and Landlord shall have the right to enter (forcibly if necessary) the
Premises and to remove Tenant and its property from the Premises, including
storage of Tenant's property, all at Tenants's cost and expense, and Landlord
shall have no liability therefor except in the event of Landlord's gross
negligence or wilful misconduct.
ARTICLE 11. LANDLORD'S RIGHT OF ENTRY
SECTION 11.1. Upon twenty-four (24) hours prior notice and during
normal business hours (except in cases of emergency) Landlord and its agents
shall be entitled to enter the Premises (a) to inspect the Premises, (b) to
exhibit the Premises to any existing or prospective tenant, purchaser or
mortgagee thereof or any prospective tenant thereof; (c) to
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make any alteration, improvement or repair to the Building or the Premises, or
(d) for any other purposes relating to the operation or maintenance of the
Property in connection with such entry. Landlord shall use reasonable efforts
to avoid interfering with the Tenant's use and enjoyment of the Premises and
(except in cases of emergency) Landlord and its agents shall be accompanied by a
representative of Tenant at all times. Notwithstanding the foregoing except in
the case of emergency threatening property or life, Landlord shall not be
entitled to enter any special security area located on the Premises and
designated as such by Tenant.
ARTICLE 12. INSURANCE AND INDEMNIFICATION
SECTION 12.1. Tenant shall not do or permit to be done any act or
thing as a result of which either (a) Landlord has advised Tenant that any
policy of insurance of any kind covering any or all of the Property may become
void, cancelled or suspended, or (b) Landlord has advised Tenant that the
insurance risk under any such policy would (in the opinion of the insurer
thereunder) be made greater, unless such activity by Tenant can be insured
against upon payment of an additional premium by Tenant and Tenant agrees to pay
such additional insurance premium within ten (10) days after receipt thereof by
Tenant, which amount shall be deemed additional rent. Landlord shall promptly
notify Tenant of receipt by Landlord of any statement by any insurer of Landlord
claiming that Tenant has violated the covenant contained in the preceding
sentence. In the event that Tenant fails to remedy the condition causing the
violation of such covenant within ten (10) days after receipt of notice thereof,
Tenant shall pay as Additional Rent the amount of any increase in any premium
for such insurance resulting from the breach of such covenant within ten (10)
days after being billed therefor by Landlord. In determining whether any
increase in any premium is a result of a breach by Tenant of the covenant set
forth in this Section 12.1, a schedule issued by the organization computing the
insurance rate on the Building or the Leasehold Improvements, showing the
various components of such rate, shall be prima facie evidence of the several
items and charges which make up such rate.
SECTION 12.2. Tenant shall maintain at its expense, throughout the
Term, insurance against loss or liability in connection with bodily injury,
death, property damage and destruction, occurring within the Premises or arising
out of the use thereof by Tenant or its agents, employees, officers or invitees,
visitors and guests under one or more policies of comprehensive general public
liability insurance in limits of not less than Five Million Dollars ($5,000,000)
inclusive. Such policies shall name Landlord and Tenant (and, at Landlord's
request, any mortgagee) as the insured parties, all as their respective
interests may appear, and shall provide that they shall not be cancellable
without at least thirty (30) days' prior written notice to Landlord (and, at
Landlord's request, any such mortgagee). Tenant will deliver certificates of
insurance to Landlord as soon as reasonably practicable after the placing of the
required insurance but not later than ten (10) days prior to the Commencement
Date. The insurance policies required hereunder shall be issued by insurers of
recognized responsibility licensed to do business in Maryland. Such insurance
may be placed as part of any blanket policy carried by Tenant and/or carried
under primary and excess coverage policies.
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SECTION 12.3.
12.3.1. During the Term Landlord shall insure the personal property
and the Leasehold Improvements (excluding the personal property of Tenant and
any Alterations) against damage with All-Risk insurance in an amount not less
than one hundred percent (100%) of the then replacement cost to the extent
obtainable, and comprehensive general liability insurance in limits not less
than Five Million Dollars ($5,000,000) inclusive. Landlord's policies of
comprehensive general liability insurance shall name Tenant as an additional
insured. The insurance policies required hereunder shall be issued by insurers
of recognized responsibility licensed to do business in Maryland and shall
provide that they shall not be cancellable without at least thirty (30) days'
prior written notice to Tenant.
12.3.2. Landlord will deliver certificates of insurance to Tenant as
soon as reasonably practicable after the placing of the required insurance but
not later than ten (10) days prior to the Commencement Date. On or before the
Commencement Date and every anniversary of the Commencement Date thereafter,
Landlord shall provide Tenant with evidence that Landlord has insured the
Building and the Leasehold Improvements against damage in an amount not less
than one hundred percent (100%) of the then replacement cost of the Building and
Leasehold Improvements, which evidence shall be a determination of the
replacement cost of the Building and Leasehold Improvements made by or for its
insurance carrier or other evidence thereof.
SECTION 12.4. All policies covering real or personal property which
either party obtains affecting the Premises or the Building shall include a
clause or endorsement denying the insurer any rights of subrogation against the
other party to the extent rights have been waived by the insured before the
occurrence of injury or loss. Landlord and Tenant waive any rights of
subrogation or recovery against the other for damage or loss to their respective
property due to hazards covered or which should be covered by policies of
insurance obtained or which should be or have been obtained pursuant to this
Lease, to the extent of the injury or loss covered or which should have been
covered thereby, assuming that any deductible shall be deemed to be insurance
coverage.
ARTICLE 13. EMINENT DOMAIN
SECTION 13.1. In the event that all or a substantial part of the
Building and/or the Premises are taken or condemned for any public purpose, this
Lease shall terminate as of the date of such taking. For purposes of this
Section 13.1, a substantial part of the Premises or the Building shall be deemed
to have been taken if (a) more than fifteen percent (15%) of the Rentable Area
of the Premises is rendered unusable by Tenant, provided Tenant does not send
Landlord written notice, within thirty (30) days after Tenant is notified of
such taking, of Tenant's election not to have this Lease terminate as provided
for hereunder, in which event the provisions of Section 13.2 shall govern; or
(b) all or substantially all of the Rentable Area of the Building is taken; or
(c) less than substantially all of the Rentable Area of the Building is rendered
unusable and such unusable portion of the Building results in the Premises being
not reasonably usable for the conduct of Tenant's business on the Premises.
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SECTION 13.2. In the event that a portion, but less than a
substantial part, of the Premises shall be taken or condemned for any public
purpose, then this Lease shall terminate as of the date of such taking as to the
portion of the Premises so taken, and this Lease shall remain in full force and
effect as to the remainder of the Premises. In such event, the Base Rent, and
Additional Rent attributable to the Premises, shall be diminished by an amount
representing the part of such amounts properly applicable to the portion of the
Premises so taken.
SECTION 13.3. In the event of the termination of this Lease pursuant
to the provisions of subsections 13.1 or 13.2, this Lease and the Term and the
estate hereby granted shall expire as of the date of such termination in the
same manner and with the same effect as if that were the date set for the normal
expiration of the Term, and Rent shall be apportioned as of the date of
termination. The provisions of this Section 13.3 shall apply in the same manner
to any partial termination of this Lease pursuant to the provisions of this
Article 13.
SECTION 13.4. Landlord shall be entitled to receive the entire award
in any condemnation proceeding or action for taking, without deduction therefrom
for any estate vested in Tenant by this Lease; provided that nothing herein
contained shall prohibit Tenant from seeking any separate award or benefits that
Tenant may be entitled to as long as such award or benefits do not in any manner
reduce the award payable to Landlord.
ARTICLE 14. MECHANICS' AND MATERIALMENS' LIENS
Tenant shall bond, remove or have removed any mechanics',
materialmens' or other lien filed or claimed against any or all of the Premises,
or against the Building where such lien or claim arises out of any purported act
or agreement of Tenant, by reason of labor or materials provided for or at the
request of Tenant or any of its contractors or subcontractors (other than labor
or materials provided by Landlord pursuant to the provisions of Article 6)
within twenty (20) days after Tenant receives notice of any such lien.
ARTICLE 15. QUIET ENJOYMENT - SURRENDER
SECTION 15.1. Landlord hereby covenants that Tenant, on paying the
Rent and performing the covenants set forth herein, shall peaceably and quietly
hold and enjoy, throughout the Term (a) the Premises, and (b) such rights as
Tenant may hold hereunder with respect to the remainder of the Property
(including, by way of example rather than of limitation, any such right to use
the Building parking garage).
SECTION 15.2.
15.2.1. Upon the expiration or earlier termination of the Term,
Tenant shall surrender the Premises to Landlord in good order and repair (damage
from fire or other casualty and ordinary wear and tear excepted), and broom
clean.
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15.2.2. Any and all improvements, repairs, alterations and all other
property attached to, used in connection with or otherwise installed upon the
Premises shall be surrendered to Landlord upon the expiration or earlier
termination of the Term, except that any machinery, equipment or fixtures
installed by Tenant and used in the conduct of Tenant's trade or business
(rather than to service the Premises or any of the remainder of the Building or
the Property generally) shall remain Tenant's property and shall be removed by
Tenant within five (5) days after the expiration or earlier termination of the
Term, and if such removal causes any damage to the Premises or the Building,
Tenant shall promptly thereafter fully repair such damage. If Tenant installs
within the Premises any interior stairs connecting floors within the Premises
and Landlord elects, within one year after the Expiration Date, to remove such
interior stairs because of the requirements of a new tenant, Tenant shall
reimburse Landlord for the reasonable costs incurred by Landlord in filling in
the concrete floor slab penetrated by such stairs.
ARTICLE 16. RULES AND REGULATIONS
Landlord hereby reserves the right to prescribe, at its sole
discretion, reasonable rules and regulations (the "Rules and Regulations")
having uniform applicability to all tenants of the Building and governing the
use and enjoyment of the Building and the remainder of the Property; provided,
that the Rules and Regulations shall not interfere or adversely affect Tenant's
use and enjoyment of the Premises in accordance with the provisions of this
Lease. Tenant, its agents and employees, shall adhere to the Rules and
Regulations and use its best efforts to cause its invitees, visitors and guests
to do so. A copy of the Rules and Regulations in effect on the date hereof is
attached hereto as Exhibit G.
ARTICLE 17. SUBORDINATION - ATTORNMENT
SECTION 17.1. Landlord warrants and represents that on and after the
date that Landlord acquires title to the Land, there shall be no holders of any
deeds of trust, mortgages or other security interests (collectively, the
"Superior Instruments") covering the Building and/or Land or any interest of
Landlord therein (collectively, the "Holders of Superior Instruments") unless
Landlord obtains and delivers to Tenant a non-disturbance agreement
substantially in the form of Exhibit H hereto executed by the Holder of such
Superior Instrument. Tenant agrees that it shall not unreasonably withhold its
consent to any modifications to the form of the non-disturbance agreement
attached hereto as Exhibit H that may be requested by the Holder of such
Superior Instrument.
SECTION 17.2. This Lease shall be subject and subordinate to any
future Superior Instruments which may from time to time during the Term cover
the Building and/or the Land, or any interest of Landlord therein, and to any
advances made on the security thereof, and to any refinancings, increases,
renewals, modifications, consolidations, replacements, and extensions of any of
such future Superior Instruments, provided that, as a condition of such
subordination being effective, the Holder of such Superior Instrument shall have
executed, acknowledged and delivered to Tenant a non-disturbance agreement
described in Section 17.1. Upon execution and delivery of such non-disturbance
agreement, this Section 17.2 shall be self-operative and no further instrument
shall be required to effect such
25
subordination of this Lease. Upon demand, however, Tenant shall execute,
acknowledge, and deliver to Landlord any further instruments and certificates
evidencing such subordination as Landlord, or such Holder of the Superior
Instrument may reasonably request.
SECTION 17.3. Subject to the provisions of Section 17.1, any Holder
of a Superior Instrument shall have the right, unilaterally, at any time to
subordinate fully or partially any such Superior Instrument to this Lease. Upon
request Tenant shall execute an instrument confirming any such subordination by
any Holder of a Superior Instrument. At any time, before or after the
institution of any proceedings for the foreclosure of any such Superior
Instrument, or sale of the Building under any such Superior Instrument, Tenant
shall attorn to such purchaser upon any such sale or the grantee under any deed
in lieu of such foreclosure and shall recognize such purchaser or grantee as
Landlord under this Lease. Tenant hereby waives the right, if any, to elect to
terminate this Lease or to surrender possession of the Premises in the event of
the judicial or non-judicial foreclosure of any deed of trust, mortgage, or
security agreement (or any transfer in lieu thereof). The foregoing agreement
of Tenant to attorn shall survive any such foreclosure sale, trustees' sale, or
conveyance in lieu thereof. Tenant shall upon demand at any time, before or
after any such foreclosure sale, trustee's sale, or conveyance in lieu thereof,
execute, acknowledge, and deliver to Landlord's mortgagee or any successor
thereof or any then owner of the Building (as the case may be), any written
instruments and certificates evidencing such attornment as such Holder of a
Superior Instrument may reasonably require.
ARTICLE 18. ESTOPPEL CERTIFICATE
SECTION 18.1. Tenant shall from time to time, within fifteen (15)
days after being requested to do so by Landlord or any Holder of a Superior
Instrument, execute, acknowledge and deliver to Landlord an instrument in
recordable form certifying that this Lease is unmodified and in full force and
effect (or, if there has been any modification thereof, that it is in full force
and effect as so modified, stating therein the nature of such modification); as
to the dates to which the Base Rent and any Additional Rent and other charges
arising hereunder have been paid in advance of the dates on which payment
thereof is due hereunder, if any; as to the amount of any unpaid Rent or any
credit due to Tenant hereunder; that Tenant has accepted possession of the
Premises, and the date on which the Term commenced (if such is true); as to
whether, to the best knowledge, information and belief of the signer of such
certificate, Landlord is then in default in the performance of any of its
obligations hereunder (and, if so, specifying the nature of each such default)
and as to any other fact or condition reasonably requested by Landlord, or any
Holder of such Superior Instrument (if such is true); and acknowledging and
agreeing that any statement contained in any such certificate may be relied upon
by Landlord and any such other person.
SECTION 18.2. Landlord agrees to furnish, within fifteen (15) days
after being requested to do so by Tenant, an instrument in recordable form
executed by Landlord containing substantially the same information as described
in Section 18.1 above.
ARTICLE 19. NOTICES
26
SECTION 19.1. Any notice or demand, consent, approval or disapproval,
or statement (collectively, "Notices") required or permitted to be given by the
terms and provisions of this Lease, or by any law or governmental regulation,
shall be in writing (unless otherwise specified herein) and unless otherwise
required by such law or regulation, shall be personally delivered or sent by
United States mail postage prepaid as registered or certified mail, return
receipt requested. Any Notice shall be addressed to Landlord or Tenant, as
applicable, at its address specified below as said address may be changed from
time to time as hereinafter provided. By giving the other party at least ten
(10) days prior written notice, either party may, by Notice given as above
provided, designate a different address or addresses for Notice.
LANDLORD: TENANT:
Suite 1135 Until Tenant occupies
Chevy Chase Building the Premises:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Chevy Chase, MD 20815
After Tenant
occupies the
Premises:
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
SECTION 19.2. Any Notice shall be deemed given as of the date of
delivery as indicated by affidavit in case of personal delivery or by the return
receipt in the case of mailing; and in the event of failure to deliver by reason
of changed address of which no Notice was given or refusal to accept delivery,
as of the date of such failure as indicated by affidavit or on the return
receipt or by notice of the postal service, as the case may be.
SECTION 19.3. In addition to the foregoing, either Landlord or Tenant
may, from time to time, request in writing that the other party serve a copy of
any Notice on one other person or entity designated in such request, such
service to be effected as provided in Section 19.1 hereof.
ARTICLE 20. GENERAL
SECTION 20.1. This Lease shall become effective upon and only upon
the execution and delivery hereof by each party hereto.
SECTION 20.2. This Lease represents the complete understanding
between the parties hereto as to the subject matter hereof, and supercedes all
prior negotiations, representations, warranties, statements or agreements,
either written or oral, between the parties hereto as to the same.
SECTION 20.3. This Lease may be amended by and only by an instrument
executed and delivered by each party hereto.
27
SECTION 20.4. This Lease shall be given effect and construed by
application of the laws of Maryland.
SECTION 20.5. Neither Tenant nor Landlord shall be deemed to have
waived the exercise of any right which it holds hereunder unless such waiver is
made expressly and in writing (and no delay or omission by Landlord or Tenant in
exercising any such right shall be deemed to be a waiver of the future exercise
thereof). No such waiver made with respect to any instance involving the
exercise of any such right shall be deemed to be a waiver with respect to any
other such instance, or any other such right.
SECTION 20.6. Time shall be of the essence of this Lease.
SECTION 20.7. The headings of the Sections, subsections, paragraphs
and subparagraphs hereof are provided herein for and only for convenience of
reference, and shall not be considered in construing the contents thereof.
SECTION 20.8. As used herein:
20.8.1. the term "person" shall mean a natural person, a trustee, a
corporation, a partnership and any other form of legal entity; and
20.8.2. all references made (a) in the neuter, masculine or feminine
gender shall be deemed to have been made in all such genders, (b) in the
singular or plural number shall be deemed to have been made, respectively, in
the plural or singular number as well, and (c) to any Article, Section,
subsection, paragraph or subparagraph shall, unless therein expressly indicated
to the contrary, be deemed to have been made to such Article, Section,
subsection, paragraph or subparagraph of this Lease.
SECTION 20.9. Each writing, plan or document referred to herein as
being attached hereto as an exhibit or otherwise designated herein as an exhibit
hereto is hereby made a part hereof.
SECTION 20.10. No determination by any court, governmental body or
otherwise that any provisions of this Lease or any amendment hereof is invalid
or unenforceable in any instance shall affect the validity or enforceability of
(a) any other provision thereof, or (b) such provision in any circumstance not
controlled by such determination. Each such provision shall be valid and
enforceable to the fullest extent allowed by, and shall be construed wherever
possible as being consistent with, applicable law.
SECTION 20.11.
20.11.1. As used herein, the term "Landlord" shall mean the entity
hereinabove named as such, and its heirs, personal representatives, successors
and assigns, each of whom shall have the same rights, remedies, powers,
authorities and privileges as it would have had, had it originally signed this
Lease as Landlord.
28
20.11.2. No person holding Landlord's interest hereunder (whether or
not such person is named "Landlord" herein) shall have any liability hereunder
after such person ceases to hold such interest, except for any such liability
accruing while such person holds such interest, and except that the original
Landlord named herein shall be obligated for all obligations accruing hereunder
until the expiration of twelve (12) months after the Commencement Date,
notwithstanding any transfer prior to such date.
20.11.3 In the event of any sale or other transfer of the Building
(or the Property), it shall be automatically deemed and construed that the
purchaser or transferee (as the case may be) has assumed and agreed to carry out
any and all covenants and obligations of Landlord hereunder.
20.11.4 Notwithstanding any other provision in this Lease, in the
event that at any time Landlord is a partnership, any judgment obtained by
Tenant against Landlord by reason of any default by Landlord shall be enforced
only against the partnership assets owned by Landlord and not against the
separate assets owned by any general partner of Landlord, provided, however,
that the foregoing limitation of liability shall not apply (a) to the
obligations of Landlord under Article 6, Article 23, Section 2.2, Section 8.3.3
or Exhibit B of this Lease or (b) to any cases of fraud or malfeasance on the
part of any general partner of Landlord, it being intended and agreed that
Landlord's general partners shall have personal liability for the obligations
referred to in the preceding clauses (a) and (b).
SECTION 20.12. As used herein, the term "Tenant" shall mean each
person hereinabove named as such and such person's heirs, personal
representatives, successors and assigns, each of whom shall have the same
obligations, liabilities, rights and privileges as it would have possessed had
it originally executed this Lease as Tenant; provided, that no such right or
privilege shall inure to the benefit of any assignee of Tenant if such
assignment is prohibited under Article 5. Whenever two or more persons
constitute Tenant, all such persons shall be jointly and severally liable for
the performance of the Tenant's obligations hereunder.
SECTION 20.13. Landlord recognizes ▇▇▇▇▇▇▇▇ Company as the sole
broker procuring this Lease and shall pay said broker a commission therefor
pursuant to a separate agreement between said broker and Landlord. Landlord
agrees to indemnify and hold harmless Tenant from any claims that may be
asserted by ▇▇▇▇▇▇▇▇ Company. Except as set forth, Landlord and Tenant each
represent and warrant that it has not entered into any agreement with, nor
otherwise had any dealings with, any other broker or agent in connection with
the negotiation or execution of this Lease which could form the basis of any
claim by any such broker or agent for a brokerage fee or commission, finder's
fee, or any other compensation of any kind or nature in connection herewith.
Except as otherwise provided in this Section 20.13, Landlord and Tenant each
agree to indemnify and hold the other harmless from any reasonable costs
(including, but not limited to, court costs, investigation costs, and attorneys'
fees), expenses, or liability for commissions or other compensation claimed by
any broker or agent with respect to this Lease which arise out of any agreement
or dealings, or alleged agreement or dealings, between such party and any such
agent or broker.
29
SECTION 20.14. Throughout the Term, Landlord shall not name or change
the name of the Building to a name of, or resembling the name of, any person,
firm, corporation, governmental agency or other entity without the prior written
approval of Tenant.
SECTION 20.15. Each of the persons executing this Lease on behalf of
Landlord or Tenant represents and warrants that such party has complied with all
applicable laws, rules and governmental regulations relative to its right to do
business in the State of Maryland, that such party has the full right and
authority to enter into this Lease, and that all persons signing on behalf of
such party were authorized to do so by any and all necessary or appropriate
corporate or partnership actions.
ARTICLE 21. ARBITRATION
SECTION 21.1. In the event of any dispute (other than payment of Base
Rent) under this Lease or any Exhibit hereto either party may refer such dispute
to arbitration. Any such arbitration shall be conducted by a single arbitrator,
except as specifically provided for in this Lease.
SECTION 21.2. The arbitration shall be conducted in the metropolitan
Washington D.C. area in accordance with the then-prevailing commercial
arbitration rules of the American Arbitration Association (or any organization
successor thereto). The decision and award shall be rendered by the arbitrator
within thirty (30) days after the appointment of the arbitrator, shall be in
writing and shall be final and conclusive on the parties. Counterpart copies
thereof shall be delivered to each of the parties. In rendering such decision
and award, the arbitrator shall not add to, subtract from or otherwise modify
the provisions of this Lease. Judgment may be had on the decision and award of
the arbitrator so rendered in any court of competent jurisdiction.
SECTION 21.3. All expenses of the arbitration (other than the fees
and disbursements of attorneys or witnesses for each party) shall be borne by
the parties equally. Notwithstanding the foregoing, in the case of a dispute
involving a claim for a monetary amount, if the arbitration award grants to the
claimant one hundred percent (100%) of the amount of such claim or no portion of
such claim, the prevailing party shall be entitled to reimbursement from the
other party of the expenses of arbitration (including reasonable attorneys'
fees) incurred by the prevailing party, and such expenses shall be included in
the arbitration award.
SECTION 21.4.
21.4.1. If Landlord shall prevail in any arbitration hereunder
involving a claimed Event of Default by Tenant under this Lease, then for the
purpose of determining the time within which Tenant must cure such claimed Event
of Default in order to avoid giving rise to Landlord's rights under Section 9.3
as the result of such Event of Default, Landlord shall be deemed to have given
Tenant notice of such Event of Default on the date the decision of the
arbitrator has been delivered to Tenant.
30
21.4.2. If Tenant shall prevail in any arbitration hereunder,
Landlord shall comply with the arbitrator's decision and award within ten (10)
business days after the decision of the arbitrator has been delivered to
Landlord. If the arbitrator determines that Tenant has overpaid any amount due
hereunder, Landlord shall promptly return such amount to Tenant, or at
Landlord's election, credit such amount to the next payments of Rent due
hereunder.
ARTICLE 22. MEMORANDUM OF LEASE
SECTION 22.1. Landlord and Tenant shall, at the request of either
party, execute, acknowledge and deliver to the other party a memorandum of this
Lease (the "Lease Memorandum") in recordable form, setting forth the date of
this Lease, the names of the parties hereto, the Commencement Date and
describing the Premises, Expansion Space (hereinafter defined) and Tenant's
options therefor, Tenant's rights to renew this Lease and the Land. Said Lease
Memorandum shall not in any circumstances be deemed to modify or to change any
of the provisions of this Lease. Either party may elect, at its sole expense,
to record this Lease or said Lease Memorandum.
SECTION 22.2. In the event that Landlord and Tenant execute said
Lease Memorandum, each party shall after the expiration or termination of the
Term, at the request of other party, execute, acknowledge and deliver a
memorandum in recordable form evidencing the expiration or termination of this
Lease, and if such party fails to execute such memorandum within fifteen (15)
days after the date of such request, such party hereby irrevocably appoints the
requesting party its attorney-in-fact to execute and deliver such memorandum on
behalf of such party. The requesting party may elect, at its sole expense, to
record said memorandum.
ARTICLE 23. LETTERS OF CREDIT
SECTION 23.1. On or before the expiration of fifteen (15) days after
the date on which Landlord acquire satisfactory title to Land in accordance with
the provisions of Article 25 hereof and evidence thereof is delivered to Tenant,
Tenant shall deliver to Landlord an unconditional, irrevocable letter of credit
from such banking institution as is reasonably acceptable to Landlord, in the
amount of One Hundred Thousand Dollars ($100,000), subject to increase as
hereinafter provided, and in the form attached hereto as Exhibit I (which Letter
of Credit and any substitute therefor is hereinafter referred to as "Tenant's
Letter of Credit"). Tenant's Letter of Credit shall be maintained in effect (or
replaced by an identical Tenant's Letter of Credit) by Tenant for the entire
period ending on the date (the "Tenant's Letter of Credit Expiration Date")
which is thirty (30) days after the Outside Completion Date and may be issued
for such period of time that expires earlier than Tenant's Letter of Credit
Expiration Date so long as each such Tenant's Letter of Credit is renewed or
replaced by an identical Tenant's Letter of Credit at least fifteen (15) days
prior to the expiration date thereof. In the event that any such Tenant's
Letter of Credit is not so renewed or replaced by an identical Tenant's Letter
of Credit at least fifteen (15) days prior to the expiration date thereof,
Landlord may draw on Tenant's Letter of Credit. The amount of Tenant's Letter
of Credit shall be increased or supplemented by an additional Tenant's Letter of
Credit in
31
accordance with the following schedule provided that at the time of any such
increase or supplement Landlord shall not have defaulted in the performance of
any of Landlord's obligations hereunder:
Amount of
Date Increase or Supplement
---- -----------------------
(a) Fifteen (15) days after $100,000
Landlord gives Tenant notice
of the Groundbreaking of the
Building
(b) Fifteen (15) days after $100,000
Landlord gives Tenant notice
of the topping out of the
Building
(c) Fifteen (15) days after $100,000
Landlord gives Tenant notice
of the date on which all of the
exterior window glazing has been
completed [other than areas, not
to exceed ten percent (10%) of
the windows, for access for
interior construction work]
(d) Fifteen (15) days after $100,000
Landlord delivers to Tenant a
certificate from Landlord's
Contractor certifying that
construction of the Leasehold
Improvements in the Premises
has commenced
SECTION 23.2. Provided Landlord is not in default hereunder, Landlord
shall be entitled to draw upon Tenant's Letter of Credit upon delivery of a
statement under oath, acknowledged before a notary public, signed by Landlord,
with signature guaranteed by a bank, stating that Tenant has defaulted under
this Lease and such default has continued beyond any applicable grace period,
and that the amount drawn under Tenant's Letter of Credit represents the amount
necessary to reimburse Landlord for damages attributable to such default.
Tenant's Letter of Credit shall be returned to Tenant on the Commencement Date
or, in the event this Lease is terminated prior to the Commencement Date, on the
date of such termination.
SECTION 23.3. On or before the date on which topping out of the
Building occurs, Landlord shall deliver to Tenant an unconditional, irrevocable
letter of credit from
32
such banking institution as is reasonably acceptable to Tenant, in the amount of
Three Hundred Thousand Dollars ($300,000), subject to reduction as hereinafter
provided, and in the form attached hereto as Exhibit J (which letter of credit
and any substitute therefor is hereinafter referred to as "Landlord's Letter of
Credit"). Landlord's Letter of Credit shall be maintained in effect (or
replaced by an identical Landlord's Letter of Credit) by Landlord for the entire
period ending on the date (the "Landlord's Letter of Credit Expiration Date")
which is one hundred twenty (120) days after the Outside Completion Date and may
be issued for such period of time that expires earlier than Landlord's Letter of
Credit Expiration Date so long as each such Landlord's Letter of Credit is
renewed or replaced by an identical Landlord's Letter of Credit at least fifteen
(15) days prior to the expiration date thereof. In the event that any such
Landlord's Letter of Credit is not so renewed or replaced by an identical
Landlord's Letter of Credit at least fifteen (15) days prior to the expiration
date thereof, Tenant may draw on Landlord's Letter of Credit. The amount of
Landlord's Letter of Credit may be reduced to Two Hundred Thousand Dollars
($200,000) on the date on which Landlord sends Tenant the sixty (60) day notice
of the Completion Date pursuant to the provisions of Section 2.2.1(k) hereof
provided such Completion Date is no later than the Outside Completion Date, but
in no event shall Landlord's Letter of Credit be so reduced below Three Hundred
Thousand Dollars ($300,000) prior to the date which is sixty (60) days before
the estimated Completion Date.
SECTION 23.4. In the event that the Commencement Date does not occur
on or before the date (the "Guaranteed Completion Date") which is the earlier of
(i) the Outside Completion Date or (ii) fifteen (15) days after the estimated
Completion Date specified in the sixty (60) day notice delivered by Landlord to
Tenant pursuant to Section 2.2.1(k), then Tenant shall be entitled to draw upon
Landlord's Letter of Credit, at the rate of Two Thousand Dollars ($2,000) per
day for each day after the Guaranteed Completion Date that is prior to the
Commencement Date, upon delivery of a statement under oath, acknowledged before
a Notary Public, signed by the President or any Vice President of Tenant with
signature guaranteed by a bank, stating that Landlord has failed to complete the
Building and Leasehold Improvements in accordance with Section 2.2 of this Lease
by the Guaranteed Completion Date. Tenant shall be entitled to continue to draw
upon Landlord's Letter of Credit until the Commencement Date, provided, however,
that in the event that the Commencement Date has not occurred by the date
Landlord's Letter of Credit is exhausted (the "Landlord's Letter of Credit
Exhaustion Date"), Tenant shall have the right to terminate this Lease by
sending notice in writing to Landlord. In the event this Lease is terminated as
herein set forth, (i) neither party shall be liable to the other for the
performance of any obligations hereunder, not shall either party, be liable to
the other for any losses or damage incurred or sustained by the other as a
result of such failure, (ii) Landlord shall reimburse Tenant for the expenses
incurred by Tenant for space planning work for the Premises and for Leasehold
Improvement Work performed by Landlord's Contractor or in connection with
termination expenses in respect of cancellation of orders for any of such items
or services for Leasehold Improvement Work performed by Landlord's Contractor
and (iii) Landlord shall pay to Tenant as fixed, agreed and liquidated damages,
the sum of Three Hundred Thousand Dolars ($300,000) on the date of termination
of this Lease. In the event that Tenant does not elect to terminate this Lease
as herein provided, Landlord shall provide Tenant, as fixed, agreed and
liquidated damages two (2) days' free rent for each day during the period
33
commencing on Landlord's Letter of Credit Exhaustion Date and ending on the
Commencement Date. Landlord's Letter of Credit (to the extent not fully drawn
upon) shall be returned to Landlord on the Commencement Date.
ARTICLE 24. WARRANTIES AND REPRESENTATIONS
SECTION 24.1. Landlord represents and warrants that prior to
Groundbreaking hereunder, Landlord shall acquire satisfactory title to the Land
in accordance with the provisions of Article 25 and the Property shall not be
subject to any Superior Instruments except as such as with respect to which the
Holder of any such Superior Instrument shall have executed, acknowledged and
delivered to Tenant the non-disturbance agreement required by Section 17.1
hereof.
SECTION 24.2. Tenant hereby acknowledges and agrees that there have
been no warranties or representations, verbal or written, made by Landlord or
any agent or representative of Landlord, including, but not by way of
limitation, any broker employed by Landlord, other than as expressly set forth
in this Lease, and Tenant hereby waives any claim which it may have against
Landlord by virtue of any representation or warranty not expressly set forth
herein made by any person whomsoever on behalf of Landlord.
ARTICLE 25. ACQUISITION OF LAND.
SECTION 25.1. In the event that Landlord does not acquire
satisfactory title to the Land in fee simple in accordance with the provisions
hereinafter set forth in Section 25.2 on or before January 15, 1985, Tenant may
elect to terminate this Lease by giving Landlord written notice of termination
at any time after January 15, 1985 that is prior to the date on which Landlord
does acquire such satisfactory title to the Land, and this Lease shall
automatically terminate (if it has not previously been terminated) on the date
that Landlord's right to acquire the Land expires. In the event this Lease is
terminated as herein set forth, neither party shall be liable to the other for
the performance of any obligations hereunder, nor shall either party be liable
to the other for any losses or damage incurred or sustained by the other as a
result of such failure; provided, that Landlord shall reimburse Tenant for the
expenses incurred by Tenant for space planning work for the Premises in an
amount not to exceed Ten Thousand Dollars ($10,000).
SECTION 25.2. For purposes of this Lease, Landlord shall have
acquired "satisfactory title" to the Land only if Landlord shall have delivered
to Tenant a copy of a standard ALTA (Form B) owner's title insurance policy
issued to Landlord by a recognized title insurance company insuring Landlord's
fee simple ownership of the Land subject to no Superior Instruments (defined in
Section 17.1) except such as with respect to which the Holder of such Superior
Instrument shall have executed, acknowledged and delivered to Tenant the
non-disturbance agreement required by Section 17.1 hereof, and disclosing no
easements, covenants or other exceptions to Landlord's title to the Land
(collectively, "Title Exceptions") except such Title Exceptions as will not (i)
adversely affect Tenant's interest in the Lease, (ii) impose any cost, expense,
limitation or restriction on Tenant in connection
34
with Tenant's use of the Premises in accordance with the terms of this Lease,
(iii) in any way interfere with, limit, restrict or adversely affect Tenant's
conduct of Tenant's business operations in the Premises, or (iv) adversely
affect Landlord's ability to construct the Building in accordance with the Plans
and Specifications.
ARTICLE 26. PARKING
SECTION 26.1. Landlord shall provide or require that any garage
operator shall offer to Tenant, and Tenant agrees to accept, three (3) monthly
parking contracts for a right to park a full-sized American automobile ("Parking
Right") in the Building parking garage for each one thousand (1,000) square feet
of Rentable Area of the Premises leased by Tenant on the Commencement Date.
Landlord shall also provide or require that any garage operator shall offer to
Tenant no fewer than two (2) additional monthly parking contracts, and as many
as three (3) additional monthly parking contracts to the extent they are
available (the "Additional Parking"), for a Parking Right in the Building
parking garage for each one thousand (1,000) square feet of Expansion Space
leased by Tenant pursuant to any right granted in Article 29 hereof, which
Parking Rights for Additional Parking Tenant shall have the option, but not the
obligation, to accept in whole or in part by written notice to Landlord prior to
the expiration of ninety (90) days after the commencement of the term of the
lease of the applicable Expansion Space. Each Parking Right shall permit
in-and-out parking, twenty-four (24) hours per day, seven (7) days a week
(either on a self-park or attendant basis, as determined by Landlord), provided,
however that Landlord shall provide at least twelve (12) Parking Rights on a
self-park basis (in locations designated by Landlord) where the automobile
driver may remove his car without obstruction and without access to any other
car. Tenant shall pay, as Additional Rent, a monthly rental for each Parking
Right of Eighty-five Dollars ($85) per month, which monthly rental shall be
increased at the end of each Lease Year by the percentage increase in the CPI-U
that has occurred during such Lease Year. Notwithstanding the foregoing, the
monthly rental for the Additional Parking shall be the monthly rental then being
charged by the operator of the garage for new monthly contracts at the time the
Expansion Space is added to the Premises, subject to the same annual CPI-U
increase as herein provided during each Lease Year thereafter. Except as
otherwise provided herein, the parking contracts shall be with the garage
operator and shall contain the same terms as are usually contained in contracts
with other customers of the garage operator, but subject to the provisions of
this Article 26.
SECTION 26.2. Landlord warrants to Tenant that any person or entity
with whom Landlord may contract for the operation of the garage in the Building
(including any lessee of all or a substantial portion of the garage) shall
acknowledge in such contract or lease Tenant's rights under this Article 26 and
shall assume Landlord's obligations hereunder.
ARTICLE 27. RENEWAL OPTIONS
SECTION 27.1. Tenant shall have and is hereby granted two successive
options to renew or extend the Term for additional periods of five (5) years
each (the "Renewal Periods"). Subject to the provisions of Section 27.4, each
renewal option shall be
35
exercisable by Tenant by giving written notice of the exercise of such renewal
option to Landlord at least nine (9) months prior to the expiration of (i) the
initial Term, in the case of the first such renewal option, and (ii) the first
Renewal Period, in the case of the second such renewal option. In the event
that Tenant exercises the option or options to renew this Lease in accordance
with the provisions hereof, then the Term shall be extended accordingly. Except
as otherwise expressly provided herein, each Renewal Period shall be upon the
same terms, covenants and conditions as set forth herein with respect to the
immediately preceding portion of the Term. All references in this Lease to the
Term shall be construed to mean the initial Term and the Renewal Period or
Periods, unless the context clearly indicates that another meaning is intended.
For purposes of this Lease, no distinction is made between the terms "extend"
and "renew," or any variations thereof.
SECTION 27.2. The Base Rent for the Premises payable pursuant to
Article 4 during each Renewal Period shall be equal to ninety-five percent (95%)
of the Fair Market Value Rate (as defined below) of the Premises as of the
commencement of such Renewal Period multiplied by the Rentable Area of the
Premises. The Operating Costs Factor during each Renewal Period shall be the
quotient derived by dividing the Annual Operating Costs for the calendar year in
which the applicable Renewal Period commences by the Rentable Area of the
Building. Notwithstanding the foregoing, in no event shall the Base Rent
payable during a Renewal Period be less than the Base Rent payable by Tenant
pursuant to the provisions of Article 4 during the Lease Year immediately
preceding the commencement of the applicable Renewal Period.
SECTION 27.3. At least six (6) months prior to the commencement of
the Renewal Period, Landlord shall send to Tenant a written notice specifying
the Fair Market Value Rate as determined by Landlord in accordance with Section
27.5. Within thirty (30) days after receipt of such notice from Landlord,
Tenant shall send Landlord a written notice of Tenant's acceptance or challenge
of Landlord's determination of such rate, provided, however, that in the event
that Tenant fails to respond within such thirty (30) day period, Tenant shall be
deemed to have accepted Landlord's determination of the Fair Market Value Rate.
In the event that Tenant challenges Landlord's determination of the Fair Market
Value Rate and Landlord and Tenant are not able to agree on such rate within
fifteen (15) days (the "Negotiation Period") after Tenant notifies Landlord of
Tenant's initial rejection of Landlord's determination of such Fair Market Value
Rate, then Landlord and Tenant shall each, within fifteen (15) days after the
expiration of the Negotiation Period, select an appraiser, each of whom shall be
a licensed real estate broker or a MAI-certified real estate appraiser with five
(5) years' experience in the metropolitan Washington, D.C. office market who
shall determine the Fair Market Value Rate in accordance with Section 27.5. The
appraisers shall be instructed to complete the appraisal procedure and to submit
their written determinations to Landlord and Tenant within thirty (30) days
after their meeting. In the event that the determination of the Fair Market
Value Rate submitted by Landlord's appraiser is equal to or less than one
hundred ten percent (110%) of the determination of the Fair Market Value Rate
submitted by Tenant's appraiser, the Fair Market Value Rate shall be the average
of such determinations. If the determination of the Fair Market Value Rate
submitted by Landlord's appraiser is greater than one hundred ten percent (110%)
of the
36
determination of the Fair Market Value Rate submitted by Tenant's appraiser, the
appraisers shall, within ten (10) days, appoint a third appraiser with similar
qualifications to make such determination of the Fair Market Value Rate. In the
event that the two appraisers cannot agree as to the selection of the third
appraiser within fifteen (15) days after Landlord and Tenant are notified of the
determination of the appraisers, either party may request that the President of
the Washington Board of Realtors (or any successor organization) appoint the
third appraiser. The third appraiser shall be instructed to complete the
appraisal procedure and to submit a written determination of the Fair Market
Value Rate to Landlord and Tenant within thirty (30) days after such appraiser's
appointment. The determination which is neither the highest nor the lowest of
the three determinations shall be binding upon Landlord and Tenant as the Fair
Market Value Rate. Landlord and Tenant shall each bear the costs of their
respective appraisers. The expenses of the third appraiser shall be borne
one-half (1/2) by Landlord and one-half (1/2) by Tenant.
SECTION 27.4. None of the options referred to in Section 27.1, none
of the Expansion Options referred to in Article 29 and none of the purchase
options referred to in Article 30 may be exercised by Tenant if, at the time
specified in Section 27.1, Article 29 or 30, as the case may be, for exercising
such option, this Lease shall not be in full force and effect or in the event
that Tenant at the time Tenant exercises such option shall be in default in the
performance of any obligations hereunder, such default has continued uncured
beyond the grace period for curing such default set forth in Section 9.2 and
Landlord has served written notice to Tenant that it has exercised any of its
remedies under Section 9.3. If Tenant shall fail to exercise either renewal
option during the time or in the manner provided in Section 27.1 above for the
exercise thereof, or if at the time specified for the exercise of such renewal
option Tenant shall not be entitled to exercise such option because of the
provisions of this Section 27.4, then, and in either such event, such renewal
option, and any additional renewal option, shall be absolutely void and of no
force and effect.
SECTION 27.5. For purposes of this lease, the term "Fair Market Value
Rate" means the fair market rental rate per square foot of Rentable Area of the
Premises or the Expansion Space (hereinafter defined), as the case may be, that
would be agreed upon between a landlord and a tenant executing a lease in a
comparable building of comparable age located in the Bethesda Central Business
District, assuming the following; (A) the landlord and tenant are typically
motivated; (B) the landlord and tenant are well informed and well advised and
each is acting in what it considers its own best interest; (C) the rental is
unaffected by concessions, special financing amounts and/or terms, or unusual
services, fees, costs or credits in connection with the leasing transaction; (D)
the leased premises are fit for immediate occupancy and use "as is" and no work
is required to be done by the landlord (and that the tenant would not require
any additional tenant work or reconfiguration of the existing tenant work); (E)
the leased premises are to be let with vacant possession and subject to the
provisions of this Lease for a five-year term (taking into account the
provisions of this Lease); (F) the tenant is paying all costs of electricity
provided to the leased premises; (G) there is no brokerage or finders fee or
commission payable by either party, and (H) market rents then being charged for
comparable space in other similar office buildings in comparable locations. In
no event, however, shall the Fair Market Value Rate be less than the Base Rent
per square foot of Rentable Area of the Premises for the Lease Year immediately
preceding
37
the commencement of the Renewal Period or the commencement of the term of the
leasing of the Expansion Space, as the case may be.
ARTICLE 28. ADDITIONAL SPACE
Subject to the terms and conditions hereinafter set forth, Tenant
shall have the option to lease the entire ninth (9th) floor of the Building,
consisting of approximately 11,363 square feet of Rentable Area (the "Additional
Space"), on the same terms and conditions as the Premises, by sending written
notice to Landlord at any time on or before October 1, 1985. On the date of
delivery to Tenant of possession of the Additional Space in accordance with the
provisions of this Lease, such space shall be added to and constitute a part of
the Premises subject to all the terms and conditions of this Lease.
ARTICLE 29. RIGHT OF FIRST OFFERING
SECTION 29.1. In the event that Rentable Area (the "Expansion Space")
from time to time becomes available anywhere in the Building during the period
commencing on the date hereof until the end of the Term, and provided this Lease
is in full force and effect, Tenant shall have the option (the "Expansion
Option") to lease such Expansion Space on the terms and conditions hereinafter
set forth. Landlord shall send notice in writing (the "Expansion Notice") to
Tenant specifying the location and configuration of such Expansion Space and the
date on which the Expansion Space is scheduled to become available for
occupancy, provided, that in no event shall Landlord send an Expansion Notice to
Tenant more than twelve (12) months prior to the time at which the space which
is the subject of such Expansion Notice is scheduled to become available for
occupancy. Each Expansion Option shall be exercisable by Tenant giving written
notice of the exercise of the particular Expansion Option within thirty (30)
days after Landlord sends the applicable Expansion Notice. Tenant shall lease
the Expansion Span on the same terms and conditions as the Premises except that
(a) the Base Rent payable pursuant to Article 4 of this Lease shall be the Fair
Market Value Rate, determined as of the date of the exercise of such option by
Tenant, of such Expansion Space multiplied by the Rentable Area of the Expansion
Space, and (b) the Operating Costs Factor applicable to the Expansion Space
shall be the quotient derived by dividing the Annual Operating Costs for the
calendar year in which the term of the lease of such Expansion Space commences
by the Rentable Area of the Building, provided however, that with respect to
Expansion Space offered to Tenant hereunder which has not been previously leased
to any tenant ("Initial Lease-Up Expansion Space"), the determination of the
Fair Market Value Rate shall take into consideration the then-existing state of
such Initial Lease-Up Expansion Space, including the existence or non-existence
of any leasehold improvements therein, and the absence of any cash allowance for
any such work payable to Tenant by Landlord. In the event that Tenant does not
exercise any such Expansion Option within the time period required by this
Section 29.1, Landlord shall be free to lease the Expansion Space that was the
subject of such Expansion Option to any other party on such terms and conditions
that Landlord determines in Landlord's sole discretion, but Tenant's option
rights under this Section 29.1 shall continue in full force and effect with
respect to any Expansion Space thereafter becoming available for lease in
accordance with this Article 29.
38
SECTION 29.2. On the date of delivery of possession of the Expansion
Space (but not earlier than the date on which Landlord previously advised Tenant
such Expansion Space would be available), such space shall be added to and
constitute a part of the Premises. Tenant shall accept the Expansion Space in
its "as is" condition and Tenant's obligation to pay rent with respect to the
Expansion Space shall commence on the date of delivery of such space by Landlord
to Tenant (but not earlier than the date on which Landlord previously advised
Tenant such Expansion Space would be available). Landlord shall have no
obligation to make any alterations, decorations, additions or improvements in or
to the Expansion Space. Tenant shall not make any alterations, installations,
additions or improvements to the Expansion Space unless Tenant complies with
Section 8.2.2 of this Lease.
SECTION 29.3. Notwithstanding anything herein contained to the
contrary, Tenant shall be entitled to lease only that amount of Initial Lease-Up
Expansion Space which will not, when aggregated with the Rentable Area of the
Premises, exceed seventy-five percent (75%) of the Rentable Area of the
Building.
SECTION 29.4. Tenant's option rights under this Article 29 shall be
subject to any option granted by Landlord to another tenant of the Building
contained in the original lease executed by Landlord and such other tenant that
permits such other tenant the right to expand its leased premises to add
additional space whose location is specifically described in such original lease
at a particular time (such as, for example, an option in the original ten (10)
year lease of a tenant leasing seventy-five percent (75%) of the fourth (4th)
floor to lease the remainder of the fourth (4th) floor effective in the fifth
(5th) lease year), but Tenant's rights under this Article 29 shall be superior
to any other rights of first offering or first refusal granted to any other
tenant of the Building.
ARTICLE 30. TENANT'S OPTION TO PURCHASE
SECTION 30.1.
30.1.1. In the event that Landlord shall, at any time during the
Term, desire to sell the Property, Landlord shall send to Tenant a written
notice (the "Sale Notice") setting forth the purchase price and the terms of any
such proposed sale of the Property by Landlord. Tenant shall, for a period of
sixty (60) days (the "Option Period") after Tenant's receipt of the Sale Notice,
have the right to elect to (i) purchase the Property on the terms and conditions
set forth in the Sale Notice; or (ii) make a counteroffer for the purchase of
the Property by sending Landlord a written statement setting forth Tenant's
proposed terms and conditions for the purchase of the Property (the
"Counter-offer"); or (iii) notify Landlord in writing of Tenant's election not
to purchase the Property.
30.1.2. If Tenant elects to accept the terms set forth in the Sale
Notice, Tenant shall send a written notice to such effect to Landlord prior to
the end of the Option Period and Landlord and Tenant shall make settlement of
Tenant's purchase of the Property in accordance with the terms of the Sale
Notice, subject to the provisions of Section 30.4.
39
30.1.3. If Tenant elects to make the Counteroffer, Landlord shall
notify Tenant in writing of its acceptance or rejection of the Counteroffer
within ten (10) days after Landlord receives the Counteroffer. In the event
that Landlord elects to accept the Counteroffer, Landlord and Tenant shall make
settlement of Tenant's purchase of the Property in accordance with the terms of
the Counteroffer, subject to the provisions of Section 30.4.
30.1.4. In the event Tenant shall elect not to purchase the Property
or Landlord shall not accept the Counteroffer, Landlord shall have the right
during the one (1) year period (the "Third Party Solicitation Period")
commencing on the expiration of the Option Period, to offer to sell the Property
to a third party, subject to the provisions of this Section 30.1.4. Landlord
shall send Tenant a copy of any offer (the "Outside Offer)" to purchase Property
from any such third party that is acceptable to Landlord, which shall set forth
the name and address of such third party and the terms and conditions of the
proposed purchase. In no event shall Landlord accept an offer to purchase the
Property for an amount (based upon present value discounted at a rate equal to
the discount rate of such financing at then prevailing market conditions
assuming that the seller of such financing obligation is not in a forced sale
position) that is less than the lesser of (i) the amount set forth in any
Counteroffer made by Tenant during the Option Period or (ii) the purchase price
for the Property initially set forth in the Sale Notice, unless Landlord shall
first give to Tenant the right, exercisable for sixty (60) days prior to
Landlord's acceptance of the Outside Offer, to purchase the Property on the same
terms and conditions as those contained in the Outside Offer.
SECTION 30.2.
30.2.1. In the event that Landlord shall, at any time during the
Term, receive a Bona Fide Offer (hereinafter defined) to purchase the Property
that Landlord is willing to accept, except an Outside Offer received during the
Third Party Solicitation Period in connection with the procedure described in
subsection 30.1.4 above, Landlord shall send Tenant notice in writing (the
"Notice of Bona Fide Offer") containing a true and complete copy of the Bona
Fide Offer, setting forth the price and all terms and conditions, with the name
and address of the third party offeror. For purposes hereof, a "Bona Fide
Offer" shall be an offer in writing, signed by an unrelated offeror or offerors
(who must be a person or persons financially capable of carrying out the terms
of such Bona Fide Offer), in a form legally enforceable against such outside
offeror or offerors.
30.2.2. Whenever a Bona Fide Offer to purchase the Property has been
received and the Notice of Bona Fide Offer has been sent by Landlord to Tenant,
the following procedure shall be complied with: For a period of thirty (30)
days from Tenant's receipt of the Notice of Bona Fide Offer, Tenant shall have
the right to purchase the Property on the same terms and conditions as the Bona
Fide Offer. If Tenant shall not elect to purchase the Property in accordance
with the terms and conditions of the Bona Fide Offer, Landlord shall have the
right to accept the Bona Fide Offer and to sell and convey the Property but only
in strict accordance with all of the provisions of the Bona Fide Offer and only
if the sale is fully consummated within one (1) year after Tenant's receipt of
the Notice
40
of Bona Fide Offer, and in the event of any such sale and conveyance, Tenant's
option rights pursuant to this Article 30 shall terminate and be of no further
force or effect.
SECTION 30.3. As a condition of exercising the option to purchase the
Property pursuant to Section 30.1. or 30.2, simultaneously with or prior to the
exercise of such option, Tenant shall deposit with a recognized title insurance
company (the "Title Company") situated in the metropolitan Washington, D.C. area
either:
(a) A cash deposit (the "Purchase Option Deposit") in an amount
equal to either (i) one percent (1%) of the purchase price set forth in the
Sales Notice or the Counteroffer, as applicable, or (ii) the deposit required
under the Outside Offer or the Bona Fide Offer, as applicable, which shall be
applied to the purchase price at settlement of such purchase; or
(b) An unconditional, irrevocable letter of credit from such
banking institution as is reasonably acceptable to Landlord, in an amount equal
to either (i) one percent (1%) of the purchase price set forth in the Sale
Notice or the Counteroffer, as applicable, or (ii) the deposit required under
the Outside Offer or the Bona Fide Offer, as applicable, which shall be
substantially in the form attached hereto as Exhibit K (which letter of credit
and any substitute therefore is hereinafter referred to as the "Purchase Option
Letter of Credit"). The Purchase Option Letter of Credit shall be maintained in
effect (or replaced by an identical Purchase Option Letter of Credit) by Tenant
for the entire period ending on the date (the "Purchase Option Letter of Credit
Expiration Date") which is thirty (30) days after the Purchase Option Settlement
Date (hereinafter defined) and may be issued for such period of time that
expires earlier than the Purchase Option Letter of Credit Expiration Date so
long as each such Purchase Option Letter of Credit is renewed or replaced by an
identical Purchase Option Letter of Credit at least fifteen (15) days prior to
the expiration date thereof. In the event that any such Purchase Option Letter
of Credit is not so renewed or replaced by an identical Purchase Option Letter
of Credit at least fifteen (15) days prior to the expiration date thereof, the
Title Company may draw on the Purchase Option Letter of Credit and the proceeds
thereof shall the constitute the Purchase Option Deposit and shall be held and
disbursed by the Title Company as provided in Section 30.3 (a).
SECTION 30.4. In the event that Tenant exercises its option to
purchase the Property pursuant to Section 30.1 or 30.2, settlement shall be held
on the date (the "Purchase Option Settlement Date") required by the Sale Notice,
the Counteroffer, the Outside Offer or the Bona Fide Offer, as may be
applicable, but not earlier than ninety (90) days after the date of exercise by
Tenant of such purchase option. It shall be a condition of Tenant's obligation
to make settlement of such purchase that Tenant shall receive at settlement of
such purchase (at Tenant's expense) a full coverage owner's title insurance
policy (ALTA Form B) from a recognized title insurance company designated by
Tenant insuring Tenant's ownership of the Property free and clear of all liens,
encumbrances and title exceptions except any matters permitted as title
exceptions under the provisions of the Sale Notice, the Counteroffer, the
Outside Offer or the Bona Fide Offer, as applicable.
41
SECTION 30.5. Tenant's option rights under this Article 30 shall be
assignable by Tenant and in such event title to the Property shall be acquired
in such name as may be designated by Tenant or Tenant's assignee; provided,
however, that in the event that the Outside Offer or the Bona Fide Offer
requires the delivery of a deferred purchase money promissory note at settlement
of such purchase that is executed by a purchaser having a net worth in excess of
the principal amount of such deferred purchase money promissory note and which
provides for personal liability of such purchaser, then such deferred purchase
money promissory note that shall be delivered by Tenant or its assignee shall be
executed or guaranteed either by a party having a net worth in excess of the
principal amount of such deferred purchase money promissory note or by Tenant.
SECTION 30.6. If Tenant defaults in its obligation to purchase the
Property when Tenant is obligated to make settlement of such purchase, the
Purchase Option Deposit shall be forfeited and paid to Landlord as fixed, agreed
and liquidated damages and Tenant shall thereupon be relieved of all further
obligations to Landlord by reason of such default, and this Lease shall continue
in full force and effect but Tenant's option rights under this Article 30 shall
cease and terminate and the provisions of this Article 30 shall have no further
force or effect.
ARTICLE 31. TENANT'S REFURBISHING ALLOWANCE;
REFURBISHING BY LANDLORD
SECTION 31.1. Landlord shall, on or before the thirtieth (30th) day
of the (6th) Lease Year, pay to Tenant a cash allowance equal to the product of
One and 50/100ths Dollars ($1.50) multiplied by the Rentable Area of the
Premises (including any Expansion Space), to be applied by Tenant to (and
payable to Tenant only to the extent applied by Tenant to pay or to reimburse
Tenant for the payment of) the cost of Tenant's refurbishing of the Premises.
SECTION 31.2. Landlord covenants and agrees to renovate, refurbish
and improve the common and public areas of the Building as frequently as
necessary, but at least as often as once every five (5) years during the Term,
if and to the extent required to maintain the quality of the Building as a
first-class office building in the Washington, D.C. metropolitan area. Any
alterations or redecoration of the common and public areas shall be subject to
Tenant's approval of the quality and nature thereof, which approval shall not be
unreasonably withheld or delayed.
42
IN WITNESS WHEREOF, each party hereto has executed and sealed this Lease,
or has caused it to be executed and sealed on its behalf by its duly authorized
representatives, the day and year first above written.
WITNESS: LANDLORD:
COMMUNITY MOTORS PROPERTY
ASSOCIATES LIMITED
PARTNERSHIP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------- ------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇,
General Partner
ATTEST: TENANT:
FEDERAL DATA CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------- ------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Secretary ▇▇▇▇▇▇ ▇▇▇▇▇▇, President
43
_______________ss:
I, ________________, a Notary Public in and for the
_______________________, do hereby certify that ▇▇▇▇ ▇. ▇▇▇▇▇▇, who is
personally well known to me as a person named as the General Partner of
Community Motors Property Associates Limited that executed the foregoing and
annexed Agreement of Lease, personally appeared before me in said jurisdiction
and acknowledged that he, as such General Partner being duly authorized so to
do, executed the foregoing and annexed Agreement of Lease on behalf of said
corporation.
Given under my hand and seal this ______ day of ________________ A.D.,
1984.
-----------------------------------
Notary Public
[Notarial Seal]
_______________ss:
I, ________________, a Notary Public in and for the
_______________________, do hereby certify that ___________________, who is
personally well known to me as a person named as the _____________________ of
Federal Data Corporation that executed the foregoing and annexed Agreement of
Lease, personally appeared before me in said jurisdiction and acknowledged that
he, as such _____________________ being duly authorized so to do, executed the
foregoing and annexed Agreement of Lease on behalf of said corporation.
Given under my hand and seal this ______ day of ________________ A.D.,
1984.
-----------------------------------
Notary Public
[Notarial Seal]
44
INDEX
Page
----
ARTICLE 1. PREMISES......................................................... 2
ARTICLE 2. TERM............................................................. 3
ARTICLE 3. USE.............................................................. 6
ARTICLE 4. RENT............................................................. 6
ARTICLE 5. ASSIGNMENT AND SUBLETTING........................................ 13
ARTICLE 6. CONSTRUCTION OF BUILDING AND PREMISES............................ 14
ARTICLE 7. FIRE AND OTHER CASUALTY.......................................... 15
ARTICLE 8. MAINTENANCE AND SERVICES.......................................... 16
ARTICLE 9. DEFAULTS BY TENANT............................................... 19
ARTICLE 10. HOLDING OVER.................................................... 21
ARTICLE 11. LANDLORD'S RIGHT OF ENTRY....................................... 21
ARTICLE 12. INSURANCE AND INDEMNIFICATION................................... 22
ARTICLE 13. EMINENT DOMAIN.................................................. 23
ARTICLE 14. MECHANICS' AND MATERIALMENS' LIENS.............................. 24
ARTICLE 15. QUIET ENJOYMENT - SURRENDER..................................... 24
ARTICLE 16. RULES AND REGULATIONS........................................... 25
ARTICLE 17. SUBORDINATION - ATTORNMENT...................................... 25
ARTICLE 18. ESTOPPEL CERTIFICATE............................................ 26
ARTICLE 19. NOTICES......................................................... 26
ARTICLE 20. GENERAL......................................................... 27
ARTICLE 21. ARBITRATION..................................................... 30
45
ARTICLE 22. MEMORANDUM OF LEASE............................................. 31
ARTICLE 23. LETTERS OF CREDIT............................................... 31
ARTICLE 24. WARRANTIES AND REPRESENTATIONS.................................. 34
ARTICLE 25. ACQUISITION OF LAND............................................. 34
ARTICLE 26. PARKING......................................................... 35
ARTICLE 27. RENEWAL OPTIONS................................................. 35
ARTICLE 28. ADDITIONAL SPACE................................................ 38
ARTICLE 29. RIGHT OF FIRST OFFERING......................................... 38
ARTICLE 30. TENANT'S OPTION TO PURCHASE..................................... 39
ARTICLE 31. TENANT'S REFURBISHING ALLOWANCE;
REFURBISHING BY LANDLORD............................... 42
Attachments: Exhibit A - Floor Plans of Premises
Exhibit B - Leasehold Improvements
Exhibit C - Declaration of Commencement Date
Exhibit D - Plans and Specifications
Exhibit E - Holidays
Exhibit F - Cleaning Specifications
Exhibit G - Rules and Regulations
Exhibit H - Non-Disturbance Agreement
Exhibit I - Tenant's Letter of Credit
Exhibit J - Landlord's Letter of Credit
Exhibit K - Purchase Option Letter of Credit
Schedule I - Legal descripton of the Land
46
DEFINITIONS
The following terms are defined in the Sections indicated:
Term Section
---- -------
Additional Parking 26.1
Additional Real Property 4.4.2
Additional Rent 4.1.2
Additional Space 28
Alterations 8.2.2
Annual Operating Costs 4.3.1
Base Rent 4.1.1
Bona Fide Offer 30.2.1
Building 1.1
Building Architect 1.2.1
Commencement Date 2.1
Completion Date 2.2.1(k)
Counteroffer 30.1.1
CPI-U 4.2(a)(i)
Electrical Consumption Costs Statement 4.3.3
Electrical Consumption Factor 4.3.4
Energy Saving Capital Improvement 4.3.10
Event of Default 9.1
Expansion Notice 29.1
Expansion Option 29.1
Expansion Space 29.1
Expiration Date 2.1
Fair Market Value Rate 27.5
Groundbreaking 6.4
Guaranteed Completion Date 23.4
Holders of Superior Instruments 17.1
Holidays 8.1.1
Initial Lease-Up Expansion Space 29.1
Land 1.1
Landlord 20.11.1
Landlord's Letter of Credit 23.3
Landlord's Letter of Credit Exhaustion Date 23.4
Landlord's Letter of Credit Expiration Date 23.3
Lease Memorandum 22.1
Legal Requirements 6.1
Liquidation Bankruptcy Proceeding 9.1.3
Negotiation Period 27.3
Notice of Bona Fide Offer 30.2.1
Notice of Dispute 4.3.9
Notices 19.1
47
Term Section
---- -------
Operating Costs Factor 4.3.4
Operating Costs Statement Option Period 4.3.5
Option Period 30.1.1
Outside Completion Date 6.4
Outside Offer 30.1.4
Parking Right 26.1
Person 20.8.1
Plans and Specifications 6.1
Premises 1.1
Property 1.1
Purchase Option 30.3(a)
Purchase Option Letter of Credit 30.3(b)
Purchase Option Letter of Credit Expiration Date 30.3(b)
Purchase Option Settlement Date 30.4
Rate 4.3.3
Real Estate Taxes 4.4.1
Renewal Periods 27.1
Rent 4.1
Rentable Area 1.2.1
Rentable Area of the Building 1.2.1
Rentable Area of the Premises 1.2.1
Rules and Regulations 16
Sale Notice 30.1.1
Substantially Completed 2.2.3
Superior Instruments 17.1
Tenant 20.12
Tenant's Architect 1.2.1
Tenant's Electrical Consumption Costs 4.3.3
Tenant's Estimated Operating Costs Amount 4.3.8
Tenant's Finish Work 6.2
Tenant's Letter of Credit 23.1
Tenant's Letter of Credit Expiration Date 23.1
Tenant's Operating Costs Amount 4.3.6
Term 2.1
Third Party Solicitation Period 30.1.4
Title Company 30.3
Title Exceptions 25.2
Warranty Period 8.3.3
48
EXHIBIT B
LEASEHOLD IMPROVEMENTS
ARTICLE 1
DEFINITIONS
The terms defined in Article 1 of this Exhibit B, for all purposes of
this Exhibit B, shall have the meanings herein specified and, in addition to the
terms defined herein, the definitions in the Lease shall also apply to this
Exhibit B.
SECTION 1.1. "Building Standard" means the quantity and quality of
materials and finishes set forth in Exhibit B-1. Such improvements shall be
supplied, installed, finished and paid for by Landlord.
SECTION 1.2. "Building Shell Work" means the following improvements
in and about the Premises which shall be supplied, installed, finished and paid
for by Landlord: (a) outside walls and core walls in such manner, including
finish materials, as befits a first-class office building in the Washington,
D.C. metropolitan area;(b) unfinished concrete floors installed throughout the
Premises, broom clean;(c) Building Standard ceiling grid system installed
throughout exclusive of ceiling tile;(d) Building Standard 277/480 volt and
120/208 volt power supplied to the Building core and the power grid in
ceiling;(e) mens' and ladies' restroom facilities with Building Standard
finishes located on each floor on which the Premises are located;(f) main
heating, ventilating, and air conditioning ducts completed to the perimeter VAV
box of each perimeter bay, and standard thermostats, connected in the ceiling at
the ratio of one (1) for each such perimeter bay, and for interior one space,
one VAV box and standard thermostat for each one thousand (1,000) square feet of
interior space;(g) risers and main loop on each floor with sprinkler piping,
drops and heads installed as required by applicable governmental and insurance
requirements;(h) Building Standard communication speakers and smoke detectors if
and to the extent required by applicable governmental and insurance
requirements;(i) all exterior walls shall have thermal insulation and all
windows shall have double glazing;(j) all floor openings and stairs, stair
openings, fire rated drywall enclosures and standard fire rated doors for
stairwells and structural engineering required for these items shall have been
provided by Landlord; and (k) thin slat venetian blinds hung on all exterior
windows.
SECTION 1.3. "Tenant Work" means the items which are supplied,
installed, and finished by Landlord's Contractor or Tenant's Contractor in or
for the Premises on behalf of Tenant, as hereinafter provided for, which are not
included in the Building Standard specifications in or for the Premises in terms
of quantity or quality (or both) and which are not
B-1
included in Building Shell Work. The design of the Tenant Work shall be
consistent with sound architectural and construction practice in first-class
office buildings.
SECTION 1.4. "Leasehold Improvements" shall mean the aggregate of
the Building Standard improvements and the Tenant Work.
SECTION 1.5. "Landlord's Contractor" means the contractor selected
by Landlord to construct the Building.
SECTION 1.6. "Tenant's Contractor" means the contractor selected by
Tenant to construct and install the Leasehold Improvements in the Premises in
the event Tenant elects to have Tenant's Contractor perform such work pursuant
to the provisions of Article 5 hereof.
SECTION 1.7. "Landlord's Architect" shall mean the architectural
firm of ▇▇▇▇▇▇▇▇▇ + ▇▇▇▇ or such other architectural firm rendering services
relating to the Premises that Landlord and Tenant shall mutually approve.
ARTICLE 2
COMPLETION OF PREMISES
SECTION 2.1. The "Architectural Plans" shall mean complete
architectural working drawings and specifications for the Leasehold Improvements
to the Premises prepared by Landlord's Architect based upon information
furnished by Tenant. The Architectural Plans shall show all Leasehold
Improvements including, but not limited to, partitions, doors, wall finishes,
floor coverings, reflected ceilings, all special requirements and all items
required by Landlord's mechanical, electrical and structural engineers to
prepare mechanical, electrical, structural, and plumbing plans and
specifications for the Premises.
SECTION 2.2. In accordance with the procedure and time schedule set
forth in this Article 2, Landlord and Tenant shall do the following:
(a) Landlord confirms that prior to execution of this Lease,
Tenant submitted to Landlord's Architect all information necessary to enable
Landlord's Architect to prepare the Architectural Plans.
(b) Landlord shall cause Landlord's Architect to prepare and
submit the Architectural Plans to Tenant with reasonable diligence. The fees
and expenses of Landlord's Architect for preparing the Architectural Plans and
revisions thereto and for consultations with Tenant shall be paid by Landlord to
the extent of an allowance equal to Forty-Three Cents ($0.43) multiplied by the
Rentable Area of the Premises and shall be paid by Tenant to the extent that
such fees and expenses exceed such allowance payable by Landlord.
B-2
(c) Within twenty (20) days after Landlord's delivery of the
Architectural Plans to Tenant, Tenant shall deliver to Landlord its approval or
disapproval of such Plans in accordance with Section 2.5 hereof.
(d) Within thirty (30) days after the approval of the
Architectural Plans, Landlord, at Landlord's sole cost and expense, shall cause
Landlord's engineers to prepare and deliver to Tenant mechanical, electrical,
structural and plumbing plans and specifications ("MEPS Plans") which are
consistent with and implement and carry out the Architectural Plans, including
all work necessary to connect any of Tenant's special facilities to the Building
systems.
(e) Within twenty (20) days after the delivery of the MEPS
Plans, Tenant shall approve or disapprove the MEPS Plans in accordance with
Section 2.5 hereof.
(f) Landlord and Tenant shall use their best efforts to endeavor
to have the Architectural Plans and MEPS Plans completed in accordance with the
following time schedule:
(1) February 1, 1985 - completion of Architectural Plans to
the extent of partitioning layout, doors, electrical and telephone outlets,
plumbing, location of special items that will affect the heating, ventilating
and air conditioning system, designation of areas to be carpeted or tiled and
changes to concrete slabs, and submission thereof to Landlord's engineers for
preparation of MEPS Plans.
(2) March 1, 1985 - completion of entire Architectural
Plans and MEPS Plans, other than decorative or millwork elements.
(g) On or before the later of April 1, 1985 and the date which
is sixty (60) days after the approval of the Architectural Plans and the MEPS
Plans, Landlord shall deliver to Tenant a guaranteed price for the performance
of the Leasehold Improvements (the "Guaranteed Price"), which Guaranteed Price
shall (1) separately specify the cost of each trade for labor and materials, the
unit cost of each trade for labor and materials and the unit cost of all
fixtures, equipment and materials in the form requested by Tenant, (2) have
annexed thereto a schedule of prices for alternate work, materials, equipment,
fixtures or installations requested by Tenant, (3) have annexed thereto a
schedule of unit prices requested by Tenant, (4) have annexed thereto a schedule
of unit prices for all items of Building Standard, and (5) separately state the
cost of the Tenant Work portion and the Building Standard portion of the
Guaranteed Price, which Building Standard portion shall not be less than an
amount (the "Building Standard Minimum Amount") equal to the product of Eleven
Dollars ($11.00) multiplied by the Rentable Area of the Premises. The unit
prices in the Guaranteed Price need not have an allocation between labor and
materials. For purposes hereof, the amount that is equal to the greater of the
Building Standard portion of the Guaranteed Price determined as aforesaid and
the Building Standard Minimum Amount is hereinafter referred to as the Building
Standard Cash Allowance.
B-3
(h) Within thirty (30) days after Tenant receives the Guaranteed
Price, Tenant shall deliver to Landlord either written acceptance of such
Guaranteed Price or written notice of Tenant's election to have Tenant's
Contractor perform the Leasehold Improvement work pursuant to the provisions of
Article 5 hereof.
SECTION 2.3. The Term "Guaranteed Price" means
(a) the direct and actual costs necessarily to be incurred by
Landlord for the Leasehold Improvements and payable by Landlord, and shall
include only the following costs:
(i) wages payable for labor in the direct employ of
Landlord's Contractor in the performance of "general conditions"
work applicable to the Leasehold Improvements provided that (A)
such wages are pursuant to applicable collective bargaining
agreements or under a salary or wage schedule agreed upon by
Tenant and Landlord's Contractor, and (B) the number of employees
constituting such labor shall not exceed the number which is
normal and usual for the scope of the work constituting the
Leasehold Improvements;
(ii) an allowance for the costs of contributions,
assessments or taxes for such items as unemployment compensation
and social security on amounts payable to employees of Landlord's
Contractor which are included under clause (A) of paragraph (i)
above equal to twenty-six percent (26%) of such amounts;
(iii) costs of all materials, supplies and equipment to
be incorporated in the Leasehold Improvements, including costs of
transportation thereof;
(iv) payments to be made by Landlord's Contractor to
subcontractors for Leasehold Improvement work performed pursuant
to subcontracts executed by Landlord's Contractor in accordance
with the provisions of Section 2.8;
(v) sales, use or similar taxes related to the
Leasehold Improvements (including such taxes on materials
supplied by subcontractors) to be imposed by any governmental
authority, which Landlord shall insure are paid as they become
due; and
(vi) rental of equipment, except that rental of
contractor-owned
B-4
equipment shall be at 75% of the current American Equipment
Distributors rates;
(vii) allocable portion of bond and insurance premiums;
(viii)costs of necessary printing of all shop drawings and
other reproduction approved by Tenant, PLUS
(b) An amount equal to five percent (5%) of the amount of the
Tenant Work portion of the Guaranteed Price for Landlord's Contractor's overhead
and profit allocable to the Tenant Work, with no ▇▇▇▇-up for any overhead or
profit to Landlord.
SECTION 2.4. The Guaranteed Price shall not include any of the
following items:
(a) salaries or other compensation of the Landlord's or
Landlord's Contractor's officers or executives or other employees or personnel
except as specifically provided in Section 2.3;
(b) any expenses of or for Landlord's or Landlord's Contractor's
principal and branch office [other than the field office expenses referred to in
Section 2.3(a) (i) and (ii)];
(c) any capital expenses of the Landlord or Landlord's
Contractor in connection with the Leasehold Improvements, including without
limitation, interest on any capital employed for the Leasehold Improvements;
(d) overhead, profit and general expenses of any kind except
those that are expressly set forth in Section 2.3; or
(e) any fees of any kind to Landlord.
SECTION 2.5. With respect to the Architectural Plans and the MEPS
Plans (or any revision thereof), Tenant shall notify Landlord in writing within
twenty (20) days after Tenant's receipt of such Plans as to whether Tenant
approves or disapproves the same. If Tenant disapproves any part of such Plans,
Tenant shall specify with particularity (A) the reason therefore and (B) the
modifications required by Tenant thereto. Landlord shall cause Landlord's
Architect or engineer to modify the Plans accordingly and resubmit the same for
Tenant's approval within fifteen (15) days after Landlord's receipt of Tenant's
disapproval. If Tenant fails to approve or disapprove such Plans in the manner
and within the period specified in this Section 2.5. Tenant shall be deemed to
have approved such Plans.
B-5
SECTION 2.6. Tenant may request revisions ("Revisions") to the
Architectural Plans or MEPS Plans, in which event Landlord shall notify Tenant
in writing within ten (10) days after receipt of such Revisions as to whether
Landlord approves or disapproves such Revisions. Landlord shall have the right
to disapprove any Revisions only if the same would either (i) adversely affect
the structural, plumbing, heating, air conditioning or ventilating systems of
the Building or the functioning thereof, (ii) fail to comply with applicable
Legal Requirements, (iii) adversely affect the safety of the Building, or (iv)
affect the exterior appearance of the Building. If Landlord disapproves any
Revisions, Landlord shall specify with particularity (A) the reason therefor and
(B) the modifications required by Landlord thereto. After the Architectural
Plans and MEPS Plans have been approved pursuant to Section 2.2, the fees of
Landlord's Architect and engineers for any Revisions thereto requested by Tenant
shall be paid by Tenant.
SECTION 2.7. For purposes of determining compliance with the
schedule set forth in Section 2.2, 2.5 and 2.6 hereof, a Plan or approval shall
be deemed submitted when it has been delivered in accordance with this Exhibit
B. In the event Landlord and Tenant disagree as to whether any submission or
disapproval is or is not in accordance with Section 2.2, 2.5 or 2.6 as the case
may be, either party may request that the dispute be resolved by arbitration in
accordance with Article 21 of the Lease. In the event the arbitrator determines
that a Plan should have been approved by Landlord or Tenant, as the case may be,
such Plan shall be deemed to have been submitted as of the day of its actual
submission. In the event the arbitrator determines that a Plan should not have
been approved, such Plan shall not be deemed submitted until a revised Plan is
submitted that is consistent with the provisions of this Exhibit B.
SECTION 2.8. (a)Within fifteen (15) business days after the approval
of the Architectural Plans, Landlord's Contractor shall submit to Tenant for its
approval a list of at least three (3) bona fide independent bidders for each
trade to be employed in connection with the performance of the Leasehold
Improvements. Any such bidders may be deleted by Tenant by notice to Landlord's
Contractor given within ten (10) days after such submission, and additional
bidders may be added to the list by Tenant by notice to Landlord's Contractor
given within said ten (10) day period, which additional bidders shall be subject
to Landlord's Contractor's approval, which approval shall not be unreasonably
withheld or delayed. If Landlord's Contractor does not disapprove any such
additional bidder within ten (10) days after Tenant's submission of such bidder,
such bidder shall be deemed approved.
(b) Landlord's Contractor shall solicit bids from such bidders
for the applicable trade within five (5) business days after (i) Landlord and
Tenant approve the bid list for such trade, and (ii) those portions of the
Architectural Plans and the MEPS Plans, and any specifications thereto,
applicable to such trade have been approved by Landlord and Tenant. Landlord's
Contractor shall prepare the invitations to bid, which invitations shall specify
that (i) the bids shall indicate a guaranteed date of delivery and installation;
(ii) all bids must be received by Landlord's Contractor within fifteen (15)
business days after the receipt thereof by each bidder of an invitation to bid;
(iii) the bids shall contain such reasonable and customary
B-6
guarantees and warranties requested by Tenant, (iv) each such bid shall
separately specify the cost for labor and materials and the unit cost of all
fixtures, equipment and materials in the form requested by Tenant, (v) each bid
shall have annexed thereto a schedule of prices for alternate work, materials,
equipment, fixtures or installations requested by Tenant, (vi) each bid shall
have annexed thereto a schedule of unit prices requested by Tenant, and (vii)
each bid shall have annexed thereto a schedule of unit prices for all items of
Building Standard to be included therein. Notwithstanding the foregoing, the
information (the "Detailed Information") referred to in clauses (iv), (v), (vi),
and (vii) of this Section 2.8(b) need not be submitted with the original bid
provided that the Detailed Information is obtained from the three lowest bidders
within ten (10) business days after the bids are received by Landlord and the
Detailed Information is delivered to Tenant no later than the date on which the
Guaranteed Price is submitted by Landlord to Tenant.
(c) Landlord's Contractor shall, promptly after receipt thereof,
deliver to Tenant copies of all bids submitted by subcontractors pursuant to
Section 2.8(b).
(d) The Guaranteed Price shall be based upon the bid of each of
the qualified bidders who submits the lowest bid for such trade's portion of the
Tenant Work pursuant to this Section 2.8. Notwithstanding the foregoing, if
another qualified bidder (the "Overall Low Bidder") has a lower overall bid for
work relating to both the Building and for any Building Standard portion of the
Tenant Work, Landlord may use such subcontractor to perform such work but in
such event the Guaranteed Price shall be based upon (i) the average of the three
lowest bidders for such portion of the Tenant Work if the bid of the highest of
such three bidders is not more than one hundred ten percent (110%) of the bid of
the lowest bidder or (ii) the average of the bid obtained from the lowest bidder
for such portion of the Tenant Work and the second lowest bidder for such
portion of the Tenant Work if the bid of the third lowest bidder is more than
one hundred ten percent (110%) of the bid of the lowest bidder.
(e) Landlord's Contractor shall assist Tenant in reviewing bids.
Upon request by Tenant, Landlord's Contractor shall arrange for meetings with
any party submitting a bid for the purpose of negotiating the price thereof or
other matters contained therein. Tenant and Tenant's consultants shall have the
right to participate in such negotiations with Landlord's Contractor.
Landlord's Contractor shall reasonably cooperate with Tenant in negotiating
prices and other matters contained in such bids.
(f) The cost of any trade to be included in the Guaranteed Price
shall be the amount of the bid designated by Tenant or Landlord pursuant to
Section 2.8(d).
(g) If less than two (2) of the bidders designated as provided
in Section 2.8(a) submit bids within the fifteen (15) business day period
specified in Section 2.8(b), Tenant may require that Landlord's Contractor
solicit additional bids in accordance with Section 2.8(a) and (b).
B-7
ARTICLE 3
BUILDING STANDARD WORK; BUILDING SHELL WORK
SECTION 3.1. As part of Landlord's contribution to the Leasehold
Improvements, Landlord shall pay for the Building Standard portion of the
Guaranteed Price.
SECTION 3.2. Tenant shall be entitled to credit against the
Guaranteed Price for the components of Building Standard which are not
installed. Such credit shall be computed based upon the unit prices for
Building Standard submitted to Tenant with the Guaranteed Price.
SECTION 3.3. In addition to the Building Standard items referred to
in Section 3.1, Landlord shall at its sole cost and expense furnish, install and
complete the Building Shell Work.
ARTICLE 4
TENANT WORK; LANDLORD'S CASH ALLOWANCE
SECTION 4.1. In addition to Landlord's contributions described in
Article 3, Landlord shall pay to or on behalf of Tenant an amount ("Landlord's
Cash Allowance") equal to the sum of (i) Two Hundred Thousand Dollars ($200,000)
plus (ii) the product of Three Dollars ($3.00) multiplied by the Rentable Area
of the Premises in excess of ten thousand (10,000) square feet. In
consideration of the Lease and without regard to whether expenditures for Tenant
Work actually exceed Landlord's Cash Allowance (subject to the limitation set
forth in Section 4.4), Landlord's Cash Allowance shall be paid to or on behalf
of Tenant as set forth below.
SECTION 4.2. On or before the tenth (10th) day of each month,
Landlord shall submit to Tenant a certified statement setting forth the portion
of the Guaranteed Price due and payable to Landlord's Contractor on account of
Tenant Work performed during the preceding month, which statement shall include,
among other things, (A) a detailed description of the portion of the Tenant Work
performed during the preceding calendar month, (B) a copy of Landlord's
Contractor's requisition for such preceding calendar month, and (C) a
calculation of any amounts then due to Landlord with respect to such Tenant
Work, in accordance with Section 4.3.
SECTION 4.3. If the cost of Tenant Work exceeds Landlord's Cash
Allowance, such excess cost shall be paid by Tenant after Landlord's Cash
Allowance has been paid in full to Landlord's Contractor and within ten (10)
days after presentation of the information set forth in Section 4.2.
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SECTION 4.4. If the cost of Tenant Work is less than Landlord's Cash
Allowance, then, on the Commencement Date, Landlord shall pay to Tenant the
excess of (i) Landlord's Cash Allowance over (ii) the cost of Tenant Work;
provided, however, that such payment by Landlord to Tenant shall not exceed the
sum of the cost of Tenant's Finish Work incurred by Tenant plus Two Dollars
($2.00) multiplied by the Rentable Area of the Premises. If Landlord fails to
make any such payment to Tenant, Tenant shall have the right to deduct the same
from the installments of Rent next becoming due.
SECTION 4.5. Within sixty (60) days after the Commencement Date,
Tenant shall submit a list to Landlord itemizing the components of Leasehold
Improvements which were paid by Tenant from Landlord's Cash Allowance and all
such components of Leasehold Improvements shall remain the property of Landlord
("Landlord's Property"). All components of Leasehold Improvements other than
Landlord's Property shall be and remain Tenant's property during the Term and
shall become Landlord's Property at the end of the Term, except that Tenant's
furniture, furnishings, personal property and movable trade fixtures shall be
removed or otherwise disposed of at the termination of the Lease in accordance
with Article 15 of the Lease.
SECTION 4.6. For purposes of this Exhibit B, the Rentable Area of
the Premises is estimated to be 65,722 square feet. The amount of any payments
payable to Tenant pursuant to this Article 4 shall be adjusted upon the
determination of the Rentable Area of the Premises pursuant to Section 1.2 of
the Lease. If the payments made to or on behalf of Tenant on the basis of the
estimated Rentable Area of the Premises exceed the amount which Tenant is
entitled to based on the actual Rentable Area of the Premises, Tenant shall pay
Landlord such excess promptly after such determination. If the payments made to
or on behalf of Tenant on the basis of the estimated Rentable Area of the
Premises are less than the amount which Tenant is entitled to based upon the
actual square feet of Rentable Area in the Premises, Landlord shall pay Tenant
such shortfall promptly after such determination.
ARTICLE 5
CONSTRUCTION OF LEASEHOLD IMPROVEMENTS BY TENANT
SECTION 5.1. Notwithstanding any other provisions of this Exhibit B
or the Lease to the contrary, Tenant shall have the right, exercisable by Tenant
giving notice in writing to Landlord within the period which is thirty (30) days
after the date on which Tenant receives the Guaranteed Price pursuant to the
provisions of Section 2.3(f) hereof [including the Detailed Information referred
to in Section 2.8(b)], to elect to have Tenant's Contractor install the
Leasehold Improvements subject to the terms and conditions hereinafter set
forth.
B-9
SECTION 5.2. In the event that Tenant elects to have Tenant's
Contractor install the Leasehold Improvements hereunder, the Lease and this
Exhibit B shall be amended as follows:
5.2.1. Landlord shall be responsible for the completion of the
Building Shell Work but not the Leasehold Improvements. The Building Shell Work
shall be deemed to have been completed on the date (the "Building Shell Work
Completion Date") when all of the following shall have occurred:
(a) All of the work required pursuant to Section 1.2 of this
Exhibit B [other than Deferral Items (hereafter defined in this Section 5.2.1)]
shall have been substantially completed (as such term is defined in subsection
2.2.3 of the Lease); provided that the Premises are accessible and that the
non-completion of any work to be done does not materially interfere with the
work to be done by Tenant's Contractor hereunder;
(b) Landlord shall have delivered to Tenant the certificate of
Landlord's Architect certifying the matters set forth in subparagraph (a) of
this Section 5.2.1.;
(c) Landlord shall have given Tenant at least thirty (30) days
notice of the date on which Landlord anticipates that the Building Shell Work
Completion Date will occur.
For purposes hereof, Deferral Items shall mean the work set forth in clause (e)
of Section 1.2 of this Exhibit B and the work set forth in clause (i) of Section
1.2 of this Exhibit B to the extent that the work set forth in clause (i)
relates to floors not leased to Tenant.
5.2.2. (a) Landlord shall pay to or for the benefit of
Tenant, as hereinafter provided, a cash allowance (the "Leasehold Improvements
Allowance") equal to the sum of the Building Standard Cash Allowance plus
Landlord's Cash Allowance. Landlord shall pay the Leasehold Improvements
Allowance to Tenant's Contractor periodically as written requests for payment
(the "Payment Request") are submitted to Landlord by Tenant based upon copies of
Tenant's Contractor's requisition for the period to which any such Payment
Request relates, which Payment Request shall include a detailed description of
the portion of the Tenant Work performed during the period to which such Payment
Request relates. Landlord shall pay the amount so requested by Tenant to
Tenant's Contractor within fifteen (15) days after a Payment Request is
submitted to Landlord. In the event that Landlord fails to comply with the time
period set forth herein for payment of a Payment Request, Landlord shall be
obligated to pay to Tenant interest on such late payment at the rate of two
percent (2%) above the prime rate charged by Citibank, New York City computed
from the expiration of ten (10) days after the date on which the applicable
Payment Request was submitted to Landlord to the date on which such delinquent
payment is paid by Landlord to Tenant.
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(b) In the event that Tenant shall not have utilized the entire
Leasehold Improvements Allowance for the cost of the Leasehold Improvements or
Tenant's Finish Work in accordance with the provisions of subparagraph (a) of
this Section 5.2.2, Landlord shall pay the balance of the Leasehold Improvements
Allowance, but not exceeding an amount equal to Two Dollars ($2.00) multiplied
by the Rentable Area of the Premises, in cash to Tenant on the Commencement
Date.
5.2.3. For purposes of establishing the Commencement Date and
the Completion Date pursuant to Article 2 of the Lease, Landlord's obligations
pursuant to subsection 2.2.1 of the Lease shall not include any of the Leasehold
Improvements.
5.2.4. The Commencement Date for purposes of the Lease shall be
the earlier of (a) the later of (i) the date which is four (4) months after the
Building Shell Work Completion Date, (ii) the expiration of five (5) days after
the Completion Date, and (iii) the date on which the Deferral Items (defined in
Section 5.2.1 of this Exhibit B) have been completed, or (b) the date of
Tenant's occupancy of the Premises for the regular conduct of its business
operations. Landlord shall provide continuous access to the Premises to Tenant,
Tenant's Contractor and its subcontractors at all times after the Building Shell
Work Completion Date in accordance with the provisions of Section 6.2 of the
Lease and all references in Section 6.2 of the Lease to Tenant's Finish Work
shall include the Leasehold Improvements.
5.2.5. The first sentence of Section 2.2.1(k) of the Lease
shall be modified in its entirety to read as follows: "Landlord shall have
given Tenant at least thirty (30) days prior written notice of the date on which
Landlord anticipates that the Building Shell Work Completion Date (defined in
Exhibit B) will occur; provided that if the Building Shell Work Completion Date
does not occur as anticipated, the Building Shell Work Completion Date shall not
occur before the date which is ten (10) days after Landlord's notice to Tenant
notifying Tenant of the revised Building Shell Completion Date."
5.2.6. Tenant's Contractor shall carry worker's compensation
insurance in statutory amounts (unless such contractor is a self insurer and has
adequate assets to provide such self insurance) and comprehensive general
liability insurance in amounts required by Section 12.2. Certificates of such
insurance shall be delivered to Landlord prior to commencement of work in the
Premises by Tenant's Contractor.
ARTICLE 6
TENANT DELAYS
SECTION 6.1. In the event that Tenant does not comply with any of the
time requirements imposed upon Tenant pursuant to Article 2 of this Exhibit B
and by reason thereof the bidding and Guaranteed Price for the Tenant Work is
obtained later than the bidding and
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Guaranteed Price for the Building, (a) the fee payable to Landlord's Contractor
pursuant to Section 2.3(b) shall be increased from five percent (5%) to such
higher amount [not greater than ten percent (10%)] that may be charged by
Landlord's Contractor, and (b) Landlord shall have the right to obtain unit
prices for Tenant Work at the time Landlord obtains the bidding and Guaranteed
Price for the Building, in which event such unit prices shall be included in the
Guaranteed Price for the Tenant Work unless Tenant subsequently obtains a lower
price in bidding its Tenant Work.
SECTION 6.2. In the event that Tenant requests any change in the
Tenant Work after the Guaranteed Price has been approved by Tenant, the fee
payable to Landlord's Contractor with respect to such change order work pursuant
to Section 2.3(b) shall be increased from five percent (5%) to such higher
amount [not greater than fifteen and one-half percent (15 1/2%)] that may be
charged by Landlord's Contractor on the net increase in cost arising from such
change order (treating related items of work or substitutions and additions as a
single change order); provided that in the event of any increase in such fee the
cost of general conditions work shall be paid by Landlord's Contractor out of
such fee and shall not be included in the cost of the work pursuant to Section
2.3.
SECTION 6.3. In the event that the Completion Date is delayed by
reason of any delay by Tenant in complying with any of the time requirements
imposed upon Tenant pursuant to Article 2 of this Exhibit B, or in the event
that Tenant requests any change in the Tenant Work after the Guaranteed Price
has been approved by Tenant which results in the Completion Date being delayed,
then Tenant shall pay to Landlord rent in the amount of one three hundred
sixty-fifth (1/365) of the Base Rent for each day that the Completion Date is
delayed by reason of such delay or change order by Tenant.
B-12
EXHIBIT C
DECLARATION BY LANDLORD AND TENANT AS TO COMMENCEMENT DATE
THIS DECLARATION is made and entered into this day of
, 198 , by and between COMMUNITY MOTORS PROPERTY ASSOCIATES LIMITED PARTNERSHIP
(the "Landlord") and FEDERAL DATA CORPORATION (the "Tenant").
WITNESSETH
WHEREAS, by that certain Agreement of Lease made and entered into the
day of December, 1984 (the "Lease"), Landlord leased to Tenant that certain
Rentable Area described therein in the Building known as ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ upon certain terms and conditions more fully set forth
in the Lease.
AND WHEREAS, Section 2.3 of the Lease provides that upon determination of
the Commencement Date in accordance with the provisions of Article 2 of the
Lease, Landlord and Tenant shall execute a written instrument confirming the
Commencement Date and the Expiration Date of the Term of the Lease.
NOW, THEREFORE, in consideration of the premises, Landlord and Tenant
hereby confirm and agree as follows:
1. The Commencement Date is .
2. The Expiration Date is .
IN WITNESS WHEREOF, Landlord and Tenant have executed this Declaration by
Landlord and Tenant on the day and year first above written.
WITNESS: LANDLORD
COMMUNITY MOTORS PROPERTY
ASSOCIATES LIMITED PARTNERSHIP
By:
-------------------------- ----------------------------
ATTEST: TENANT
FEDERAL DATA CORPORATION
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By:
-------------------------- ----------------------------
B-14
EXHIBIT D
PLANS AND SPECIFICATIONS
The following is a list of the plans and specifications comprising Exhibit D as
prepared by the firm of ▇▇▇▇▇, Black, Jeffries, ▇▇▇▇▇▇▇▇▇ and Dove. These
documents are subject to the changes and clarifications enumerated in Exhibit
D1.
PLANS
Plan Name Revision Date Drawing Number
--------- ------------- --------------
First Floor Plan 11/12/84 1
Second Floor Plan 10/16/84 2
Third Floor Plan 10/16/84 3
Fourth Floor Plan 10/19/84 4
Fifth Floor Plan 10/19/84 5
Sixth Floor Plan 10/19/84 6
Seventh Floor Plan 10/19/84 7
Eighth Floor Plan 10/19/84 8
Ninth Floor Plan 10/19/84 9
Tenth Floor Plan 10/16/84 10
Eleventh Floor Plan 10/16/84 11
Twelfth Floor Plan 10/16/84 12
Garage Floor Plan P-1 11/7/84 13
Garage Floor Plan P-2 11/7/84 14
Garage Floor Plan P-3 11/7/84 15
Garage Floor Plan P-4 11/7/84 16
East & West Elevations 11/12/84 17
South Elevation 11/12/84 18
North Elevation 11/12/84 19
Building Section 11/18/84 20
SPECIFICATIONS
Outline Specifications for One Bethesda Center, ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, as of
November 12, 1984.
B-15
EXHIBIT D1
MODIFICATIONS TO PLANS AND SPECIFICATIONS
The following is a list of the changes and clarifications to the plans
and specifications in Exhibit D. Unless otherwise indicated, all items refer
specifically to Tenant's premises and the common areas included on Tenant's
floors.
1. The northwestern most passenger elevator shall have access both to
the elevator lobby and to the service corridor behind the elevator shaft
provided it is deemed feasible in the sole opinion of ▇▇▇▇▇, Block, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ & ▇▇▇▇.
2. Elevators shall service all building levels, including all floors
in the parking garage.
3. Samples of the following materials and finishes shall be submitted
for Tenant's information and approval. If Tenant does not disapprove any item
within seventy-two (72) hours after receipt of such item by Tenant, Tenant shall
be deemed to have approved such item. Tenant shall not have the right to
require any item that is not available or that would delay the completion of the
Building or the Premises. Where appropriate, manufacturer's descriptive
material may be substituted for samples.
a. Metal finishes of door frames, hardware and accessories;
b. Enamel color on elevator doors;
c. Building standard carpet in both 28 oz. and 40 oz. weights;
d. Vinyl base coving;
e. Ceiling tiles;
f. Exit signage and building standard signage;
g. Fire extinguisher cabinets and installation specifications;
h. Accessories, such as ash urns and trash receptacles;
i. Water coolers and installation specifications (which item
shall be subject only to Tenant's review and shall not be subject to Tenant's
approval);
B-16
j. Parahex lenses for standard light fixtures;
k. Vinyl wall covering in elevator lobbies and toilet rooms;
l. Resilient floorings and vinyl asbestos tile.
4. Landlord shall notify Tenant as to the color and degree of tint of
glazing when such information is available.
5. Alcoves and corridors shall have solid core wood stained grade
doors.
6. Ceramic tile in toilet rooms shall be 2" x 2" on both floors and
walls.
7. Electrical, telephone and mechanical closets and toilet rooms
shall have metal or solid core wood stained grade doors.
8. Colors of all common area elements including toilet rooms and fire
stairs on Tenant's floors shall be coordinated with Tenant's design treatments.
9. Suite entry doors shall be rift cut oak.
10. Horizontal blinds shall be manufactured by Levelor.
11. Telephone closets shall have vinyl asbestos tile floors as
required by Tenant's telephone service.
12. Adequate riser capacity shall be available to accommodate cable
and communications system requirements between Tenant's floors.
B-17
EXHIBIT E
HOLIDAYS
New Year's Day
President's Day
Memorial Day
Labor Day
Columbus Day
Thanksgiving Day
Christmas Day
The above-listed holidays shall be observed in accordance with their observation
by the federal government.
B-18
EXHIBIT F
SPECIFICATIONS
BUILDING JANITORIAL MAINTENANCE
SCOPE - The contractor shall furnish all labor, supplies, materials, equipment,
supervision and perform satisfactorily, the services at the frequencies and
during the times specified herein. The services shall include all functions
normally considered a part of workmanlike, satisfactory janitorial work.
I. ROOM CLEANING
a. DAILY SERVICES:
1. The contents of ashtrays and smoking stands shall be emptied into
metal containers and the ashtrays wiped clean with a damp cloth.
Wastebaskets shall be emptied. Ashtrays, smoking stands and
wastepaper baskets shall be returned to original placement.
Wastepaper and trash shall be removed to main disposal area. The
horizontal surfaces of all furniture within approximately 70
inches of the floor shall be dusted with a treated dust cloth and
the rug area vacuumed and floor area swept with a treated sweep
mop daily. Glass tops shall be cleaned with an untreated cloth.
2. The floor area shall be spot swept, damp mopped, or vacuumed to
remove obvious surface dirt from traffic areas and from under
furniture. Exposed floor areas in partially carpeted offices are
to be swept in accordance with the above requirements. Obvious
surface dirt referred to is any visible foreign matter found on
the floor, rug, or carpet surface and includes but is not limited
to paper clips, staples, metal fasteners, pencil sharpenings,
erasures, paper pieces, fragments, clippings, and punchings,
ashes, mud, sand, rubber bands, cigarette butts and so on.
b. MONTHLY SERVICES:
1. Vertical surfaces and under surfaces (knee ▇▇▇▇▇, chair rungs,
table legs, etc.) shall be thoroughly dusted and all glass in
doors, partitions, pictures and bookcases shall be damp-wiped.
2. Wall spotting - All wall surfaces within approximately 70 inches
of the floor shall be spot cleaned.
B-19
B-20
II. Computer Rooms
a. DAILY:
1. Empty trash receptacles
2. Sweep or vacuum floors
3. Empty and clean ashtrays
4. Dust the horizontal surfaces of all furniture
b. WEEKLY:
1. Spot clean wall surfaces within 70 inches of the floor
2. Dust vertical surfaces and under surfaces
3. Clean glass in doors, partitions, etc.
4. Damp mop and buff floor, except Tape Vault, which is damp mopped
only. Reapply floor finish as necessary to maintain uniform
"high gloss" shine.
III. FLOOR MAINTENANCE:
a. DAILY:
RECEPTION ROOM AND KITCHENS:
Resilient floors shall be swept and, if necessary to remove dirt, spot
mopped.
b. MONTHLY:
1. Hard floor shall be swept, wet mopped or scrubbed.
c. QUARTERLY:
Resilient floors shall be swept initially, spray buffed and swept
after spray buffing. Floors that are heavily scuffed should be
stripped and refinished.
IV. HIGH CLEANING:
Once a year services: All surfaces and objects in the building
approximately 70 inches or more from the floor shall be cleaned by dusting
and/or vacuuming. This includes the wall and ceiling area adjacent to
ventilating and air conditioning outlets.
V. CARPET MAINTENANCE:
B-21
DAILY:
TENANT SPACE - carpet - vacuum all areas; spot clean carpets as requested
or required.
B-22
EXHIBIT G
RULES AND REGULATIONS
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The following rules and regulations have been formulated for the safety and
well-being of all the tenants of the building. Adherence to these rules and
regulations ensures that each and every tenant will enjoy a safe and unannoyed
occupancy in the Building. Any violation of these rules and regulations by any
tenant which continues after notice from Landlord shall be sufficient cause for
termination, at the option of Landlord, of the tenant's lease.
Subject to the provisions of Article 16 of the Lease, Landlord shall have
the continuing right to amend or eliminate any of these rules and regulations,
and also to adopt additional reasonable rules and regulations of like force and
effect. Any change of whatsoever nature shall be effective five (5) days after
delivery of written notice thereof to the Premises.
Landlord may, upon request by any tenant, waive the compliance by such
tenant of any of the following rules and regulations, provided that (a) no
waiver shall be effective unless in writing and signed by Landlord or Landlord's
authorized agent, (b) any such waiver shall not relieve the tenant from the
obligation to comply with such rule or regulation in the future unless expressly
consented to by Landlord, and (c) no waiver of a rule or regulation granted to
any tenant shall relieve any other tenant from the obligation of complying with
the rule or regulation unless such other tenant has received a similar waiver in
writing from Landlord.
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls or other parts of the Building not occupied by any
tenant (the "Common Areas") shall not be obstructed or encumbered by any tenant
or used for any purpose other than ingress and egress to and from the tenant's
premises. Landlord shall have the right to control and operate the Common
Areas, and the facilities furnished for the common use of the tenants, in such
manner as Landlord deems best for the benefit of the tenants generally. No
tenant shall permit the visit of its premises of persons in such numbers or
under such conditions as to interfere with the use and enjoyment by other
tenants of the Common Areas.
2. No awnings or other projections shall be attached to the outside walls
of the Building without the prior written consent of the Landlord. No drapes,
blinds, shades or screens shall be attached or hung in, or used in connection
with, any window or door of a tenant's premises, without the prior written
consent of Landlord. Such awnings, projections, curtains, blinds,
B-23
screens or other fixtures must be of a quality, type, design and color, and
attached in the manner approved by Landlord.
3. No sign, advertisement, notice or other lettering shall be exhibited,
inscribed, painted or affixed by any tenant on any part of the outside or inside
of the tenant's premises of the Building without the prior written consent of
the Landlord. In the event of the violation of the foregoing by any tenant,
Landlord may remove same without any liability, and may charge the expense
incurred by such removal to the tenant or tenants violating this rule. All
interior signs on the doors and directory tablet shall be inscribed, painted or
affixed for each tenant by Landlord at the expense of such tenant, and shall be
of a size, color and style acceptable to Landlord, provided, however, that
notwithstanding the foregoing, Landlord shall provide Tenant, at Landlord's sole
cost and expense, with one listing in the Building directory tablet for each
floor of the Building occupied in whole or in part by Tenant.
4. No show cases or other articles shall be put in front of or affixed to
any part of the exterior of the Building, nor placed in the Common Areas without
the prior consent of Landlord.
5. The water and washclosets and other plumbing fixtures shall not be used
for any purposes other than those for which they were constructed, and no
sweepings, rubbish, rags or other substances shall be thrown herein. All
damages resulting from any misuse of the fixtures shall be borne by the tenant
who, or whose employees, agents, visitors or licensees, shall have caused the
same.
6. There shall be no marking, painting, drilling into or other form of
defacing or damage of any part of a tenant's premises or the Building. No
boring, cutting or stringing of wires shall be permitted. No tenant shall
construct, maintain, use or operate within its premises or elsewhere within or
on the outside of the Building, any electrical device, wiring or apparatus in
connection with a loud speaker system or other sound system. Landlord will,
however, permit a tenant to install Muzak or another internal music system
within the tenant's premises if the music system cannot be heard outside of the
premises.
7. No tenant shall make, or permit to be made, any disturbing noises or
disturb or interfere with occupants of the Building or neighboring buildings or
premises or those having business with them, whether by the use of any musical
instrument, radio, tape recorder, whistling, singing or any other way. No
tenant shall throw anything out of the doors or windows or down the corridors or
stairs.
8. No bicycles, vehicles or animals, birds or pets of any kind shall be
brought into or kept in or about a tenant's premises. No cooking shall be done
or permitted by any tenant on its premises, without Landlord's prior approval
which shall not be unreasonably withheld. Notwithstanding the foregoing, Tenant
may install and operate for the convenience of its
B-24
employees, a lounge or coffee room with stove, sink and refrigerator. No tenant
shall cause or permit any unusual or objectionable odors to originate from its
premises.
9. No space in or about the Building shall be used for the manufacture,
storage or sale at auction of merchandise, goods or property of any kind.
10. No inflammable, combustible or explosive fluid, chemical or substance
shall be brought or kept upon a tenant's premises.
11. No additional locks or bolts of any kind shall be placed upon any of
the doors or windows by any tenant, nor shall any changes be made in existing
locks or the mechanism thereof. The doors leading to the corridors or main
halls shall be kept closed during business hours except as they may be used for
ingress and egress. Each tenant shall, upon the termination of its tenancy,
return to Landlord all keys used in connection with its premises, including any
keys to the premises, to rooms and offices within the premises, to storage rooms
and closets, to cabinets and other built-in furniture, and to toilet rooms
whether or not such keys were furnished by Landlord or procured by tenant, and
in the event of the loss of any such keys, such tenant shall pay to Landlord the
cost of replacing the locks. On termination of a tenant's lease, the tenant
shall disclose to landlord the combination of all locks for safes, safe cabinets
and vault doors, if any, remaining in the premises.
12. All removals, or the carrying in or out of any safes, freight,
furniture or bulky matter of any description, must take place in such manner and
during such hours as Landlord may reasonably require. Landlord reserves the
right to inspect all freight to be brought into the Building and to exclude from
the Building all freight which violates any of these Rules and Regulations or
the Lease.
13. Any person employed by any tenant to do janitorial work within the
tenant's premises must obtain Landlord's consent prior to commencing such work,
and such person shall, while in the Building and outside of said premises,
comply with all instructions issued by the superintendent of the Building. No
tenant shall engage or pay any employees on the tenant's premises, except those
actually working for such tenant on said premises.
14. No tenant shall purchase spring water, ice, coffee, soft drinks,
towels, or other like merchandise or service from any company or person whose
repeated violations of the Building regulations have caused, in Landlord's
opinion, a hazard or nuisance to the Building and/or its occupants.
15. Landlord shall have the right to prohibit any advertising by any
tenant which relates to the premises or the Building in which the premises are
situated.
B-25
16. Landlord reserves the right to exclude from the Building at all times
any person who is not known or does not properly identify himself to the
Building management or its agents. Landlord may at its option require all
persons admitted to or leaving the Building to register. Each tenant shall be
responsible for all persons for whom it authorizes entry into the Building, and
shall be liable to Landlord for all acts of such persons. Landlord shall also
have the right to install an electronic security system for the Building
requiring the use of identification cards, passwords, confidential codes and the
like as a prerequisite to admission of any person into the Building, and tenant
agrees to faithfully abide by the rule of any such security system. If
identification cards are used in any such system, Tenant shall be issued, at no
expense to Tenant, one (1) card for each two hundred fifty (250) square feet of
Rentable Area of the Premises. Each additional or replacement card requested
shall be issued only upon payment of a service fee of Ten Dollars ($10.00) per
card.
17. Each tenant, before closing and leaving its premises at any time,
shall see that all lights, electrical appliances and mechanical equipment are
turned off.
18. The requirements of tenants will be attended to only upon application
at the office of the Building. Building employees shall not perform any work or
do anything outside of their regular duties, unless under special instruction
from the management of the Building.
19. Canvassing, soliciting and peddling in the Building is prohibited and
each tenant shall cooperate to prevent the same, including notifying Landlord
when and if such activity occurs.
20. No water cooler, plumbing or electrical fixture shall be installed by
any tenant without Landlord's prior written consent.
21. There shall not be used in any space, or in the public halls of the
Building, either by any tenant or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards.
22. Mats, trash or other objects shall not be placed in the public
corridors.
23. Drapes installed by Landlord for the use of any tenant or drapes
installed by tenant which are visible from the exterior of the Building must be
cleaned by such tenant at least once a year, without notice, at such tenant's
own expense.
24. Landlord does not maintain suite finishes which are non-standard such
as kitchens, bathrooms, wallpaper, special lights, etc. However, should the
need for repairs arise, Landlord will arrange for the work to be done at the
tenant's expense.
B-26
25. All office equipment of any electrical or mechanical nature shall be
placed by Tenant in the Premises in approved settings to absorb or prevent any
vibration, noise or annoyance.
26. Tenant shall not permit or cause to be used in the Premises any device
or instrument such as a sound reproduction system, or excessively bright,
changing, flashing, flickering, moving lights or lighting devices or any similar
devices, the effect of which shall be audible or visible beyond the confines of
the Premises, nor shall Tenant permit any act or thing upon the Premises
disturbing to normal sensibilities of other tenants.
27. All moving of safes, freight, furniture or bulky matter of any
description, to or from the Premises, shall only take place on specified
elevators and during the hours designated by Landlord. Hand trucks may be used
only if they are equipped with rubber tires and side guards.
28. Tenant shall not use the Premises as headquarters for large scale
employment of workers for other locations.
29. The Premises shall never at any time be used for any immoral or
illegal purposes.
30. Landlord shall have the right, from time to time, to designate
specific parking spaces in the parking areas for the Building as being reserved
for specific tenants or for members of the general public, and each tenant
agrees to honor such reservations and to permit parking for officers and
employees only in those parking spaces available for such purposes, provided any
such designated parking spaces for Tenant shall be self-park spaces where the
automobile driver may remove his car without obstruction and without access to
any other car. Notwithstanding the foregoing, in no event shall more than
fifteen percent (15%) of the parking spaces designated for Tenant's use on the
Commencement Date pursuant to the foregoing be located on the lowest level of
the Building parking garage, it being agreed that such restriction shall not be
applicable to additional parking provided for Expansion Space. Tenant agrees to
park all vehicles within the striped lines provided for each space and to
otherwise comply with all reasonable rules and regulations established by
Landlord for the parking facility.
31. Tenant must provide the Landlord with a key or security code in order
to enter Tenant's premises in the case of emergencies and during non-Building
standard hours.
32. Tenant may not place any items on the balconies other than tables and
chairs (in accordance with building standard colors) without Landlord's prior
approval.
B-27
EXHIBIT H
NONDISTURBANCE AND ATTORNMENT AGREEMENT
MADE this day of , 198 , by and among COMMUNITY MOTORS PROPERTY
----- ------- --
ASSOCIATES LIMITED PARTNERSHIP ("Landlord"); FEDERAL DATA CORPORATION
("Tenant"); ("Mortgagee"); and
------------------------------------ ------------
("Trustee").
---------------
RECITALS
A. Landlord is the owner in fee simple of the real property in the
District of Columbia described in Exhibit A attached hereto ("Land") and of the
improvements ("Building") now under construction on the Land.
B. Mortgagee is the owner of the beneficial interest under that certain
deed of trust dated , encumbering the Land and Building made by
-------------
Landlord to the Trustee, and recorded in the records of the Clerk of the Circuit
Court of ▇▇▇▇▇▇▇▇▇▇ County, Maryland in Liber at folio
------- -----
(the "Mortgage").
C. Pursuant to an Agreement of Lease dated , 1984 (the
--------------------
"Lease") Tenant has leased from Landlord certain space in the Building ("Demised
Premises"). The Demised Premises are more particularly described in the Lease,
a true copy of which as executed by Landlord and Tenant has been delivered to
Mortgagee.
D. Tenant and Mortgagee desire to confirm certain understandings with
respect to the Lease and the Mortgage and Landlord desires to join herein to
evidence its agreement to the provisions hereof.
NOW, THEREFORE, in consideration of the covenants herein contained, the
parties hereby agree as follows:
1. APPROVAL OF LEASE. Mortgagee hereby approves the execution of the
Lease by Landlord and Tenant.
2. NONDISTURBANCE; NO JOINDER. So long as Tenant is not in default
(beyond any period granted to Tenant to cure such default) in the payment of
rent or additional rent or in the performance of any of the other terms,
covenants or conditions of the Lease on Tenant's part to be performed:
B-28
(a) Tenant's possession of the Demised Premises and Tenant's rights,
options and privileges under the Lease, or under any extensions thereof effected
in accordance with any option therefor in the Lease, shall not be diminished or
interfered with by Mortgagee, and Tenant's occupancy of the Demised Premises
shall not be disturbed by Mortgagee for any reason whatsoever during the term of
the Lease or any such extensions or renewals thereof; and
(b) Mortgagee will not join Tenant as a party defendant in any action
or proceeding for the purpose of terminating Tenant's interest and estate under
the Lease because of any default under the Mortgage.
3. ATTORNMENT. If Mortgagee succeeds to the interest of Landlord in the
Lease by reason of foreclosure, dispossession or other proceedings brought by
Mortgagee, or by any other manner, Tenant shall be bound to Mortgagee under all
of the terms, covenants, and conditions of the Lease for the balance of the term
thereof and any extensions thereof effected in accordance with any option
therefor in the Lease, with the same force and effect as if Mortgagee were the
landlord under the Lease, and Tenant does hereby attorn to Mortgage as its
landlord. Such attornment shall be effective and self-operative, without the
execution of any further instruments on the part of any of the parties hereto,
immediately upon Mortgagee's succeeding to the interest of Landlord under the
Lease. In confirmation of such attornment, Tenant shall execute and deliver
promptly any certificate or other instrument which Mortgagee may request;
PROVIDED, that Tenant shall be under no obligation to pay Base Rent, additional
rent or other sums payable under the Lease until Tenant receives written notice
from Mortgagee that Mortgagee has succeeded to the interest of Landlord under
the Lease or that Mortgagee has exercised any right under the Mortgage to
collect such payments directly from Tenant. The respective rights and
obligations of Tenant and Mortgagee upon such attornment shall be the same as
set forth in the Lease.
4. MORTGAGEE'S SUCCESSION. If Mortgagee shall succeed to the interest of
Landlord in the Lease, Mortgagee shall be bound to Tenant under all the terms,
covenants and conditions of the Lease, and Tenant shall, from and after
Mortgagee's succeeding the interest of Landlord in the Lease, have the same
remedies against Mortgagee for the breach of any agreement contained in the
Lease that Tenant might have had under the Lease against Landlord if Mortgagee
had not succeeded to the interest of Landlord; PROVIDED, that Mortgagee shall
not be --
(i) bound by any termination, amendment, modification or surrender of
the Lease without Mortgagee's written consent;
(ii) bound by any payment in advance of Base Rent or additional rent
for more than one month to any prior landlord (including Landlord), unless such
advance payment is specifically required under the Lease.
B-29
5. SUBORDINATION. Subject to the provisions hereof, the Lease now is and
shall continue to be subject and subordinate to the Mortgage, to any and all
renewals and modifications thereof and to all advances made and to be made
thereunder, so long as no such renewal or modification shall increase any
obligation of Tenant or shall diminish any obligation of Mortgagee or Landlord
hereunder or under the Lease. Any such renewal or modification shall
nevertheless be subject to and entitled to the benefits of the terms of this
Agreement and no further instrument of subordination shall be required. Such
subordination shall be effective and self-operative, without the execution of
any further instruments on the part of any of the parties hereto.
6. NO ORAL MODIFICATIONS. This Agreement may not be modified orally or in
any manner other than by an agreement in writing signed by the parties hereto or
their respective successors in interest.
7. BENEFIT AND BURDEN. All provisions and covenants in this Agreement
shall be deemed to touch and concern and run with the Land. This Agreement
shall inure to the benefit of, be enforceable by and be binding upon the parties
hereto and their respective successors and assigns, including as a successor in
the case of Mortgagee any purchaser at a foreclosure sale. The word "Mortgagee"
shall include the original Mortgagee named herein and any of its successors and
assigns, including any person or entity succeeding to Landlord's interest in the
Land or the Building or the Lease upon foreclosure of the Mortgage. The word
"foreclosure" and "foreclosure sale" as used herein shall be deemed to include
the acquisition of Landlord's estate in the Land or the Building by voluntary
deed, assignment or other disposition or transfer in lieu of foreclosure.
8. LEASE DEFINED. The word "Lease" as used herein shall be deemed to be
the Lease as originally executed by Landlord and Tenant, as amended or modified
by written agreements hereafter made, from time to time, between the Landlord
and Tenant and consented to by Mortgagee.
9. APPLICABLE LAW; GENDER. This Agreement shall be construed according to
the laws of the State of Maryland. The use of the neuter gender in this
Agreement shall be deemed to include any other gender, and words in the singular
number shall be held to include the plural, when the sense so requires.
10. TRUSTEE. Mortgagee hereby authorizes the Trustee to execute this
Agreement.
B-30
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of the
day and year first above written.
ATTEST: FEDERAL DATA CORPORATION
By: [SEAL]
------------------------- ------------------------
WITNESS: COMMUNITY MOTORS ASSOCIATES
LIMITED PARTNERSHIP
By:
------------------------- ------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
General Partner
ATTEST: [NAME OF MORTGAGEE]
By:
------------------------- ------------------------
[Corporate Seal]
WITNESS: [NAME OF TRUSTEE]
By:
------------------------- ------------------------
B-31
)
) ss:
)
Before me, a Notary Public in and for the jurisdiction aforesaid, on
this date personally appeared before me of
------------------------------------
Federal Data Corporation personally well known to me and acknowledged that he
executed the Agreement as the corporate act and deed of Federal Data
Corporation.
WITNESS my hand and official seal on , 198 .
------------------------ --
[SEAL]
----------------------
Notary Public
My commission expires:
)
) ss:
)
Before me, a Notary Public in and for the jurisdiction aforesaid, on
this date personally appeared before me
--------------------------------------
personally well known to me and acknowledged that he executed the Agreement as
the corporate act and deed of .
-----------------
WITNESS my hand and official seal on , 198 .
------------------------ --
[SEAL]
----------------------
Notary Public
My commission expires:
B-32
)
) ss:
)
Before me, a Notary Public in and for the jurisdiction aforesaid, on
this date personally appeared before me ▇▇▇▇ ▇. ▇▇▇▇▇▇ who is the person who
executed the foregoing Agreement dated , 198_ as general
--------------------
partner of the Landlord named therein and who being by me first duly sworn
acknowledged that he, being duly authorized, executed the Agreement as his free
act and deed for the purposes therein set forth.
WITNESS my hand and official seal on , 198__.
------------------
[SEAL]
----------------------
Notary Public
My commission expires:
)
) ss:
)
Before me, a Notary Public in and for the jurisdiction aforesaid, on
this date personally appeared who is well known to me as
------------------
the person who executed the foregoing Agreement dated as of ,
------------------
1984 as the Trustee named therein and who being by me first duly sworn
acknowledged that he, being duly authorized, executed the Agreement as his free
act and deed for the purposes therein set forth.
WITNESS my hand and official seal on , 1984.
-------------------
[SEAL]
----------------------
Notary Public
My commission expires:
B-33
EXHIBIT I
FORM OF TENANT'S LETTER OF CREDIT
IRREVOCABLE LETTER OF CREDIT NO.__
Community Motors Property Associates Limited Partnership
Suite 1135
Chevy Chase Building
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[DATE]
Gentlemen:
We hereby irrevocably authorize you to draw on _________, _______ ,
_________, for the account of Federal Data Corporation, the amount of One
Hundred Thousand Dollars ($100,000).
Available upon presentation to us, at our office at _________, _________,
_________, of your draft on us at sight stating that it is "drawn under
Credit No. ", accompanied by a sworn statement acknowledged before a notary
public signed by you, with signature guaranteed by a bank stating either (1)
that this credit has not been renewed or replaced at least fifteen (15) days
prior to the expiration date hereof, or (2) that "Federal Data Corporation
has defaulted under the Agreement of Lease dated _________, 1984 between
Community Motors Property Associates Limited Partnership and Federal Data
Corporation and such default has continued beyond any applicable grace
period, and that the amount drawn under this credit represents the amount
necessary to reimburse Community Motors Property Associates Limited
Partnership for damages attributable to such default." We agree to duly
honor upon presentation a draft under and in compliance with the terms of
this Credit when accompanied by the statement specified above.
This credit shall expire at _____ p.m., local time, on _________, unless
sooner extended or renewed in writing.
This Credit is subject to the Uniform Customs and Practice for
Documentary credits (1983 revision), International Chamber of Commerce
Publication No. 400.
[Insert Name of Bank]
By
-------------------------
B-34
B-35
EXHIBIT J
FORM OF LANDLORD'S LETTER OF CREDIT
IRREVOCABLE LETTER OF CREDIT NO.
Federal Data Corporation
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
[DATE]
Gentlemen:
We hereby irrevocably authorize you to draw on _________, _________,
_________, for the account of Community Motors Property Associates Limited
Partnership the amount of Three Hundred Thousand Dollars ($300,000).
Available upon presentation to us, at our office at _________, _________,
_________, of your draft on us at sight stating that it is "drawn under
Credit No. ", accompanied by a sworn statement acknowledged before a notary
public signed by your President or any Vice President, with signature
guaranteed by a bank stating either (1) that this credit has not been renewed
or replaced at least fifteen (15) days prior to the expiration date hereof,
or (2) that "Community Motors Property Associates Limited Partnership has
failed to complete the office building known as ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and the leasehold improvements therein in accordance with
Section 2.2 of the Agreement of Lease dated _________, 1984 between Community
Motors Property Associates Limited Partnership by the Guaranteed Completion
Date set forth in said Agreement of Lease and that Federal Data Corporation
is entitled to draw on this Credit in the amount drawn upon." We agree to
duly honor upon presentation a draft under and in compliance with the terms
of this Credit when accompanied by the statement specified above.
This credit shall expire at __p.m., local time, on _________,
unless sooner extended or renewed in writing.
This Credit is subject to the Uniform Customs and Practice for Documentary
credits (1983 revision), International Chamber of Commerce Publication No. 400.
[Insert Name of Bank]
B-36
By
-------------------------
B-37
EXHIBIT K
FORM OF PURCHASE OPTION LETTER OF CREDIT
IRREVOCABLE LETTER OF CREDIT NO.
[Insert name and address of Title Company]
[DATE]
Gentlemen:
We hereby irrevocably authorize you to draw on _________, _________,
_________, for the account of Federal Data Corporation, the amount of _________*
Dollars ($_________). All payments hereunder shall be made directly to you as
the Title Company under the Agreement of Lease dated _________, 1984
between Community Motors Property Associates Limited Partnership and Federal
Data Corporation.
Available upon presentation to us, at our office at _________, _________,
_________, of your draft on us at sight stating that it is "drawn under
Credit No. _________", accompanied by either (1) an affidavit acknowledged
before a notary public signed by a general partner of Community Motors
Property Associates Limited Partnership stating that "Community Motors
Property Associates Limited Partnership is entitled to draw upon Credit
No._________ pursuant to the Agreement of Lease dated _________, 1984 between
Community Motors Property Associates Limited Partnership and Federal Data
Corporation," or (2) a sworn affidavit, acknowledged before a notary public,
signed by one of your officers stating that this credit has not been renewed
or replaced at least fifteen (15) days prior to the expiration date hereof.
We agree to duly honor upon presentation a draft under and in compliance with
the terms of this Credit when accompanied by the statement specified above.
This credit shall expire at ___p.m., local time, on _________**_________,
unless sooner extended or renewed in writing.
This Credit is subject to the Uniform Customs and Practice for Documentary
credits (1983 revision), International Chamber of Commerce Publication No. 400.
[Insert Name of Bank]
By
-------------------------
B-38
* Insert amount provided for in section 30.3.1(b) of the Lease.
** Insert date which is thirty (30) days after the Purchase Option Settlement
Date as defined in Section 30.3.1 of the Lease.
B-39
AMENDMENT TO AGREEMENT TO LEASE
THIS AMENDMENT is made and entered into this 7th day of January, 1985 by
and between (i) Community Motors Property Associates Limited Partnership
("Landlord") and (ii) Federal Data Corporation ("Tenant").
WHEREAS, Landlord and Tenant executed an Agreement of Lease ("Lease") dated
December 5, 1984 and Landlord and Tenant desire to amend the Lease in certain
respects;
NOW, THEREFORE, in consideration of the mutual promises herein contained
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, it is agreed as follows:
1. Section 17 of the Lease is hereby amended to add the following Section
17.4 thereto:
SECTION 17.4.
17.4.1 Tenant agrees that, if requested by Landlord, any
non-disturbance agreement required to be delivered pursuant to this Article
17 may contain a modification (the "Special Modification") pursuant to
which the following clause (iii) shall be inserted in Section 4 on page 3
of the Non-Disturbance Agreement attached hereto as Exhibit H:
"(iii) liable for any damages or be subject to any offset or
defense by Tenant to the payment of Rent by reason of any act or omission
of Landlord prior to the date that Mortgagee succeeds to the interest of
Landlord, but the foregoing shall not be construed to relieve the Mortgagee
of its obligation to perform all obligations under the Lease during the
period after the Mortgagee succeeds to the interest of Landlord, subject to
the provisions of Section 20.11.2 of the Lease."
17.4.1 In the event that the Special Modification is included in any
non-disturbance agreement executed pursuant to this Article 17, Landlord
(and ▇▇▇▇ ▇. ▇▇▇▇▇▇ so long as he is a general partner of Landlord) agrees
to indemnify and hold harmless Tenant from any monetary loss that is
sustained by Tenant by reason of the inclusion of the Special Modification
in such non-disturbance agreement to the extent attributable to acts or
omissions of Landlord, or amounts received by Landlord, prior to the
effective date of the foreclosure sale by the Holder of the Superior
Instrument that executed such nondisturbance agreement (or its successors
or assigns).'
2. Section 20.11.4 of the Lease is hereby amended to add the phrase
"Section 17.4" after the phrase "Section 8.3.3" in clause (a) of Section 20.11.4
of the Lease.
B-40
3. Section 25.1 of the Lease is hereby amended to delete the date "January
15, 1985" in two places and to insert in lieu thereof the date "January 21,
1985."
4. In all other respects, the Lease is hereby ratified and confirmed.
COMMUNITY MOTORS PROPERTY
ASSOCIATES LIMITED PARTNERSHIP
By /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
General Partner
FEDERAL DATA CORPORATION
By /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------------
B-41
AMENDMENT NO. 2 TO LEASE AGREEMENT
This Amendment No. 2 to Lease Agreement is made the 14th day of November,
1986, by and between Community Motors Property Associates Limited Partnership, a
Maryland limited partnership, having its principal offices in ▇▇▇▇▇▇▇▇▇▇ County,
State of Maryland (hereinafter referred to as "Landlord,") and Federal Data
Corporation, a District of Columbia corporation having its principal offices at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (hereinafter referred to as "Tenant"),
WITNESSETH:
WHEREAS, Landlord & Tenant executed a Lease Agreement (the "Lease") dated
December 5, 1984 for Tenant's lease of certain space in Landlord's Building
located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and
WHEREAS, an Amendment to Agreement to Lease was executed on January 7,
1985; and
WHEREAS, Tenant exercised its option to lease the ninth floor of Landlord's
Building on October 1, 1985; and
WHEREAS, Landlord and Tenant now wish to further amend the Lease to clarify
certain provisions contained therein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
1. PREMISES
The rentable area of the Premises according to the Washington Board of
Realtors standard method of measurement, including the second, third,
tenth, eleventh, twelfth, and now the ninth floors, is 77,338 square feet.
The annual base rent stated in section 4.1.1 of the Lease is therefore
adjusted to One Million, Nine Hundred and Thirty-Three Thousand, Four
Hundred and Fifty Dollars ($1,933,450), payable in equal monthly
installments of $161,120.83.
2. ELECTRICAL USAGE
Section 4.3.1.(b) of the Lease is hereby amended in its entirety to read as
follows: "charges or fees for, and taxes on, the furnishing of water,
sewer service, gas, fuel, electricity, or other utility services to the
Building."
Section 4.3.2.(o) of the Lease is hereby deleted.
Section 4.3.3. is hereby deleted.
B-42
Section 4.3.4.(i). The number $4.10 is hereby amended to read $5.75.
Section 4.3.4.(ii) and the balance of Section 4.3.4. are hereby deleted.
Section 8.1.1. The final seven (7) lines of the paragraph, beginning with
the phrase "Landlord's actual cost of providing such services . . ." are
hereby deleted and replaced by the following:
Floor Hourly Charge*
----- -------------
2** $19.00
3 21.00
9 16.00
10 17.00
11 15.00
12 15.00
Computer Room 18.00
* Subject to full annual CPI adjustment.
** Except computer room.
If Tenant uses more than one floor after hours, the hourly rate for each
additional floor shall be reduced by eight dollars ($8.00). However, the
Computer Room shall not be subject to such reduction, nor shall its usage
cause the hourly rate for any other space to be reduced.
All other terms and conditions of the Lease shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2 to Lease
Agreement to be executed as of the date and year first written above.
WITNESS: LANDLORD
COMMUNITY MOTORS PROPERTY
ASSOCIATES LIMITED PARTNERSHIP
BY: By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- --------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
General Partner
B-43
ATTEST: TENANT
FEDERAL DATA CORPORATION
BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- ----------------------------------
B-44
AMENDMENT NO. 3 TO LEASE AGREEMENT
This Amendment No. 3 to Lease Agreement is made the 6th day of February,
1987, by and between Community Motors Property Associates Limited Partnership, a
Maryland limited partnership, having its principal offices in ▇▇▇▇▇▇▇▇▇▇ County,
State of Maryland, (hereinafter referred to as "Landlord") and Federal Data
Corporation, a District of Columbia corporation having its principal offices at
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (hereinafter referred to as the "Tenant"),
WITNESSETH:
WHEREAS, Landlord and Tenant executed a Lease Agreement (the "Lease") dated
December 5, 1984 for Tenant's lease of certain space in Landlord's Building
located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and
WHEREAS, an Amendment to Agreement to Lease was executed on January 7,
1985; and
WHEREAS, Tenant exercised its option to lease the ninth floor of Landlord's
Building on October 1, 1985; and
WHEREAS, a second Amendment to Agreement to lease was executed on November
14, 1986; and
WHEREAS, Landlord and Tenant now wish to further amend the Lease to clarify
certain provisions contained therein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
1. STORAGE SPACE
Landlord hereby leases to Tenant and Tenant hereby leases from Landlord, subject
to the conditions of the Lease Agreement referred to herein, storage space
totalling approximately 726 square feet located on the B-3 level of the garage
as set forth in Exhibit A of this Amendment No. 3. This space is leased on an
"as is" basis at an annual base rent calculated at a rate of eight dollars
($8.00) per square foot and paid on a monthly basis of four hundred eighty four
dollars and no cents ($484.00) escalated annually by three percent (3%).
It is mutually agreed that the Rent Commencement and Lease Commencement date for
the storage space is December 1, 1986 for a term to expire co-terminus with the
lease for the office space currently occupied by Tenant.
The five (5) parking spaces which comprise this storage space will be deducted
from the parking allocation provided pursuant to Article 26 of this lease.
B-45
All other terms and conditions of the Lease shall remain in full force and
effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 3 to Lease
Agreement to be executed as of the date and year first written above.
WITNESS: LANDLORD
COMMUNITY MOTORS PROPERTY
ASSOCIATES LIMITED PARTNERSHIP
BY: BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
---------------------------- --------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
General Partner
WITNESS: TENANT
FEDERAL DATA CORPORATION
BY: BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------- --------------------------------
B-46
DECLARATION BY LANDLORD AND TENANT
AS TO DATE OF DELIVERY
EXHIBIT C
THIS AGREEMENT OF CONFIRMATION of the Lease Term made and entered into this
4th day of December, 1986, by and between COMMUNITY MOTORS PROPERTY ASSOCIATES
LIMITED PARTNERSHIP, hereinafter referred to as "Landlord" and FEDERAL DATA
CORPORATION, hereinafter referred to as "Tenant."
WITNESSETH
WHEREAS, by that certain Agreement of Lease made and entered into the 5th
day of December, 1984, Landlord leased to Tenant that certain space described
therein in the Building located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ for an
initial term to ten (10) years.
AND WHEREAS, Section 2.3 of the Lease states that a written instrument
shall be executed confirming the commencement date of the Lease and rental
payments and the expiration date of the Lease.
NOW, THEREFORE, in consideration of the Premises, Landlord and Tenant
hereby confirm and agree as follows:
FLOOR COMMENCEMENT OF FREE FIRST
AND RENTAL AND PRORATED RENTAL FULL MONTH
SQ. FT. LEASE TERM RENTAL DUE PERIOD RENTAL
------- --------------- ---------- ------- ----------
77,338 sq ft August 9, 1986 Aug. 9, 1986 Sept. 1, 1986 January 1, 1987
Aug. 31, 1986 December 31, 1986 $161,120.84
$119,541.35
The expiration date of the initial term shall be August 31, 1996.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Declaration by
Landlord and Tenant as to Date of Delivery as of the day and year first above
written.
WITNESS: COMMUNITY MOTORS PROPERTY
ASSOCIATES LIMITED PARTNERSHIP
BY: BY: [SEAL]
---------------------------- --------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
General Partner
B-47
LANDLORD
ATTEST: FEDERAL DATA CORPORATION
BY: BY:
---------------------------- --------------------------------
President
TENANT
B-48
AMENDMENT NO. 4 TO LEASE AGREEMENT
THIS AMENDMENT NO. 4 TO LEASE AGREEMENT is made the 31st day of March,
1993, by and between Community Motors Property Limited Partnership, a Maryland
limited partnership, having its principal offices in ▇▇▇▇▇▇▇▇▇▇ County, State of
Maryland (hereinafter referred to as "Landlord") and Federal Data Corporation, a
District of Columbia corporation having its principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (hereinafter referred to as the "Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant executed a Lease Agreement (the "Lease") dated
December 5, 1984 for Tenant's lease of certain space in Landlord's Building
located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇; and
WHEREAS, an Amendment to Agreement to Lease was executed on January 7,
1985; and
WHEREAS, Tenant exercised its option to lease the ninth floor of Landlord's
Building on October 1, 1985; and
WHEREAS, a second Amendment to Agreement to Lease was executed on November
14, 1986; and
WHEREAS, a third Amendment to Agreement to Lease was executed on February
6, 1987; and
WHEREAS, Landlord and Tenant now wish to further amend the Lease to clarify
certain provisions contained therein;
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements hereinafter set forth, the parties hereto agree as
follows:
1. As of April 1, 1993, Landlord will deliver to Tenant One Thousand Six
Hundred fifty (1,650) square feet of gross rentable floor area of
office space on the first (1st) floor of the Building (the "Additional
Space") and said Additional Space shall be added to the Premises as
defined under the Agreement of Lease. The Additional Space is
outlined in red on Exhibit "A" attached hereto and incorporated herein
by reference.
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2. As of April 1, 1993, the Base Rent as set forth in Section 3.1.1 of
the Agreement of Lease shall be increased by Thirty-Seven Thousand One
Hundred Twenty-Five Dollars ($37,125.00) per annum and the monthly
rent increased by Three Thousand Ninety-Three and 75/100 Dollars
($3,093.75). Tenant shall also be responsible for increases in
operating expenses, as set forth in Section 3.2.4 of the Lease
Agreement, in excess of actual operating expenses for calendar year
1993. Tenant's pro rata share of operating expenses shall be adjusted
accordingly.
3. The term of the Lease shall be coterminous with the Lease Agreement
dated December 5, 1984, except that Tenant shall have the right to
terminate the lease for this Additional Space at any time after March
31, 1994 by providing ninety (90) days advance written notice to
Landlord. In the event Tenant exercises its option to terminate, then
Tenant shall reimburse Landlord an amount equal to Seven Hundred
Eighty Dollars ($780.00) times the number of months remaining from the
termination date to September 1, 1996, as the unamortized construction
and lease commission attributable to this Additional Space. This
payment shall be due at the time Tenant exercises this termination
option.
All other terms and conditions of the Lease as amended, except as
specifically modified herein, shall remain in full force and effect.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 4 to
Lease Agreement to be executed as of the date and year first written above.
WITNESS: COMMUNITY MOTORS PROPERTY
ASSOCIATES LIMITED PARTNERSHIP
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------- --------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇
General Partner
WITNESS: FEDERAL DATA CORPORATION
BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------- --------------------------------
B-50
▇▇▇▇▇▇ ▇▇▇▇▇▇,
CEO
B-51
AMENDMENT NO. 5 TO LEASE AGREEMENT
AMENDMENT NO. 5 TO LEASE (the "Amendment") is made as of the 8th day
of March, 1995, by and between COMMUNITY MOTORS PROPERTY ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership, having its principal offices in
▇▇▇▇▇▇▇▇▇▇ County, State of Maryland ("Landlord"), and FEDERAL DATA CORPORATION,
a Delaware corporation having its principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("Tenant").
WHEREAS, Landlord and Tenant entered into that certain Agreement of
Lease (the "Lease") dated December 5, 1984, with respect to certain space as
further described in the Lease (the "Premises") in the building with an address
of ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Building");
WHEREAS, Landlord and Tenant amended the Lease pursuant to that
certain Amendment to Agreement of Lease dated January 7, 1985 (the "First
Amendment");
WHEREAS, Landlord and Tenant amended the Lease pursuant to that
certain Amendment No. 2 to Lease Agreement dated November 14, 1986 (the "Second
Amendment");
WHEREAS, Landlord and Tenant amended the Lease pursuant to that
certain Amendment No. 3 to Lease Agreement dated February 6, 1987 (the "Third
Amendment");
WHEREAS, Landlord and Tenant amended the Lease pursuant to that
certain Amendment No. 4 to Lease Agreement dated March 31, 1993 (the "Fourth
Amendment") (hereinafter all references herein to the "Lease" shall refer to the
Lease as amended by the First Amendment, Second Amendment, Third Amendment and
Fourth Amendment, as amended hereby);
WHEREAS, Landlord and Tenant desire to revise the definition of the
Premises, the rental rate for the Premises, extend the Lease term and amend the
Lease in other ways, all on such terms and conditions hereinafter set forth;
WHEREAS, Landlord is a debtor in bankruptcy proceedings Case No.
94-1-5830-DK (Chapter 11) (the "Bankruptcy Proceeding") pending before the U.S.
Bankruptcy Court for the District of Maryland (the "Court");
WHEREAS, Landlord's authority to accept and execute this Agreement is
subject to approval by the Court of that certain Settlement Agreement by and
among Landlord, The Travelers Insurance Company ("Travelers") and ▇▇▇▇ ▇. ▇▇▇▇▇▇
that is the subject of the Notice of Joint Motion for Approval of Settlement
Agreement dated February 3, 1995 filed with the
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Court, as amended by the Praecipe filed by Landlord and Travelers dated March
10, 1995 and filed with the Court (the "Settlement Agreement"), and of this
Amendment in connection with the Settlement Agreement; and
WHEREAS, Landlord's assumption of the Lease as modified by this
Amendment is subject to the approval of the Court.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant,
intending to be legally bound, hereby agree as follows:
1. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated
herein and made a part hereof by this reference.
2. DEFINITIONS. All capitalized terms in this Amendment shall have the
meanings assigned thereto in the Lease unless otherwise specified.
3. RETROACTIVE AND COURT APPROVAL DATES.
(a) RETROACTIVE DATE. The terms of this Amendment shall commence to apply
to Sections 6, 7 and 8 of this Amendment retroactively as of 12:01 a.m. on
January 1, 1995 ("Retroactive Date"), and shall apply from and after the Court
Approval Date as to the other provisions of this Amendment, subject to the
conditions precedent set forth in Section 3(b) hereof.
(b) BANKRUPTCY ORDERS CONTINGENCY.
(i) Notwithstanding the execution of this Amendment by the Landlord
and consent thereto by Travelers, this Amendment and Travelers' consent thereto
shall not be effective unless and until such time that the Lease Approval Orders
(hereafter defined) have been issued by the Court and have become final orders
of the Court which are not subject to any appeal by reason of expiration of the
appeal period with no appeal having been taken or by reason of any dismissal
with prejudice of any appeal.
(ii) For purposes hereof, the Lease Approval Orders shall be one or
more orders of the Court that (A) approve the Settlement Agreement, (B) approve
the execution of this Amendment by the Landlord, (C) approve the assumption of
the Lease and this Amendment by the Landlord, (D) contains a finding that the
notice or notices provided to parties in interest was waived and/or adequate and
appropriate under the circumstances, and (E) contains no qualifications,
conditions or provisions not acceptable to Tenant and Travelers.
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(iii) Tenant hereby unconditionally and irrevocably consents to
the Settlement Agreement and the Travelers' and Debtor's Joint Plan of
Reorganization for the Debtor that is included as an exhibit to the Settlement
Agreement (the "Joint Plan") and the assignment and assumption of the Landlord's
interest in and obligations under the Lease in accordance with the terms of the
Joint Plan, including, without limitation, the assignment of the Lease to
Travelers, or its designee, pursuant thereto on the Effective Date (as defined
in the Joint Plan). Tenant further hereby unconditionally and irrevocably
consents to any other transfer of the Building and assignment and assumption of
the Landlord's interest in and obligations under the Lease to Travelers, or its
designee, pursuant to the Travelers' Plan (as defined in the Settlement
Agreement as amended from time to time) or otherwise. Tenant further hereby
unconditionally and irrevocably consents to any amendments hereafter adopted to
the Settlement Agreement, the Joint Plan or the Travelers' Plan provided that
Tenant shall not be deemed to have consented to any such amendment if and to the
extent that such amendment would result in a change in any of the provisions of
the Lease as modified by this Amendment or if and to the extent that such
amendment would affect any claim that Tenant may have, as a partner of the
Landlord, with respect to the manner in which any funds (if any) previously or
hereafter received by the Landlord or the general partner of the Landlord,
including funds (if any) to be received pursuant to the Joint Plan or the
Travelers' Plan, shall be allocated among the partners of the Landlord.
(iv) In the event that the conditions set forth in Section
3(b)(i) occur on or before May 1, 1995 or such later date as Landlord, Tenant
and Travelers may agree to in writing (the "Court Approval Deadline Date"), (A)
Landlord, Tenant and Travelers shall execute an appropriate document confirming
that the conditions set forth in Section 3(b)(i) of this Amendment have been
fulfilled, (B) Tenant shall be deemed to have withdrawn, dismissed and released
all objections filed or otherwise interposed by Tenant with respect to the
Settlement Agreement (including, without limitation, the Limited Objection to
Joint Motion for Approval of Settlement Agreement and Bankruptcy Code Section
364(c)(1) Financing), the Joint Plan, the Travelers' Plan, any transfer of the
Building to Travelers or its designee, and/or the assignment and assumption of
the Landlord's interest in and obligations under the Lease in accordance with
the terms of the Joint Plan or Travelers' Plan or other transfer of the Building
to Travelers or its designee, and (C) Tenant agrees not to raise any new
conditions, requirements or objections with respect to the Settlement Agreement,
the Joint Plan, the Travelers' Plan, any transfer of the Building to Travelers
or its designee, and/or the assignment and assumption of the Landlord's interest
in and obligations under the Lease in accordance with the terms of the Joint
Plan or the Travelers' Plan or other transfer of the Building to Travelers or
its designee, including the assignment of the Lease to Travelers, or its
designee, pursuant to the Joint Plan, the Travelers' Plan or otherwise, except
that the provisions of the last sentence of Section 3(b)(iii) of this Amendment
shall apply to the foregoing.
(v) In the event that the conditions set forth in Section
3(b)(i) do not occur on or before the Court Approval Deadline Date, this
Amendment shall be null and void and of no force or effect as fully and as
effectively as if this Amendment had not been executed.
B-54
(vi) The Landlord unconditionally and irrevocably agrees that the
Lease as modified by this Amendment will be assumed in the Bankruptcy Proceeding
regardless of whether the Joint Plan or the Travelers' Plan is confirmed and
will not later be rejected, and Travelers (by executing the consent hereto)
consents to the foregoing.
(vii) The date on which the conditions set forth in Section
3(b)(i) of this Amendment occur is herein referred to as the "Court Approval
Date."
(viii) On or before the Delivery Date (as defined in the Joint
Plan, or the Travelers' Plan, if applicable), Tenant shall execute and deliver,
in the manner required by the Joint Plan or the Travelers' Plan, as the case may
be, the Travelers Parties Release attached as an exhibit to the Joint Plan or
the Travelers' Plan, as the case may be, provided that such Release, to the
extent applicable to Tenant, shall be deemed to exclude matters arising under
the Lease as amended by this Amendment from and after the date of this
Amendment. The Debtor Parties Release delivered by Travelers pursuant to the
Joint Plan or the Travelers' Plan, to the extent applicable to the Tenant, shall
also be deemed to exclude matters arising under the Lease as amended by this
Amendment from and after the date of this Amendment.
4. TERM. The original Term (as defined in Section 2.1 of the Lease) is hereby
extended to expire at 11:59 p.m. on December 31, 2004 ("Expiration Date"),
unless further extended or earlier terminated in accordance with the terms of
the Lease. Notwithstanding Section 2.1 of the Lease, any reference to "Lease
Year" shall mean a twelve (12) month period commencing on January 1st of the
applicable year and ending on December 31st of the applicable year, with the
first Lease Year being the period from January 1, 1995 to December 31, 1995, all
dates inclusive.
5. PREMISES; STORAGE SPACE. The Premises are hereby deemed to be (i) 1,650
square feet of Rentable Area located on the first (1st) floor of the Building
("1st Floor Space"), (ii) 18,168 square feet of Rentable Area located on the
second (2nd) floor of the Building ("2nd Floor Space"), (iii) 17,422 square feet
of Rentable Area located on the third (3rd) floor of the Building ("3rd Floor
Space"), (iv) 3,240 square feet of Rentable Area located on the ninth (9th)
floor of the Building ("3,240 9th Floor Space"), (v) 11,623 square feet of
Rentable Area located on the tenth (10th) floor of the Building ("10th Floor
Space"), (vi) 9,208 square feet of Rentable Area located on the eleventh (11th)
floor of the Building ("11th Floor Space"), and (vii) 9,531 square feet of
Rentable Area located on the twelfth (12th) floor of the Building ("12th Floor
Space"), all as more fully described on EXHIBIT A attached hereto and hereby
incorporated by reference herein, and consist in the aggregate of 70,842 square
feet of Rentable Area. The Storage Space (as defined in the Third Amendment),
which consists of 726 square feet and is located on the B-3 level of the
Building's garage, shall continue to be subject to the terms of the Lease as set
forth in the Third Amendment, including without limitation the rental set forth
therein. Notwithstanding the terms of the Lease, as of the Retroactive Date,
except as set forth in this paragraph, no other space shall be deemed part of
the Premises or the Storage Space. The
B-55
parties agree that the figures for the Rentable Area of the Premises set forth
in this Section 5 are conclusive and shall not be subject to further measurement
or adjustment and that the Rentable Area of the Building (retail and office
space) is 167,500 square feet and shall not be subject to further measurement or
adjustment except that if the Landlord constructs any additional or reduces the
Rentable Area of the Building then the Rentable Area of the Building shall be
increased or decreased by the amount of such additional or reduced Rentable
Area, as applicable.
6. BASE RENT.
(a) PAYMENTS. Section 4.1.1 of the Lease is hereby deleted and the
following substituted therefor:
"An annual base rent with respect to the 3,240 ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ Space and 12th Floor Space, which consist of 33,602
square feet of Rentable Area ("Upper Floors Space"), of Seven Hundred
Fifty-Six Thousand Forty-Five Dollars ($756,045.00) for each Lease Year
during the Term, payable in equal monthly installments of Sixty-three
Thousand Three and 75/100 Dollars ($63,003.75) which amount shall be equal
to Twenty-two and 50/100 Dollars ($22.50) multiplied by the Rentable Area
of the Upper Floors Space ("Upper Floors Space Base Rent"). An annual base
rent with respect to the ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ Space and 3rd Floor
Space, which consists of 37,240 square feet of Rentable Area ("Lower Floors
Space"), of Eight Hundred Thousand Six Hundred and Sixty Dollars
($800,660.00) for each Lease Year during the Term, payable in equal monthly
installments of Sixty-six Thousand Seven Hundred Twenty-one and 67/100
Dollars ($66,721.67), which amount shall be equal to Twenty-one and 50/100
Dollars ($21.50) multiplied by the Rentable Area of the Lower Floors Space
("Lower Floors Space Base Rent"). In the aggregate, the Upper Floors Space
Rent and the Lower Floors Space Rent ("Base Rent") is One Million Five
Hundred Fifty-Six Thousand Seven Hundred Five Dollars ($1,556,705.00) for
each Lease Year during the Term, payable in equal monthly installments of
One Hundred Twenty-nine Thousand Seven Hundred Twenty-five and 42/100
Dollars ($129,725.42), subject to the terms of Section 10 of this
Amendment."
(b) ABATEMENT. Section 4.3.11 of the Lease shall have no further force or
effect since the provisions thereof have been fully performed.
7. ESCALATION OF BASE RENT. Section 4.2 of the Lease is hereby deleted and
the following substituted therefor:
"Commencing on the first day of the second (2nd) Lease Year and on the
first day of each Lease Year thereafter until and including the eighth
(8th) Lease Year, the applicable Base Rent (as adjusted by this Section
4.2) shall be increased by an amount
B-56
equal to two percent (2%) multiplied by the applicable Base Rent (as
adjusted by this Section 4.2) payable by Tenant for the immediately
preceding Lease Year. On the first day of the ninth (9th) Lease Year and
on the first day of each Lease Year thereafter through the expiration of
the Term, the Base Rent (as adjusted by this Section 4.2) shall be
increased by an amount equal to two and one half percent (2.5%) multiplied
by the applicable Base Rent (as adjusted by this Section 4.2) payable by
Tenant for the immediately preceding Lease Year."
8. ANNUAL OPERATING COSTS.
(a) OPERATING COSTS FACTOR. Section 4.3.4 of the Lease is hereby deleted
and the following substituted therefor: "For purposes of this Lease, the
`Operating Costs Factor' shall mean the Annual Operating Costs per square foot
of Rentable Area in the Building for calendar year 1995 (as derived under the
provisions of Section 4.3.5)." Since the Operating Costs Factor is based on
calendar year 1995, Tenant shall not have any obligation to pay any Tenant's
Operating Costs Amount (or estimated payments with respect thereto) for calendar
year 1995.
(b) CAP ON ACTUAL EXPENSES. Notwithstanding anything to the contrary in
the Lease, the Tenant shall not be required, in any calendar year (excluding
calendar year 1996 and each calendar year in which an applicable Extension
Period commences), to pay that portion of Tenant's Operating Costs Amount (other
than for the costs of the items described in Sections 4.3.1(a) and (b) of the
Lease, being the "Exclusions") which exceed one hundred seven percent (107%) of
Tenant's Operating Costs Amount (less the Exclusions) per square foot of
Rentable Area of the Premises payable with respect to the immediately prior
calendar year.
(c) CAP ON ESTIMATED EXPENSES. At the end of the first sentence of
Section 4.3.8 of the Lease, add the following: "for any year prior to 1995;
provided, further, that in no event shall the estimate furnished by Landlord
exceed one hundred and seven percent (107%) of Tenant's Operating Costs Amount
(other than for the costs of the Exclusions) for the immediately preceding
calendar year for any year after 1996."
(d) STATEMENTS AND ESTIMATES OF OPERATING COSTS. Notwithstanding anything
to the contrary in the Lease:
(i) Each Operating Costs Statement required to be submitted by
Landlord shall contain reasonably detailed line items of the various components
of Operating Costs at a level of detail comparable to that set forth in the
▇▇▇▇▇ ▇▇▇▇▇▇▇ statement for the Building attached hereto as EXHIBIT B.
(ii) All Landlord estimates of Operating Costs pursuant to Section
4.3.8 shall be on a form that fulfills the requirements for an Annual Operating
Costs Statement under Section 8(d)(i) of this Amendment and must be based upon
either known cost increases or decreases
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(such as a revised tax assessment or tax rate or a renegotiated or new service
contract) or must specify the basis on which the Landlord has assumed such cost
increase or decrease (I.E. CPI increase or otherwise) and shall be accompanied
by an explanation of any increases or decreases from any previous statement.
Tenant shall have no right to contest the basis for Landlord's estimates or
assumptions absent manifest error, and Tenant shall pay Landlord on the basis of
Landlord's estimates, notwithstanding any dispute, until such time as such
dispute has been resolved and adjusted by Landlord.
(e) FURTHER EXCLUSIONS FROM ANNUAL OPERATING COSTS. The term "Annual
Operating Costs" shall not include any cost incurred by Landlord for the Repair
Work (defined below). In determining the "prevailing market rate charged in
arm's length transactions" for purposes of determining the maximum amount of the
management fee included in Annual Operating costs pursuant to clause (e) of
Section 4.3.1 of the Lease, the amount of any management fee paid in
transactions under which the management company or any one or more direct or
indirect beneficial owners in the aggregate of at least a ten percent (10%)
interest in such management company or members of the family of such persons
also own a direct or indirect beneficial ownership interest in the building that
is managed by such management company ("Related Management") shall not be
treated as an "arm's length transaction." Nothing herein is intended to or
shall be construed to preclude Related Management from charging or Landlord from
paying a management fee in excess of the "prevailing market rate charged in
arm's length transactions" or Landlord from including the management fees paid
to Related Management in Annual Operating Costs up to (but not in excess of) the
prevailing market rate charged in arm's length transactions (as defined above).
(f) CONTINUING RESPONSIBILITY. Tenant shall continue to be responsible
for Base Rent, Additional Rent (including its share of Annual Operating Costs)
and any other amounts payable by Tenant for the period through December 31, 1994
under the terms of the Lease as amended, but without giving effect to this
Amendment.
(g) GROSS-UP PROVISION. The provisions of Section 4.3.5 of the Lease
shall apply to all calendar years during the Term from and after the Retroactive
Date for all purposes of the Lease, including the computation of the Annual
Operating Costs for calendar year 1995 and for the calendar year in which each
Extension Period commences.
(h) MUTUAL RELEASE. Landlord and Tenant hereby release and discharge each
other from any and all claims, demands or causes of action attributable to any
acts or omissions under the Lease or the Building prior to the date of this
Amendment. Landlord acknowledges that it has received full payment of (and
hereby waives and surrenders all claims for) all amounts payable by Tenant under
the Lease with respect to the period prior to March 1, 1995 and waives all
claims for payment of any Tenant's Operating Costs Amounts for calendar years
ending prior to the Retroactive Date and Tenant acknowledges that Tenant is not
entitled to (and hereby waives and surrenders all claims for) any refunds,
offsets, chargebacks or other amounts that
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may be payable by Landlord to Tenant attributable to the period prior to the
date of this Amendment, except as otherwise provided for in Section 9(b)
(subject to Section 9(c)) of this Amendment.
9. CREDIT/ALLOWANCES.
(a) IMPROVEMENT ALLOWANCE. Landlord agrees to pay to Tenant an amount
("Improvement Allowance") equal to (i) Twelve Dollars ($12.00) per square foot
of Rentable Area in the 10th Floor Space, 11th Floor Space and the 12th Floor
Space (▇▇,▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇) and (ii) Eight Dollars ($8.00) per
square foot of Rentable Area in the Lower Floors Space (▇▇,▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇) on the date on which Travelers, or its designee, acquires the
Building pursuant to the Joint Plan, but in no event later than June 15, 1996,
provided, however, that in the event that the Improvement Allowance is not paid
to Tenant on or before June 1, 1995, Landlord shall pay to Tenant interest on
the amount of the Improvement Allowance at the rate of five percent (5%) per
annum from June 1, 1995 to the date of payment of the Improvement Allowance to
Tenant.
(b) RENT CREDIT. Landlord agrees that Tenant shall be entitled to a
credit ("Rent Credit") for the amount by which the Base Rent (as adjusted by
Section 4.2 of the Lease) and the Additional Rent payable pursuant to Section
4.3 of the Lease in each case determined by the Lease without giving effect to
this Amendment, for the Premises from the period commencing on the Retroactive
Date and terminating on the date prior to the Court Approval Date and actually
paid by the Tenant exceeds the Base Rent under the Lease for the same period
upon giving effect to this Amendment plus a credit (the "Initial Rent Credit
Interest") equal to interest at the rate of five percent (5%) per annum on the
amount of the Rent Credit from May 1, 1995 to the date prior to the Court
Approval Date. The Rent Credit and the Initial Rent Credit Interest shall be
calculated as aforesaid on the Court Approval Date and the amount of the Rent
Credit and the Initial Rent Credit Interest shall be payable to Tenant only by
Tenant deducting from each of the monthly installments of Base Rent payable
under the Lease after the Court Approval Date one twelfth (1/12) of the amount
of the Rent Credit and Initial Rent Credit Interest, plus interest on the unpaid
portion of the Rent Credit and the Initial Rent Credit Interest at the rate of
five percent (5%) per annum until the full amount of the Rent Credit and Initial
Rent Credit Interest and the aforesaid interest on the unpaid principal balance
thereof has been paid in full.
(c) CONDITIONS. Landlord's obligations to give the Improvement Allowance
to Tenant and Tenant's entitlement to the Rent Credit are expressly subject to
the conditions that Tenant does not object to (except the previously filed
objection which is deemed withdrawn hereby), or raise any new objections,
conditions or requirements with respect to, the Settlement Agreement, the Joint
Plan, the Travelers' Plan or any other transfer of the Building to Travelers
B-59
or its designee, and/or and the assignment and assumption of the Lease in
accordance with the terms of the Joint Plan, the Travelers' Plan or any other
transfer of the Building to Travelers or its designee, including, without
limitation, the assignment of the Lease to Travelers, or its designee, pursuant
thereto on the Effective Date or the transfer of the Building to Travelers or
its designee, other than an objection that Tenant is entitled to make pursuant
to the last sentence of Section 3(b)(iii) of this Amendment. In the event that
at the time the Improvement Allowance and interest thereon becomes payable,
Tenant is in default in the payment of any monetary amount to Landlord and such
default continues uncured for five (5) days after written notice of such default
has been sent by Landlord to Tenant or, in the event Tenant files or has filed
against it a petition for relief under the United States Bankruptcy Code (11
U.S.C. Sections 101 ET SEQ., as amended) or any other insolvency proceedings
(collectively, "Insolvency Proceeding"), Landlord may (i) suspend the payment of
such Improvement Allowance without interest until such time that such default
has been cured by Tenant and, in the case of an Insolvency Proceeding, the Lease
has been assumed by Tenant in accordance with the provisions of the Bankruptcy
Code with Landlord's consent, and (ii) deduct any amounts owed by Tenant from
the Improvement Allowance.
(d) REFURBISHING ALLOWANCE. Article 31 ("Tenant's Refurbishing Allowance;
Refurbishing by Landlord") is hereby deleted. On January 1, 2000 and provided
this Lease is in full force and effect, Landlord shall pay to Tenant an amount
("Refurbishing Allowance") equal to the product of the Rentable Area of the
Allowance Space (as hereafter defined) and Five Dollars ($5.00). The "Allowance
Space" shall mean the Premises as of January 1, 2000, less any Expansion Space
leased by Tenant after December 31, 1997.
(e) TENANT'S RIGHT TO SET OFF CONCERNING IMPROVEMENT ALLOWANCE. If
Landlord has failed to pay to Tenant, as and when due, the Improvement Allowance
and interest thereon which payment is required to be made by Landlord in
accordance with the terms of the Lease (such unpaid allowance and interest
thereon shall be referred to as the "Overdue Allowance"), which Overdue
Allowance remain unpaid after delivery of written notice of such failure
("Failure Notice") to Landlord, Travelers and any subsequent first mortgage
lender designated by Landlord in writing to Tenant in accordance with the terms
of Article 19 of the Lease ("Notices") or who have signed a subordination,
attornment or non-disturbance agreement with Tenant ("Notice Parties") and after
the expiration of fifteen (15) days following delivery to all of the Notice
Parties of such notice from Tenant, during which fifteen (15) day period none of
the Notice Parties pays such Overdue Allowance to Tenant in accordance with the
terms of the Lease, then Tenant shall have the right to set off against any Base
Rent or Tenant's Operating Costs Amount due under the Lease such amount not paid
by Landlord plus interest thereon at the interest rate specified in Section 9.4
of the Lease ("Interest Rate"). The foregoing interest shall be calculated from
the date such amount was originally due through the earlier of the date on which
such amount is reimbursed by any of the Notice Parties or the date on which such
amount is credited against Base Rent or Tenant's Operating Costs Amount as set
forth above. The Failure Notice shall include a statement that Tenant intends
to exercise this right to set off and shall identify in reasonable detail the
basis for the offset and the date on which such amounts should have been paid to
Tenant. Any dispute in which Tenant utilizes this right to set off shall
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be subject to the final determination of a court of competent jurisdiction and
in the event Tenant does not prevail in such dispute, then Tenant shall pay
Landlord, in addition to the amount so set off and reasonable attorneys' fees
and expenses, interest thereon at the Interest Rate, calculated from the date
Tenant should have paid Landlord for the Base Rent or Tenant's Operating Costs
Amount subject to the set off until the date Tenant actually reimburses Landlord
therefor.
10. ASSIGNMENT AND ASSUMPTION AND/OR TERMINATION OF CERTAIN SUBLEASES.
(a) ASSIGNMENT AND ASSUMPTION OF ▇▇▇▇▇▇▇ AND ▇▇▇▇▇ SUBLEASES. Effective
as of the Court Approval Date, (i) Tenant hereby assigns to Landlord all of
Tenant's rights under the Agreement of Sublease [undated] and Addendum No. 1
dated , 1988 attached thereto between Tenant, as sublandlord, and
Watkins, Meegan, ▇▇▇▇▇ & Company, as subtenant (the "▇▇▇▇▇▇▇ Sublease") relating
to 3,522 square feet of Rentable Area on the 9th floor of the Building (the
"3,522 9th Floor Space"), (ii) Tenant hereby assigns to Landlord all of Tenant's
rights under the Agreement of Sublease dated March 4, 1992, Addendum No. 1 dated
March 4, 1992, Addendum No. 2 dated March 4, 1992, Addendum No. 3 dated November
30, 1992, Addendum No. 4 dated June 15, 1993 and Agreement dated as of October
17, 1994 attached thereto between Tenant, as sublandlord, and ▇▇▇▇▇, Rothman,
Goldstein, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, Chartered, as subtenant (the "▇▇▇▇▇ Sublease")
relating to 4,266 square feet of Rentable Area on the 9th floor of the Building
(the "4,266 9th Floor Space"), (iii) Landlord assumes all of Tenant's
obligations under the ▇▇▇▇▇▇▇ Sublease and the ▇▇▇▇▇ Sublease accruing on and
after the Court Approval Date (but not for the period prior thereto), and (iv)
Tenant shall cease to have any rights or obligations with respect to the 3,522
9th Floor Space and the 4,266 9th Floor Space except for obligations with
respect to such space accruing under the Lease prior to the Court Approval Date.
In connection with the foregoing assignments, Tenant hereby transfers to
Landlord the full amount of the security deposit paid by ▇▇▇▇▇▇▇ under the
▇▇▇▇▇▇▇ Sublease, together with all interest earned or required to be paid
thereon, in accordance with the terms of the ▇▇▇▇▇▇▇ Sublease to the extent that
such security deposit has not been returned to the subtenant or applied as rent
pursuant to the provisions of the ▇▇▇▇▇▇▇ Sublease ("▇▇▇▇▇▇▇ Deposit").
(b) POST-COURT APPROVAL DATE ADJUSTMENT. Within thirty (30) days after
the Court Approval Date an appropriate adjustment shall be made between Landlord
and Tenant to reflect any rent and additional rent (if any) received by Tenant
from the tenant under the ▇▇▇▇▇▇▇ Sublease and the ▇▇▇▇▇ Sublease attributable
to the period on or after the Court Approval Date (which shall be credited to
Landlord) and any rent and additional rent (if any) paid by Tenant to Landlord
with respect to the 3,522 9th Floor Space and 4,266 9th Floor Space attributable
to the period on and after the Court Approval Date (which shall be credited to
Tenant) and the net amount of such adjustment shall be paid to the party
entitled thereto prior to the expiration of such thirty (30) day period.
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(c) 3,240 9TH FLOOR SPACE. As of 5:00 p.m. on July 31, 1995, time being
of the essence, the Lease with respect to the 3,240 9th Floor Space only shall
be terminated and Tenant shall deliver possession of such space to Landlord,
without the necessity of demand or notice by either Landlord or Tenant. As of
the date of such termination and delivery of possession, both Landlord and
Tenant shall be released from any further obligations and liabilities to the
other with respect to the 3,240 9th Floor Space (but not as to obligations and
liabilities for the period prior thereto). Nothing herein shall modify or waive
any rights and obligations of the Landlord and the Tenant with regard to the
remainder of the Premises and the Storage Space. Upon such termination and
delivery of possession, all rental and other items in the Lease determined by
means of a calculation based on the square feet of Rentable Area in the Premises
shall be adjusted appropriately to reflect the decrease in the number of square
feet in the Rentable Area of the Premises for the period following termination
and delivery of possession (but such adjustment shall not affect any obligations
and liabilities for the period prior to such termination and delivery of
possession).
(d) TENANT INDEMNITY. Tenant hereby agrees to indemnify Landlord and hold
Landlord harmless for any damages, liabilities, costs or expenses (including
reasonable attorneys' fees and costs) arising from or with respect to any and
all liabilities and obligations of the Tenant as "sublessor" under the ▇▇▇▇▇▇▇
Sublease and/or the ▇▇▇▇▇ Sublease accruing before the Court Approval Date;
provided, however, such indemnity shall not apply to any liabilities or
obligations of Tenant as "sublessor" before the Court Approval Date to the
extent Tenant's nonperformance of such liabilities or obligations is directly
attributable to the failure of the Landlord to provide services or perform
obligations required of it under Tenant's lease with Landlord.
(e) SUBLEASE TERMINATIONS. In the event on or before the Court Approval
Date Landlord executes a lease amendment with ▇▇▇▇▇ to lease the space covered
by the ▇▇▇▇▇ Sublease and/or a lease amendment with ▇▇▇▇▇▇▇ to lease the space
covered by the ▇▇▇▇▇▇▇ Sublease, at Landlord's request, Tenant agrees, in lieu
of assigning the ▇▇▇▇▇ Sublease and/or the ▇▇▇▇▇▇▇ Sublease, as applicable, to
Landlord, to enter into termination agreements with ▇▇▇▇▇ and ▇▇▇▇▇▇▇, as the
case may be, terminating the ▇▇▇▇▇ Sublease and the ▇▇▇▇▇▇▇ Sublease effective
as of the Court Approval Date and only if the Court Approval Date occurs. In
the event of the full execution of a termination agreement of the applicable
sublease by ▇▇▇▇▇ and/or ▇▇▇▇▇▇▇, as the case may be, Landlord and Tenant, the
foregoing assignment and assumption of, and corresponding indemnity by Tenant
with respect to, the applicable sublease shall be null and void and of no effect
and Landlord shall return the ▇▇▇▇▇▇▇ Deposit to Tenant or Landlord, if Tenant
so directs.
(f) TENANT REPRESENTATIONS. Tenant represents and warrants to landlord
that Tenant has delivered true and complete copies of the ▇▇▇▇▇▇▇ Sublease and
▇▇▇▇▇ Sublease (collectively, the "Subleases") to Landlord and neither of the
Subleases has been further amended or modified
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in any respect. Tenant has not assigned, transferred, sold or encumbered the
Subleases or any interest therein or any right to receive the rents, profits or
proceeds arising therefrom.
11. TERMINATION OPTION. Tenant shall have the right to terminate this Lease
with respect to all or part of the Lower Floors Space effective as of 11:59 p.m.
on December 31, 1999 (the "Termination Date"), subject to the following terms
and conditions. Tenant may exercise such right only by delivering to Landlord
no later than June 30, 1999 written notice of termination (the "Termination
Notice") which delineates in reasonable detail which parts, or all, of the Lower
Floors Space shall be subject to this termination right. The effectiveness of
such exercise of this termination right shall also be conditioned upon the
delivery to Landlord on or prior to the Termination Date of: (a) possession of
that portion of the Premises to be terminated as identified in the Termination
Notice; and (b) a termination payment in an amount equal to fifty percent (50%)
of the Improvement Allowance paid by Landlord to Tenant in connection with the
space being so terminated (the "Termination Payment"). Such Termination Payment
shall be in addition to, and not in lieu of, the payments of Base Rent (as
escalated), Additional Rent and other charges due or payable under the Lease for
the period prior to the Termination Date (whether or not due and payable until
after termination). In the event Tenant fails to provide the Termination Notice
on or before June 30, 1999, then all rights of Tenant under this section to
exercise this termination right shall immediately lapse and be of no further
force or effect. Upon such termination, all rental and other items in the Lease
determined by means of a calculation based on the Rentable Area in the Premises
for the period following the termination shall be adjusted appropriately to
reflect the decrease in the Rentable Area of the Premises (but such adjustment
shall not affect any obligations and liabilities for the period prior to such
termination and delivery of possession).
12. OPTION TO RENEW. Article 27 ("Renewal Options") is hereby deleted and the
following substituted therefor:
"SECTION 27.1. Tenant shall have and is hereby granted the option
(the "Extension Option") to extend the Term, with respect to all or any
part of the Premises designated by Tenant (except that if less than all of
the Premises is designated by Tenant, Tenant's designation of any space on
any floor of the Building must include all of the space on such floor of
the Building then included in the Premises), for up to two (2) consecutive
periods of five (5) additional Lease Years each (together referred to as
the "Extension Periods" and individually referred to as an "Extension
Period") provided (i) Tenant gives written notice to Landlord of its
election to exercise such extension option no later than December 31, 2003
with respect to the first Extension Option, and no later than December 31,
2008 with respect to the second Extension Option, (ii) as to the second
Extension Option only, Tenant has exercised the first Extension Option, and
(iii) the Lease is in full force and effect.
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SECTION 27.2. All terms and conditions of this Lease shall remain in
full force and effect during the Extension Period, except that Annual Base
Rent payable during each Extension Period shall be ninety-five percent
(95%) of the respective current fair market rental rate as of the first day
of the calendar year immediately preceding such Extension Period with
respect to comparable space in comparable buildings of comparable age and
condition which are located in the central business district of Bethesda
without taking into account concessions or allowances being offered for new
leases but taking into account concessions or allowances, if any, being
offered for renewal leases for equivalent periods of time, the escalations
of the Base Rent during the Extension Term pursuant to Section 4.2 of the
Lease and the adjustment in the Operating Cost Factor set forth below at
the time of the commencement of the applicable Extension Period (the
"Market Rate") with subsequent escalations of Base Rent for each year after
the first year of such Extension Period to be determined in accordance with
Section 4.2 of the Lease. Additionally, the Operating Cost Factor during
each Extension Period shall be the quotient derived by dividing the Annual
Operating Costs for the calendar year in which the applicable Extension
Period commences by the Rentable Area of the Building, and no Tenant's
Operating Costs Amount shall be payable with respect to the first calendar
year of each such Extension Period.
SECTION 27.3. Landlord shall provide Tenant with written notice of
Landlord's determination of the Market Rate (as defined below) not later
than June 30, 2003 with respect to the first Extension Period, and no later
than June 30, 2008 with respect to the second Extension Period. Landlord
and Tenant shall negotiate in good faith to determine the amount of the
Market Rate for the applicable Extension Period within thirty (30) days of
the date of Tenant's receipt of Landlord's determination of the Market
Rate. In the event Landlord and Tenant are unable to agree upon the Market
Rate for any such Extension Period within said thirty (30)-day period, or
by July 31, 2003 with respect to the first Extension Period or by July 31,
2008 with respect to the second Extension Period if Landlord fails to
designate a Market Rate within the aforesaid time requirements, the
determination of the Market Rate for the applicable Extension Period shall
be submitted to a board of three (3) licensed real estate brokers, one of
whom shall be named by Landlord, one by Tenant, and the two so appointed
shall select a third. Each member of the board of brokers shall be
licensed in the State of Maryland as a real estate broker, specializing in
the field of commercial office leasing in metropolitan Washington, D.C.,
including Bethesda, Maryland, having no less than ten (10) years'
experience in such field. Landlord and Tenant agree to make their
appointments promptly within five (5) days after the expiration of the
thirty (30)-day period, or applicable date for appointment of such brokers,
or sooner if mutually agreed upon, and if either party fails to appoint a
broker within such time period, the other party may appoint such broker.
The two brokers selected by Landlord and Tenant shall promptly select a
third broker within ten (10) days after they both have been
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appointed, and each broker, within fifteen (15) days after the third broker
is selected, shall submit his or her determination of said Market Rate.
The Market Rate shall be the determination of the Market Rate by the broker
that is not the highest or the lowest of the three (3) brokers. Landlord
and Tenant shall each pay the fee of the broker selected by it, and they
shall equally share the payment of the fee of the third broker, which shall
be based on a reasonable hourly basis plus costs. On or before the
applicable date set forth in Section 27.1(i), above, Tenant shall have the
right to exercise the applicable Extension Option and if Tenant so
exercises such option then the Market Rate shall be as agreed to by
Landlord and Tenant or, if no such agreement was reached, as determined by
the brokers in accordance with the terms of this Section 27.3.
SECTION 27.4. Landlord and Tenant shall enter into an amendment
modifying this Lease to set forth the Base Rent for the Premises during the
applicable Extension Period within ten (10) days after the date Tenant has
exercised the applicable Extension Option."
13. EXPANSION OPTION. Article 29 ("Right of First Offering") of the Lease is
hereby deleted and the following substituted therefor:
"ARTICLE 29. EXPANSION OPTION
SECTION 29.1. Subject to Section 29.4, in the event that Rentable
Area (other than the Premises) anywhere in the Building excluding retail
space (the "Expansion Space") from time to time becomes available during
the period commencing on the date hereof until the end of the Term, and
provided this Lease is in full force and effect, Tenant shall have the
option (the "Expansion Option") to lease such Expansion Space on the terms
and conditions hereinafter set forth. Landlord shall send notice in
writing (the "Expansion Notice") to Tenant specifying the location and
configuration of such Expansion Space and the date on which the Expansion
Space is scheduled to become available for occupancy, provided, that in no
event shall Landlord send an Expansion Notice to Tenant more than twelve
(12) months prior to the time at which the space which is the subject of
such Expansion Notice is scheduled to become available for occupancy. Each
Expansion Option shall be exercisable by Tenant giving written notice to
Landlord of the exercise of the particular Expansion Option within thirty
(30) days after Landlord sends the applicable Expansion Notice. Landlord
and Tenant shall enter into an amendment modifying this Lease to add the
Expansion Space to the Premises, adding the Expansion Base Rent for the
Expansion Space, within ten (10) days of the date Tenant exercises its
Expansion Option in accordance with the terms hereof, which shall be
co-terminous with the remaining Term of the Lease. Tenant shall lease the
Expansion Space on the same terms and conditions as the Premises except
that:
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(a) The annual Base Rent for the Expansion Space shall equal the
product of (i) the Rentable Area of the Expansion Space and (ii) an amount
equal to Twenty-two and 50/100 Dollars ($22.50), as escalated in accordance
with Section 4.2 of the Lease ("Expansion Space Base Rent") as of the
Expansion Commencement Date (as hereafter defined). For example, if, on
the first day of the third (3rd) Lease Year, Tenant expands the Premises to
include certain Rentable Area on the fourth (4th) floor of the Building,
the Base Rent per square foot of Rentable Area in such Expansion Space
shall be Twenty-three and 41/100 Dollars ($23.41). The Expansion Space
Base Rent shall escalate thereafter during the remainder of the Term in
accordance with the terms of Section 4.2 of the Lease; and
(b) upon the later of the Court Approval Date or the Expansion
Commencement Date (as hereafter defined), Landlord shall pay to Tenant an
amount ("Expansion Allowance") which shall equal an amount determined by
MULTIPLYING (1) the product of One Dollar ($1.00) and the number of square
feet in the Rentable Area of the applicable Expansion Space BY (2) a
fraction, the numerator of which is the number of months between the
Expansion Commencement Date and the Expiration Date (without regard to any
renewal option being exercised) and the denominator of which is one hundred
twenty (120). Payment of the Expansion Allowance to Tenant is also
conditioned upon the Tenant not objecting to, or raising any new conditions
or requirements with respect to, the Settlement Agreement, the Joint Plan,
the Travelers' Plan and/or any other transfer of the Building to Travelers
or its designee, and the assignment and assumption of the Lease in
accordance with the terms of the Joint Plan, the Travelers' Plan and/or any
other transfer of the Building to Travelers or its designee, including,
without limitation, the assignment of the Lease to Travelers, or its
designee, pursuant thereto on the Effective Date, except in the event and
to the extent that Tenant is permitted to do so under the last sentence of
Section 3(b)(iii) of Amendment No. 5 to Lease Agreement.
In the event that Tenant does not exercise any such Expansion Option
and execute an amendment to the Lease within the time periods required by
this Section 29.1, Landlord shall be free to lease the Expansion Space that
was the subject of such Expansion Option to any other party on such terms
and conditions that Landlord determines in Landlord's sole discretion, but
Tenant's option rights under this Section 29.1 shall continue in full force
and effect with respect to any Expansion space thereafter becoming
available for lease in accordance with this Article 29 (including any
Expansion Space that Tenant did not elect to lease that subsequently
becomes available for leasing after Landlord's leasing of such Expansion
Space) unless Tenant fails to execute an amendment to the Lease.
SECTION 29.2. On the date of delivery of possession of the Expansion
Space to Tenant (but not earlier than the date on which Landlord previously
advised Tenant such
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Expansion Space would be available) ("Expansion Commencement Date"), such
space shall be added to and constitute a part of the Premises. Tenant
shall accept the Expansion Space in its "as is" condition and Tenant's
obligation to pay rent with respect to the Expansion Space shall commence
on the date of delivery of such space by Landlord to Tenant (but not
earlier than the date on which Landlord previously advised Tenant such
Expansion Space would be available). Landlord shall have no obligation to
make any alterations, decorations, additions or improvements in or to the
Expansion Space. Tenant shall not make any alterations, installations,
additions or improvements to the Expansion space unless Tenant complies
with Section 8.2.2, Article 14 and all other applicable provisions of this
Lease.
SECTION 29.3. If Landlord is unable to deliver possession of any
Expansion Space to Tenant for any reason or condition beyond Landlord's
control, including, without limitation, the failure of an existing tenant
to vacate such space, Landlord shall not be liable for any claims, damages
or liabilities in connection therewith or by reason thereof. In such
event, Landlord shall use its reasonable efforts to (a) make such space
available to Tenant at the earliest possible time or (b) cause such
existing tenant(s) to vacate such Expansion Space at the earliest possible
time, and the Expansion Commencement Date shall not occur until Landlord is
able to deliver possession of the Expansion Space to Tenant. If Landlord
is unable to deliver possession of the Expansion Space to Tenant within
ninety (90) days after the date on which Landlord previously advised Tenant
such Expansion Space would be available, Tenant shall have the right, at
its option, to terminate its obligation to lease such Expansion Space upon
giving Landlord written notice thereof prior to the expiration of such
ninety (90) day period. Tenant's rights to lease such Expansion Space
shall automatically and immediately terminate upon giving such notice to
Landlord.
SECTION 29.4. Tenant's option rights under this Article 29 shall be
subject and subordinate to (i) any option granted by Landlord to another
tenant of the Building contained in the original lease executed by Landlord
and such other tenant that permits such other tenant the right to expand
its leased premises to add additional space whose location is specifically
described in such original lease at a particular time (such as, for
example, an option in the original ten (10) year lease of a tenant leasing
seventy-five percent (75%) of the fourth (4th) floor to lease the remainder
of the fourth (4th) floor effective in the fifth (5th) lease year), but
Tenant's rights under this Article 29 shall be superior to any other rights
of first offering or first refusal granted to any other tenant of the
Building (except as set forth hereafter in clauses (ii) and (iii)), (ii)
the right or obligation of ▇▇▇▇▇, Rothman, Goldstein, ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇,
Chartered ("▇▇▇▇▇") to expand or a right of first offering with respect to
any space coming available on the sixth (6th) floor of the Building, which
right or obligation exists or shall exist under the terms of ▇▇▇▇▇'▇ lease
on or before December 31, 1995, (iii) the right of Watkins, Meegan, ▇▇▇▇▇ &
Company, LLC ("▇▇▇▇▇▇▇") to an option to expand or a right of first
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offering with respect to any space coming available on the ninth (9th)
floor of the Building which right exists or shall exist under the terms of
▇▇▇▇▇▇▇' lease on or before December 31, 1995, and (iv) the right of ▇▇▇▇,
▇▇▇▇▇ & ▇▇▇▇▇▇ to a right of first offering with respect to any space
coming available on the sixth (6th) floor of the Building which right
exists under the term of such tenant's lease prior to the Retroactive
Date."
14. REPAIR WORK. Subject to the provisions of Article 7 of the Lease ("Fire
and Other Casualty") which shall control in the event of any inconsistency
herewith, Landlord agrees to make such repairs as are necessary to cause the
Premises to be watertight and to repair any damage to the Premises or its
contents caused by water leakage into the Premises from the exterior of the
Building or from the interior of the Building if it originated from the exterior
and whether it originated before or after the date of execution of this
Amendment (collectively, the "Repair Work"). Tenant acknowledges that Landlord
is in the process of conducting various tests and investigations for purposes of
identifying the nature, sources and scope of water leakage affecting the
Building, including the Premises, and various methods for effecting the Repair
Work, which testing and investigation is expected to be completed within ninety
(90) days from the date hereof or such longer period of time as may be agreed to
by Landlord and Tenant in their reasonable discretion ("Investigation Phase").
Landlord agrees to perform the Repair Work with reasonable promptness, taking
into account the time required by Landlord for the Investigation Phase and any
delays caused by acts of God, strikes, and similar causes beyond Landlord's
reasonable control or arising from any conduct or actions of Tenant. Landlord
further agrees to cause the Repair Work to be performed in a manner which
minimizes to the extent reasonably feasible the level of disruption of the
Tenant's business during "Normal Business Hours," defined herein to mean the
business hours of 8:30 a.m. to 5:30 p.m., weekdays Monday through Friday
excluding federal holidays and any additional holidays observed by Tenant. To
that end, Landlord agrees: (a) prior to commencement of the Repair Work, to
advise and consult in a reasonable manner with Tenant in developing a master
schedule for the timing of the Repair Work to be performed in or directly
impacting the Premises; (b) from and after Landlord's development of the master
schedule, to provide Tenant with a weekly update to the master schedule to the
extent the same relates to the Repair Work to be performed in or directly
impacting the Premises, such update to be delivered to Tenant no later than
Thursday of the week prior to the week in which the work described in the update
is to be performed; (c) to perform the Repair Work in the interior of the
Premises, to the extent reasonably feasible at times other than Normal Business
Hours and otherwise in accordance with the master schedule, updated as
aforesaid; (d) to take such actions as may be necessary to ensure that the
leasehold improvements and all of Tenant's property are protected from damage
caused by the Repair Work; (e) if and to the extent the seal between the
Premises and the exterior of the Building, including windows, must be removed
and/or replaced, such removal and replacement shall occur at times other than
Normal Business Hours; provided, however, that such removal and replacement may
occur at times during Normal Business Hours if such removal and replacement in
any area is accomplished within two (2) workdays for such area,
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such work is sufficiently staggered for different areas so that at each time a
minimum number of persons are inconvenienced thereby, reasonable advance notice
thereof (which may include the notice provided by the master schedule and
updates thereto) is given to Tenant so that such removal and replacement can be
accomplished at a time reasonably convenient for the occupants of such area and
during such period of removal and replacement of the interior of the Premises,
exclusive of an interior perimeter zone measuring up to five feet from the
Building exterior, shall be sealed from the outside environment by construction
of temporary partitions or other reasonable suitable means for such purposes;
(f) to respond promptly to all reasonable requests of Tenant for information
(provided Landlord shall not be obligated to make any out-of-pocket expenditures
or conduct any additional testing or investigations for such purposes) regarding
the nature and progress of the Repair Work; and (g) not to deprive employees of
Tenant of the use of their offices or work areas during Normal Business Hours
except to the extent permitted by clauses (c) and (e) of this sentence.
Landlord is hereby granted access to the Premises for purposes of conducting the
matters described in the Investigation Phase and for performing the Repair Work.
Landlord shall be entitled to do all things necessary or appropriate in and
directly impacting on the Premises for carrying out the matters described in the
Investigation Phase and performing the Repair Work in accordance with the master
schedule, updated as aforesaid, including the construction of temporary
partitions for the purposes described above within the perimeter zone and
otherwise as may be necessary or appropriate to minimize disruption to the
Tenant's business. Tenant agrees to cooperate with all reasonable requests of
Landlord related to the matters described herein (provided Tenant shall not be
obligated to make any out-of-pocket expenditures). If Landlord materially
breaches its obligations and covenants herein and fails to cure such breach in
all material respects within sixty (60) days, or such longer period of time as
may be reasonably necessary so long as Landlord is continuously and diligently
pursuing such cure, after written notice thereof (specifying each breach with
particularity) is given by Tenant to Landlord in accordance with the notice
provisions hereof, and provided Tenant has not exercised its option to terminate
this Lease pursuant to Section 36 of this Amendment, Tenant shall be entitled to
recover from Landlord all Actual Damages (hereinafter defined) caused thereby,
plus reasonable costs of collection, and in any such action, the prevailing
party shall be entitled to recover from the other party reasonable attorneys'
fees and expenses. Provided Tenant does not exercise its termination option
under Section 36 of this Amendment (but not otherwise), "Actual Damages" means
any actual damages sustained by Tenant for the period from and after April 15,
1996 (including without limitation loss of use damages and diminished rental
value damages), but excluding special, consequential, punitive, lost profits and
loss of business damages.
15. ASSIGNMENT AND SUBLETTING. Notwithstanding any assignment or subletting
permitted under the Lease or consented to by Landlord, it is understood that
Tenant shall remain primarily liable as a principal (and not as a guarantor or
surety) under the Lease and the consent of Landlord (if any) herein or at any
other time to any subletting of all or part of the Premises or assignment of the
Lease shall not modify, diminish, waive or discharge any of Tenant's covenants
and obligations under the Lease, or any other terms and provisions of the Lease.
B-69
16. UTILITIES AND SERVICES.
(a) HVAC. Section 8.1.1(b) of the Lease is hereby deleted and the
following substituted therefore: "(b) heating and air conditioning for the
comfortable use and occupancy of the Premises between 8:00 a.m. and 6:00 p.m.,
Mondays through Fridays, and 8:00 a.m. and 1:00 p.m. on Saturdays [except for
the holidays set forth on Exhibit E ("Holidays")] ("Building Hours"), and
Landlord shall maintain the heating and air conditioning system so that the
temperature in the Premises does not exceed seventy-five (75) degrees Fahrenheit
with fifty percent (50%) relative humidity in the summer and is not lower than
seventy (70) degrees in the winter during the aforesaid hours."
(b) PRORATION. Tenant shall pay the cost of heating and air-conditioning
for any times requested by the Tenant other than for Building Hours within five
(5) days after Landlord gives notice of such amounts owed by Tenant. If Tenant
engages Landlord to furnish special services to Tenant beyond services provided
generally to tenants in the Building and included in Annual Operating Costs,
Tenant shall pay for such services in accordance with the agreement executed by
Landlord and Tenant for the provision of such special services. Landlord agrees
to prorate the cost of such heating and air-conditioning services if Tenant is
on a multi-tenant floor and the other tenant(s) within the same zone as Tenant
have requested the same services for the same time.
(c) HOLIDAYS. The Holidays listed on Exhibit E are hereby deleted and the
following Holidays shall be substituted therefor: New Year's Day, Memorial Day,
Fourth of July, Labor Day, Thanksgiving and Christmas.
(d) JANITORIAL SERVICE. Any janitorial service to be provided by Landlord
under the terms of Section 8.1.1(c) of the Lease shall be provided on weekdays
only, exclusive of Holidays. Notwithstanding anything to the contrary in the
Lease, in the event janitorial services are not being provided in a manner
comparable to that provided for comparable first-class buildings in the
metropolitan Washington, D.C. area and pursuant to Exhibit F to the Lease, and
Tenant has provided Landlord written notice thereof and sixty (60) days in which
to cure such default, during which sixty (60) day period Landlord has failed to
cure the same to Tenant's reasonable satisfaction, then, upon prior written
notice to Landlord, Tenant shall have the right to employ its own janitorial
company to clean the Premises and to collect and remove waste products in
accordance with the applicable laws and regulations. In such case, (1) Landlord
shall have the right, in its reasonable discretion, to approve such janitorial
company and set reasonable rules and regulations in connection with such
janitorial company's access to and use of the Building, (2) Landlord's
obligation set forth in Section 8.1.1(c) of the Lease shall cease on and after
the date Tenant gives written notice of its election to employ its own
janitorial company (unless Tenant thereafter requests, in writing, that Landlord
provide such services again) and (3) on or after the date Tenant's janitorial
company commences providing janitorial services for the Premises, Annual
Operating Costs shall not include expenses for janitorial
B-70
services and cleaning supplies in connection with the space which is leased or
leasable to other tenants in the Building (specifically excluding common areas),
provided, however, in the event Tenant thereafter requests, in writing, that
Landlord provide such janitorial services again, then Annual Operating Costs
shall include such expenses. Tenant shall indemnify and hold harmless Landlord
for all acts and omissions of Tenant's janitorial company and its agents,
employees and invitees and any damages, costs, expenses, liabilities and
lawsuits arising therefrom, including reasonable attorneys' fees and expenses of
Landlord.
(e) REPLACEMENT OF BULBS. Section 8.1.1(g) of the Lease is hereby
modified to reflect that Landlord's obligation to replace lamps and ballasts
shall apply to all incandescent and fluorescent light bulbs, whether or not
Building standard. The costs thereof shall be part of Annual Operating Costs.
(f) KEYS OR CARDS. After the Retroactive Date, Landlord agrees to provide
Tenant with three (3) security access cards or keys for each 1,000 square feet
of net additional Rentable Area leased by Tenant during the Term. Tenant shall
have the right to purchase additional access cards or keys at Landlord's direct
cost.
17. TENANT DEFAULT. Section 9.5 of the Lease is hereby amended to add the
following: "; provided, however, if no first deed of trust exists, then
subclause (a) shall apply."
18. NOTICE TO FIRST MORTGAGE LENDER. Tenant hereby agrees that Tenant shall
not exercise its rights or remedies under this Lease upon a default by the
Landlord without first giving written notice of such default to Landlord's first
mortgage lender, to the extent such lender has been identified to Tenant with an
address, and shall grant to such lender a reasonable period of time after the
giving of such notice to cure such default (which reasonable time period shall
be deemed to be fifteen (15) days in the case of a Failure Notice delivered
pursuant to Section 9(e) or Section 21 of this Amendment), no obligation on the
part of such lender to cure any default by Landlord being implied hereby.
Tenant is hereby notified that, as of the date of the Amendment, Landlord's
first mortgage lender is Travelers and such notice should be sent to Travelers
at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, N.E., Building 500, Suite 1420, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
in accordance with the terms of Article 19 of the Lease ("Notices").
19. LIABILITY.
(a) LANDLORD. Section 20.11.4 of the Lease is hereby deleted and the
following substituted therefor:
"Notwithstanding any provision to the contrary contained in this Lease,
Tenant shall look solely to the estate and property of Landlord in and to
the Land and the Building in the event of any claim against Landlord and/or
its partners, officers, directors and employees arising out of or in
connection with this Lease, the relationship of Landlord
B-71
and Tenant, and/or Tenant's use of the Premises, and Tenant agrees that the
liability of Landlord and/or its partners, officers, directors and
employees arising out of or in connection with this Lease, the relationship
of Landlord and Tenant, and/or Tenant's use of the Premises, shall be
limited to such estate and property of Landlord in and to the Land and the
Building. No properties or assets of Landlord other than the estate and
property of Landlord in and to the Land and the Building and no property
owned by any partner, officer, director or employee of Landlord shall be
subject to levy, execution or other enforcement procedures for the
satisfaction of any judgment (or other judicial process) or for the
satisfaction of any other remedy of Tenant arising out of or in connection
with this Lease, the relationship of Landlord and Tenant and/or Tenant's
use of the Premises."
(b) TRAVELERS. Notwithstanding the terms of Section 20.11.3 of the Lease,
in the event Travelers or any designee of Travelers becomes the owner of the
Building and the Land, by foreclosure, deed in lieu of foreclosure or otherwise,
Travelers or its designee shall not be liable for any damages or be subject to
any off-set or defense of Tenant to the payment of Base Rent or Additional Rent
by reason of any act or omission of Landlord prior to the date that Travelers or
its designee succeeds to the interest of Landlord under this Lease other than
any offset provided for in Section 9(e) of this Amendment and, only as to such
matters as may arise after Travelers, or its designee, takes title to the
Building, under Section 21 of this Amendment, but the foregoing shall not be
construed to relieve Travelers or its designee of its obligations to perform all
obligations under the Lease during the period after Travelers or its designee
succeeds to the interest of Landlord, subject to the terms of Section 20.11.4 of
the Lease. For purposes of this Amendment, the term "Travelers or its designee"
or "Travelers, or its designee" shall mean Travelers and/or the initial
transferee of the Building pursuant to the Joint Plan or Travelers' Plan or
otherwise pursuant to the loan documents evidencing and securing Travelers' lien
on the Building.
20. PARKING. Section 26.1 of the Lease is hereby deleted and the following
substituted therefor:
"SECTION 26.1.1. Landlord shall provide or require that any parking garage
operator shall offer to Tenant, and Tenant agrees to accept, one hundred
and fifty (150) permits for parking spaces in the parking garage of the
Building. Of such permits, ninety (90) permits shall be for non-tandem
spaces and sixty (60) permits shall be for tandem spaces. All of the
parking spaces related to such one hundred fifty (150) parking permits
shall be marked for Tenant's use and Landlord shall use, or cause its
parking garage operator to use, reasonable efforts to maintain such spaces
free from unauthorized parking. Landlord shall also provide or require
that any garage operator shall offer to Tenant no fewer than two (2)
additional monthly parking contracts, with one (1) applicable to a tandem
space and one (1) applicable to a non-tandem space, for each one thousand
(1,000) square feet of Rentable Area in any Expansion Space leased
B-72
by Tenant pursuant to any right granted in Article 29 hereof, which parking
contracts Tenant shall have the option, but not the obligation, to accept
in whole or in part by written notice to Landlord prior to the expiration
of ninety (90) days after the applicable Expansion Commencement Date.
Three (3) of the non-tandem spaces shall be in a contiguous grouping on the
first (1st) parking level of the Building, of which one (1) space shall be
of handicapped size. The rest of the parking shall be on the third (3rd)
and fourth (4th) parking levels of the Building in a contiguous group, but
such contiguity requirement shall be subject however to the rights of
certain existing tenants under their leases which exist as of the date
hereof ("Existing Rights"). Landlord agrees to install prominent signage
in the drive isle on the third (3rd) and fourth (4th) parking levels of the
Building indicating that the parking beyond such point is reserved, subject
to the Existing rights. In the event that Tenant exercises its option
pursuant to Section 11 of this Amendment to terminate this Lease with
respect to all or part of the Lower Floors space, the amount of permits for
parking spaces in the garage that Tenant is entitled and obligated to use
shall be reduced by an amount equal to two (2) monthly parking contracts
(all of which shall be applicable to tandem space) for each one thousand
(1,000) square feet of Rentable Area in any Lower Floor Space with respect
to which such termination option has been exercised, which reduction shall
be effective as of the Termination Date pursuant to Section 11 of such
Lower Floor Space.
SECTION 26.1.2. Tenant shall pay, as Additional Rent, the prevailing
monthly parking rate charged from time to time by Landlord or the
applicable parking garage operator, which is currently Seventy-five Dollars
($75.00) per parking contract. The monthly parking rate shall not be
escalated more than once in any twelve (12) month period, and said
escalation shall not exceed three percent (3%) of the monthly parking rate
applicable during the immediately preceding twelve (12) month period."
21. TENANT'S RIGHT OF SET OFF. If (i) Landlord has failed to pay to Tenant, as
and when due, any monies due the Tenant which are required to be paid in
accordance with the terms of the Lease, including, without limitation, any
amounts payable by Landlord to Tenant pursuant to Section 14 of this Amendment
(such unpaid amounts being referred to as the "Overdue Amount(s)"), which
Overdue Amount(s) remain unpaid after delivery of a Failure Notice to the Notice
Parties and after the expiration of fifteen (15) days following delivery to all
of the Notice Parties of such notice from Tenant, during which fifteen (15) day
period none of the Notice Parties pays such Overdue Amount(s) to Tenant in
accordance with the terms of the Lease, and (ii) a court of competent
jurisdiction has determined that the Overdue Amount(s) are due and payable by
Landlord under the terms of the Lease, provided that an applicable appellate
court has not stayed Tenant's exercise of such right of set off, then Tenant
shall have the right to set off against any Base Rent or Tenant's Operating
Costs Amount due under the Lease such amount not paid by Landlord plus interest
thereon at the Interest Rate. The foregoing interest shall be calculated from
the date such amount was originally due through the earlier of the date on which
such amount is reimbursed by any of the Notice Parties or the date on which such
amount is
B-73
credited against Base Rent or Tenant's Operating Costs Amount as set forth
above. The Failure Notice shall include a statement that Tenant intends to
exercise this right to set off and shall identify in reasonable detail the basis
for the offset and the date on which such amounts should have been paid to
Tenant. In the event Landlord prevails in any dispute following Tenant's
exercise of its set off rights, Tenant shall then pay Landlord, in addition to
the amount so set off and attorneys' fees and expenses, interest thereon at the
Interest Rate calculated from the date of such set off until the date Tenant
actually reimburses Landlord therefor. The provisions of this Section 21 shall
not apply with respect to the Improvement Allowance since the provisions of
Section 9(e) of this Amendment shall apply with respect thereto.
22. ACCESS.
(a) ROOF. Landlord agrees to provide Tenant with reasonable advance
notice of its need to access the roof and/or penthouse of the Building through
the Premises, except in the case of emergencies.
(b) FACSCARDS. Except for the property management staff and the char
service supervisor, Landlord agrees not to provide FacsCards permitting entry to
the Premises to anyone without Tenant's prior consent, which shall not be
unreasonably withheld, conditioned or delayed for purposes of landlord's
performance of the Repair Work. Landlord shall provide Tenant a list of all
such property management staff and persons who have FacsCard access to the
Premises and shall advise Tenant promptly of any changes to the persons on such
list.
23. NONDISTURBANCE. Sections 17.1 and 17.4 of the Lease and Exhibit H of the
Lease are hereby deleted. Section 20.11.4(a) of the Lease is hereby amended to
delete the phrase "Section 17.4." A new Section 17.1 of the Lease is hereby
added as follows:
"SECTION 17.1. Landlord agrees to provide Tenant with a subordination,
non-disturbance and attornment agreement from Travelers (as defined in the
Amendment No. 5 to Lease between Landlord and Tenant) with respect to the
Lease in the form of EXHIBIT C ("Travelers Agreement"). Landlord agrees
that on and after the date of the Amendment No. 5 to Lease between Landlord
and Tenant there shall be no holders of any deeds of trust, mortgages or
other security interests (collectively, the "Superior Instruments")
covering the Building and/or the Land or any interest of Landlord therein
(collectively, the "Holders of Superior Instruments") unless Landlord
obtains and delivers to Tenant a subordination, non-disturbance and
attornment agreement executed by the Holder of such Superior Instrument in
the form of the Travelers Agreement or in the form provided by such Holder
of Superior Instrument and reasonably satisfactory to Tenant. Tenant
agrees that it shall not unreasonably withhold its consent to any
modifications to the Travelers Agreement that may be requested by the
Holder of such Superior Instrument if such modification does not adversely
affect the interests of Tenant in any material respect."
B-74
24. FIRE STAIRS. Tenant shall have the right to refurbish, at Tenant's
expense, the fire stairs in the Building, subject to the terms of Articles 8 and
14 and all other applicable provisions of the Lease, including without
limitation the reasonable approval by Landlord of any plans, drawings,
specifications prepared in connection with such refurbishment or improvements
intended to be made by Tenant in such area and compliance by Tenant of all
applicable building, fire and other codes, laws and regulations. Such fire
stairs shall remain part of the common areas of the Building and shall be
available to all of the tenants in the Building on a non-exclusive basis.
25. ARBITRATION. Article 21 ("Arbitration") of the Lease is hereby deleted and
all references in the Lease to resolving a dispute by the arbitration method
described in Article 21 shall hereafter be resolved in a court of competent
jurisdiction.
26. PURCHASE OPTION. Article 30 ("Tenant's Option to Purchase") of the Lease
is hereby deleted.
27. TENANT ESTOPPEL. Section 18.1 of the Lease shall be supplemented with the
following new sentence at the end thereof:
"If requested by Landlord, the foregoing estoppel instrument shall also
include a certification by Tenant that to the knowledge, information and
belief of Tenant, Landlord has fully performed its obligations under
Section 14 of Amendment No. 5 to Lease to the extent required prior to the
date of such estoppel (or specifying any exceptions thereto of which the
Tenant has knowledge) and such other information related to the Landlord's
obligations under Section 14 as Landlord may reasonably request."
28. 9TH FLOOR EXPANSION RIGHT. Article 28 ("Additional Space") is hereby
deleted.
29. 1ST FLOOR TERMINATION RIGHT. Section 3 of the Fourth Amendment is hereby
deleted.
30. FINANCIAL STATEMENTS. Tenant covenants and agrees that, at any time,
within thirty (30) days after written request by Landlord, Tenant will furnish
to Landlord financial statements as of the end of Tenant's last fiscal year
certified by Tenant's chief financial officer and, if available, audited by an
independent certified public accountant, and Tenant consents to the delivery of
same by Landlord to lenders or prospective lenders or purchasers of all or part
of the Building or the Land or of any interest in the deed of trust encumbering
the Building or the Land; provided, however, that (i) such request by Landlord
shall be made only if the financial statement is requested by a prospective
mortgage lender (which may include a then existing mortgage lender) seeking to
provide or extend or refinance a mortgage loan secured by all or part of the
Landlord's interest in the Building or the Land or a prospective purchaser of
all or part of Landlord's interest in the Building or the Land and such fact is
certified to in writing to
B-75
Tenant by Landlord and such prospective lender or purchaser, as the case may be,
simultaneously with or prior to such request by Landlord, and (ii) in all such
cases Landlord's request for such statements shall include the names of the
parties to whom the financial statements will be delivered ("Delivery Parties"),
and Landlord and the Delivery Parties shall agree to keep such financial
statements (and the information contained therein) strictly confidential.
Notwithstanding the foregoing, Tenant's obligation to deliver financial
statements under this Section shall not apply with respect to Delivery Parties
who are direct competitors with Tenant's business as of the date requested, as
reasonably determined by Tenant; provided, however, Tenant shall provide a
reasonably detailed written explanation to Landlord why it has made such
determination.
31. RATIFICATION. Except as expressly amended by this Amendment, all other
terms, conditions and provisions of the Lease are hereby ratified and confirmed
and shall continue in full force and effect, without modification.
32. BROKER. Tenant and Landlord represent and warrant to the other that they
have not employed any broker in connection with the subject matter of this
Amendment except for ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Inc. and The ▇▇▇▇▇ ▇▇▇▇▇▇▇ Company, who
Landlord will pay, subject to and on the Effective Date, pursuant to a separate
agreement, provided that each such broker withdraws any previously filed
objections and does not file or otherwise interpose any new objections and
consents to the Settlement Agreement, the Joint Plan, the Travelers' Plan and/or
any other transfer of the Building to Travelers or its designee, and the
assumption and assignment of this Lease pursuant thereto and there is no default
under such separate agreement. The parties agree to indemnify and hold each
other harmless from and against any claims or costs (including, without
limitation, reasonable attorneys' fees) arising out of or constituting a breach
of the representation set forth above.
33. REPRESENTATIONS.
(a) TENANT. Tenant hereby represents and warrants to Landlord that Tenant
has full power and authority to execute and perform this Amendment and has taken
all action necessary to authorize the execution and performance of this
Amendment.
(b) LANDLORD. Landlord hereby represents and warrants to Tenant that
Landlord has full power and authority to execute and perform this Amendment and
has taken all action necessary to authorize the execution and performance of
this Amendment, subject to the conditions described in Section 3(b) above.
34. MISCELLANEOUS. This Amendment (i) shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
(ii) shall be governed by and construed in accordance with the laws of the State
of Maryland. Sections 20.13, Article 23 ("Letters of Credit") and Article 25
("Acquisition of Land") of the Lease and the last paragraph
B-76
on the first page of the Third Amendment (relating to the five (5) parking
spaces that previously comprised the storage space) shall be deleted.
35. LIMITATIONS ON EXERCISE OF RENEWAL AND EXPANSION OPTIONS OR PAYMENT OF
REFURBISHING ALLOWANCE. Neither of the Extension Options referred to in Article
27 of the Lease and none of the Expansion Options referred to in Article 29 of
the Lease may be exercised by Tenant, and Landlord shall not have an obligation
to pay the Refurbishing Allowance pursuant to Section 9(d) of this Amendment if,
at the time specified in Article 27 or Article 29, as the case may be, for
exercising such option, or the time specified in Section 9(d) of this Amendment
for paying the Refurbishing Allowance, as the case may be, this Lease shall not
be in full force or effect or upon the occurrence of an Event of Default for
which Landlord has served written notice to Tenant under Section 9.2.
36. TENANT'S OPTION TO TERMINATE TERM AS OF AUGUST 31, 1996. Tenant shall have
the right, at its option, exercisable by sending written notice (the "Term
Reduction Notice") to Landlord and Travelers on or before April 15, 1995 (the
"Term Reduction Deadline Date") to change the Expiration Date of the Lease so
that the Term of the Lease shall expire on August 31, 1996 rather than December
31, 2004. In the event that Tenant sends to Landlord the Term Reduction Notice
on or before the Term Reduction Deadline Date, then the amendments to the Lease
set forth in Sections 4, 6(a), 7, 8(a), 8(b), 8(c), 9, 11, 12, 13, 20, 21 and 35
and the references to Sections 9 and 21 in Section 19 of this Amendment (the
"Term Reduction Notice Deletion Provisions") shall be null and void and of no
force and effect. Notwithstanding any other provision of this Lease, until the
date (the "Lapse Date") on which Tenant's right to send the Term Reduction
Notice expires or terminates (either by the occurrence of the Term Reduction
Deadline Date without Tenant having sent the Term Reduction Notice to Landlord
or the delivery by Tenant to Landlord and Travelers of a written notice pursuant
to which Tenant irrevocably surrenders and terminates its right to send the Term
Reduction Notice), the operation of the Term Reduction Notice Deletion
Provisions shall be suspended but such provisions shall be reinstated
retroactive to the Retroactive Date upon the occurrence of the Lapse Date.
Within fifteen (15) days after the Lapse Date or the date on which the Tenant
delivers the Term Reduction Notice, Landlord and Tenant shall execute an
appropriate amendment to this Lease which shall (i) delete this Section 36 in
the event of the occurrence of the Lapse Date or (ii) delete the Term Reduction
Notice Deletion Provisions.
37. COMMON AND PUBLIC AREAS. Landlord covenants and agrees to renovate and
refurbish the common and public areas of the Building as frequently as necessary
if and to the extent required to maintain the quality of the Building as a
first-class office building in the Washington, D.C. metropolitan area.
B-77
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Lease as of the day and year first hereinabove written.
WITNESS: LANDLORD:
COMMUNITY MOTORS PROPERTY
ASSOCIATES LIMITED PARTNERSHIP, a
Maryland limited partnership
/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇ (seal)
------------------------------- ------------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
WITNESS: TENANT:
FEDERAL DATA CORPORATION, a Delaware
corporation
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------- ------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & General Counsel
APPROVED AND CONSENTED TO:
THE TRAVELERS INSURANCE COMPANY
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ (seal)
------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:
B-78
EXHIBIT B
EXAMPLE COMPILATION STATEMENT (1)
Payroll
Administrative
Management fees
Office expenses
Professional services
Telephone
Miscellaneous
Utilities
Electricity
Water and sewer
Fuel oil
Repairs and Supplies
Building
Bulbs
Cleaning
Electric
Elevator
Fire prevention
Floor and carpet
Garage
Glass
Grounds
Hardware
HVAC
Locks and keys
Plumbing
Roofing
Signs
Miscellaneous
Maintenance Services
Custodial cleaning
-----------------------
(1) *Additional line items may be included at Landlord's option.
B-79
Elevator
Extermination
Music system
Plant maintenance
Protection services
Trash collection
Uniforms
Taxes, Insurance, and Other
Insurance expense
Licenses and permits
Real estate taxes
Total
B-80
EXHIBIT C
SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT (this
"Agreement") is made this day of March, 1995, by and among THE TRAVELERS
INSURANCE COMPANY, a Connecticut corporation, its legal representatives,
successors and assigns ("Travelers"), having an address at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
N.E., Building 500, Suite 1420, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, FEDERAL DATA
CORPORATION, a Delaware corporation ("Tenant"), having an address at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, and COMMUNITY MOTORS
PROPERTY ASSOCIATES LIMITED PARTNERSHIP ("Borrower"), having an address at c/o
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇.
WITNESSETH:
WHEREAS, Travelers is the owner and holder of that certain Consolidated and
Restated Promissory Note dated as of September 2, 1988, executed and delivered
by Borrower payable to the order of Travelers, in the consolidated and restated
principal sum of Thirty-One Million Four Hundred Thousand Dollars ($31,400,000)
(the "Note");
WHEREAS, Travelers is the beneficiary under that certain Deed of Trust and
Security Agreement and Consolidation and Modification Agreement dated as of
September 2, 1988, executed and delivered by Borrower to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as trustees for the benefit of Travelers, and recorded among
the land records of ▇▇▇▇▇▇▇▇▇▇ County, Maryland in Liber 8450, Folio 72, as
modified by a Deed of Removal and Appointment of Substitute Trustee dated
effective as of October 31, 1994, and recorded among the aforesaid land records
on November 1, 1994 (collectively, the "Deed of Trust") and the assignee under
that certain Amended and Restated Collateral Assignment of Income, Rents and
Leases dated as of September 2, 1988, executed and delivered by Borrower to
Travelers and recorded among the aforesaid land records in Liber 8450, Folio 134
(the "Assignment of Rents"). The Deed of Trust and Assignment of Rents encumber
certain real property and improvements located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, as more fully described in the Deed of Trust and
Assignment of Rents, and including without limitation, the real property
described on EXHIBIT A attached hereto (the "Property"), and secure repayment of
the Note. The Note, the Deed of Trust, the Assignment of Rents and all further
documents, certificates, affidavits and other instruments executed at any time
in connection therewith or relating to the indebtedness
C-1
evidenced and secured thereby are hereinafter sometimes collectively referred to
as the "Loan Documents";
WHEREAS, by virtue of that certain Agreement of Lease dated December 5,
1984 between Borrower, as "Landlord" therein and Tenant, as "Tenant" therein, as
amended, modified or qualified by: (a) Amendment to Agreement of Lease dated
January 7, 1985; (b) Amendment No. 2 to Lease Agreement dated November 14, 1986;
(c) Amendment No. 3 to Lease Agreement dated February 6, 1987; (d) Amendment No.
4 to Lease Agreement dated March 31, 1993; and (e) Amendment No. 5 to Lease
Agreement ("Amendment 5") dated , 1995 (collectively, and as the
same may be further amended, modified, extended, renewed, restated or replaced,
the "Lease"), Tenant has leased from Borrower 70,842 rentable square feet of
space in the Property and 726 square feet of storage space (collectively, the
"Premises"), which Premises are a portion of the Property; and
WHEREAS, Tenant desires to be assured of continued occupancy of the
Premises under the terms of the Lease.
NOW, THEREFORE, in consideration of the sum of One Dollar ($1.00) by each
party in hand paid to the other, receipt of which is hereby acknowledged, the
premises and the mutual covenants and agreements hereinafter contained, and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto, intending to be legally bound hereby,
hereby agree as follows:
1. AGREEMENT BY TENANT. Tenant hereby agrees that:
(a) subject to this Agreement, the Lease, Tenant's leasehold estate
in the Premises, and any and all estates, options, liens and charges contained
in the Lease or created thereby are, and shall be and remain, subject and
subordinate in all respects to the lien of the Deed of Trust and to all of the
terms, conditions and provisions thereof, to all advances made or to be made
thereunder, and to any renewals, extensions, modifications, consolidations,
restatements or replacements thereof, with the same force and effect as if the
Deed of Trust and any such renewal, extension, modification, consolidation,
restatements or replacement had been executed, delivered and duly recorded in
the above-mentioned land records prior to the execution and delivery of the
Lease;
(b) from time to time, upon request by Travelers, Tenant shall
provide to Travelers within ten (10) days after such request an estoppel
certificate in the form attached hereto as EXHIBIT B certifying that there exist
under the Lease no defaults, claims or offsets, or events or situations which,
with the passage of time, the giving of notice or both could become a default or
the basis for a claim or offset against Borrower by Tenant, or, if any of the
same do exist, certifying and describing such items as are in existence;
C-2
(c) Tenant will comply with its obligations under Section 18 of
Amendment 5;
(d) without the prior written consent of Travelers; (i) no rent or
other sums due under the Lease shall be paid more than thirty (30) days in
advance of the due date therefor established by the Lease; (ii) no modifications
shall be made in the provisions of the Lease without the prior written consent
of Travelers, which shall not be unreasonably withheld or delayed, nor shall the
term be extended or renewed, except as may be provided therein; (iii) the Lease
shall not be terminated by Tenant, except as may be provided therein, nor shall
Tenant tender or accept a surrender of the Lease except incident to a
termination provided for in said Lease; and (iv) Tenant shall only sublet the
Premises demised by the Lease or assign Tenant's interest in the Lease or the
Premises in accordance with the provisions of said Lease;
(e) in the event of any act or omission by Borrower which would give
Tenant the right to terminate the Lease by reason of a default by Borrower
thereunder, claim a partial or total eviction, reduce rents or credit or offset
any amounts against future rents, Tenant will not exercise such right (i) until
it shall have given written notice of such act or omission to Travelers; and
(ii) permitted Travelers a reasonable period of time following the giving of
such notice to remedy such act or omission (which reasonable time period shall
be deemed to be fifteen (15) days in the case of a "Failure Notice" (as defined
in Amendment 5) delivered pursuant to Section 9(e) or Section 21 of Amendment
5). If it so elects, Travelers shall have the right, but not the obligation, to
cure and to take any actions necessary to cure, any default by Borrower under
the Lease, including, without limitation, the right to enter the Premises in
accordance with the terms of the Lease if entry is necessary to cure such
defaults;
(f) notices required to be given to Travelers under this Agreement
will be given to any successor-in-interest of Travelers under the Deed of Trust
provided that, prior to the event for which notice is required to be given to
Travelers, Travelers and such successor-in-interest of Travelers shall have
given written notice to Tenant of the acquisition of Travelers's interest
therein, and designated the address to which such notice is to be directed;
(g) in the event that the holder of the Deed of Trust (as now or
hereafter constituted), including Travelers, or anyone claiming from or through
any such holder, shall enter into and lawfully become possessed of the Property
or the Premises, or shall succeed to the rights of Borrower under the Lease,
either through foreclosure of said Deed of Trust or otherwise: (i) Tenant shall
attorn to, and recognize, such holder including Travelers, or anyone claiming
from or through such holder, as the "Landlord" under the Lease for the unexpired
balance of the term of the Lease and any extension or renewal thereof, subject
to all of the terms and conditions of the Lease; and (ii) Tenant shall make all
payments payable by Tenant under the Lease directly to the holder of the Deed of
Trust upon such holder's written instructions to Tenant; and if, by operation of
law, or otherwise, the institution of any action or other proceedings by
Travelers or any other holder of the Deed of Trust or the entry into and taking
C-3
possession of the Premises shall result in the cancellation or termination of
the Lease or Tenant's obligations thereunder, Tenant shall, upon request by
Travelers or such holder, execute and deliver a new lease of the Premises
pursuant to the Lease, containing the same terms and conditions as the Lease,
except that the term and any extension thereof shall be the unexpired term and
unexpired extended term or terms of the Lease as of the date of execution and
delivery of said new lease and Tenant shall have the right to offset against
rent payable under such new lease any defaults of Landlord prior to the
execution of such new lease to the extent permitted by the provisions of Section
9(e) of Amendment 5 and, as to matters arising from and after Travelers, or its
designee, takes title to the Property, Section 21 of Amendment 5, as fully and
effectively as if the Lease has continued in effect. For purposes of this
Agreement, the term "Travelers or its designee" or "Travelers, or its designee"
shall mean Travelers or the initial transferee of the Property pursuant to the
Joint Plan or Travelers' Plan (each as defined in Amendment 5) or otherwise
pursuant to the Loan Documents;
(h) Tenant has no right or option, whether under the Lease or
otherwise, to purchase any portion of the Property or any interest therein, and
to the extent that Tenant has or hereafter acquires any such right or option,
the same is hereby subordinated to the Deed of Trust;
(i) Travelers shall have no responsibility, liability or obligation
to cure any defaults by Borrower under the Lease, nor be subject to claims,
defenses or offsets under the Lease or against Borrower possessed by Tenant and
which arose or existed prior to actual foreclosure of the Deed of Trust or entry
under and taking possession of the Property by Travelers. If Travelers or any
subsequent holder forecloses the Deed of Trust and enters upon and takes actual
possession of the Property, Travelers or such holder shall do so free and clear
of all such prior defaults, claims, or offsets and shall not be liable or
responsible to Tenant for any act or omission of any prior landlord (including
Borrower), or be responsible or liable for any deposit or security which was
delivered by Tenant to any prior landlord (including Borrower) but which was not
subsequently delivered to Travelers, or be subject to any claims, defenses or
offsets which Tenant might have against any prior landlord (including Borrower).
Notwithstanding the preceding two (2) sentences or any other provision in this
Agreement, the foregoing shall not be construed to release Travelers or such
holder of its obligations to perform all obligations arising under the Lease
from and after the date on which Travelers, or its designee, succeeds to the
interest of Borrower as "Landlord" under the Lease, or relieve Travelers, or its
designee, from any offset provided for in Section 9(e), and only as to matters
that may arise from and after the date on which Travelers, or its designee,
takes title to the Property, Section 21, of Amendment 5; and
(j) the institution of any action or other proceedings by Travelers
or any other holder under the Deed of Trust in order to realize upon Borrower's
interest in the Property shall not by operation of law, or otherwise, result in
the cancellation or termination of the Lease or Tenant's obligations thereunder.
C-4
2. AGREEMENTS BY TRAVELERS. Travelers hereby agrees that:
(a) so long as Tenant is not in default under the Lease (beyond all
applicable periods given Tenant under the Lease to cure such default) in the
payment of the rents and additional rents due thereunder or in the performance
of all the terms, covenants, conditions and provisions of the Lease on the part
of Tenant thereunder to be complied with and performed, (i) Tenant's possession
and occupancy of the Premises and Tenant's rights and privileges under the
Lease, or any extension or renewal thereof which may be effected in accordance
with the terms of the Lease, shall not be disturbed, diminished or interfered
with by Travelers or any successor-in-interest to Travelers in the exercise of
any of its rights under the Deed of Trust, other loan and security documents, or
otherwise provided by law; and (ii) Travelers shall not join Tenant as a party
to any action or proceeding brought as a result of a default under the Deed of
Trust for the purposes of terminating Tenant's interest and estate under the
Lease, subject to Tenant's obligations under PARAGRAPH 1(g) above and subject
further to the condition that Travelers shall not be bound by any rent or other
payment which Tenant might have paid more than thirty (30) days in advance of
the time stipulated for payment under the Lease or by any amendment or
modification of the Lease made without its written consent or that is not made
in accordance with the terms hereof; and
(b) in the event that the interest of Borrower as "Landlord" under
the Lease shall vest in Travelers by reason of foreclosure or any other
procedures brought by it, or in any other manner, Travelers and its
successors-in-interest agree to be bound by all of the undischarged obligations
of "Landlord" under the Lease occurring after such foreclosure or other action
and any offset rights of Tenant pursuant to Section 9(e) and, as to matters
arising from and after the date on which Travelers, or its designee, takes title
to the Property, Section 21, of Amendment 5.
3. REPRESENTATIONS BY TENANT. Tenant hereby represents and warrants
that:
(a) the Lease is in full force and effect;
(b) Tenant is not in default in the performance of or compliance with
any provision of the Lease. To the best of Tenant's knowledge, Borrower is not
in default in the performance of its obligations as "Landlord" under the Lease;
(c) Tenant has not received any notice of default or termination of
the Lease;
(d) the Lease is a complete statement of the agreement of the parties
thereto with respect to the leasing of the Premises; and
(e) Tenant has accepted possession of the Premises and is the sole
owner of the leasehold estate created thereby.
C-5
4. AUTHORIZATION FOR PAYMENT OF RENTS. Borrower hereby authorizes and
directs Tenant, upon receipt of written notice from Travelers to do so, to pay
all rents and other monies payable by Tenant under the Lease to or at the
direction of Travelers. Borrower irrevocably releases Tenant of any liability
to Borrower for all payments so made, and Borrower agrees to defend, indemnify
and hold Tenant harmless from and against any and all claims, demands, losses,
expenses (including reasonable attorneys' fees), or liabilities asserted by,
through, or under Borrower (except by Travelers) for any and all payments so
made. Tenant agrees that upon receipt of such notice it will pay all monies
then due and becoming due from Tenant under the Lease to or at the direction of
Travelers, notwithstanding any provision of the Lease to the contrary. Such
payments shall continue until Travelers directs Tenant otherwise in writing.
Tenant agrees that neither Travelers' demanding or receiving any such payments,
nor Travelers' exercising any other right, remedy, privilege, power or immunity
granted by the Lease or this Agreement will operate to impose any liability upon
Travelers for performance of any obligation of the "Landlord" under the Lease
unless and until Travelers elects otherwise in writing or unless Travelers takes
possession of the Premises and succeeds to the interest of borrower as
"Landlord" under the Lease.
5. NOTICES. Any notice, demand or consent hereunder shall be in writing
and shall be deemed given or received: (a) when delivered if delivered by hand;
(b) if delivered by registered or certified mail, return receipt requested, upon
delivery as established by return receipt or when acceptance of delivery is
refused by the addressee as established by the return receipt; or (c) if
delivered by a nationally recognized overnight delivery service which requires a
receipt upon delivery, upon delivery as established by the delivery service's
receipt. All such notices shall be addressed to the party for whom it is
intended at the address for such party set forth on the first page of this
Agreement. Any party may designate a new address for notices under this
Agreement by giving written notice in accordance with the provisions of this
Agreement to each of the other parties hereto.
6. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
inure to the benefit of the successors and assigns of each of the parties
hereto. The term "Travelers" shall include the respective holders from time to
time of the Deed of Trust (as now or hereafter constituted), the term "Borrower"
shall be synonymous with the term "Landlord" during the term of the Deed of
Trust and the terms "Landlord" and "Tenant" shall include the holder from time
to time of the landlord's interest, and the holder from time to time of the
tenant's interest, respectively, in the Lease.
7. LIMITATION OF TRAVELERS' LIABILITY. In the event Travelers, or its
designee, succeeds to the interest of Borrower as "Landlord" under the Lease,
any claim Tenant may have against Travelers, or such designee, under the Lease
shall be subject to the provisions of Section 20.11.4 thereof, as modified by
Amendment 5.
C-6
8. NO RECORDATION. At no time shall any party hereto record this
Agreement in any public records, including without limitation, the land records
of ▇▇▇▇▇▇▇▇▇▇ County, Maryland.
9. GOVERNING LAW. This Agreement shall be governed by, and construed
under the internal laws of the State of Maryland, excluding conflicts of law
principles.
10. EFFECTIVENESS. This Agreement shall not become effective unless and
until such time as Amendment 5 becomes effective in accordance with its terms.
11. SUPERSEDES PRIOR AGREEMENT. From and after such time as this
Agreement becomes effective in accordance with PARAGRAPH 10 hereof, this
Agreement shall supersede in all respects that certain Non-Disturbance and
Attornment Agreement dated September 15, 1988 among Tenant, Borrower and
Travelers.
C-7
IN WITNESS WHEREOF, the parties hereto have caused the execution hereof as
a sealed instrument as of the day and year first above written.
TRAVELERS:
THE TRAVELERS INSURANCE COMPANY
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title:
-------------------------------
TENANT:
FEDERAL DATA CORPORATION
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Title: Vice President & General Counsel
-------------------------------
BORROWER:
COMMUNITY MOTORS PROPERTY
ASSOCIATES LIMITED PARTNERSHIP
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
--------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇, Sole General Partner
C-8
EXHIBIT A
PROPERTY DESCRIPTION
ALL THAT certain lot or parcel of land lying and being situate in ▇▇▇▇▇▇▇▇▇▇
County, Maryland, more particularly described as follows:
Commercial Unit No. C-1 in One Bethesda Center, a Condominium, situate in the
Seventh Election District of ▇▇▇▇▇▇▇▇▇▇ County, Maryland, and the Common
Elements appurtenant thereto, pursuant to the Declaration recorded in Liber 7433
at folio 787 among the Land Records of ▇▇▇▇▇▇▇▇▇▇ County, Maryland, and the plat
recorded in Condominium Plat Book 42 at Plat 4417, ET SEQ. among the Land
Records of ▇▇▇▇▇▇▇▇▇▇ County, Maryland.
PARCEL IDENTIFICATION NO./TAX ACCOUNT: 7-189-▇▇▇▇▇▇▇
STREET ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
C-9
EXHIBIT B
TENANT ESTOPPEL CERTIFICATE
--------------------------------------------------------------------------------
TO: The Travelers Insurance Company, its affiliates, subsidiaries, successors
and assigns ("Travelers")
RE: PROPERTY ADDRESS: ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("Building")
LEASE: Agreement of Lease dated December 5, 1984, as amended, modified or
qualified by: (a) Amendment to Agreement of Lease dated January 7, 1985;
(b) Amendment No. 2 to Lease Agreement dated November 14, 1986; (c)
Amendment No. 3 to Lease Agreement dated February 6, 1987; (d) Amendment
No. 4 to Lease Agreement dated March 31, 1993; (e) Amendment No. 5 to Lease
Agreement dated ______________, 1995, and (f) the additional amendments, if
any, set forth on Exhibit A attached hereto
LANDLORD: Community Motors Property Associates Limited Partnership
("Landlord")
TENANT: Federal Data Corporation ("Tenant")
SQUARE FOOTAGE LEASED: 70,842
SUITE NUMBER:_________________________________________ (the "Leased
Premises")
--------------------------------------------------------------------------------
THE UNDERSIGNED, Tenant under the above-referenced Lease ("Lease"),
certifies to Travelers the following:
1. A true and complete copy of the Lease, and any and all amendments,
extensions, assignments and other modifications thereto, are attached hereto as
EXHIBIT A. There are no other agreements, either oral or written, between
Landlord and Tenant with respect to the Lease, the Leased Premises and/or the
Building.
2. Rent has been paid to the first day of the current month and all
additional rent has been paid and collected in a current manner. There is no
prepaid rent except _______________________________. No security deposit has
been posted pursuant to the Lease.
3. Base rent is currently payable in the amount of __________________ per
month, and payments are currently being paid under the Lease in the amount of
______________________ per month for Tenant's share of annual operating costs as
provided in the Lease.
4. The Lease terminates on ____________________________ and Tenant has no
expansion or renewal rights except set forth in the Lease.
C-10
5. To Tenant's knowledge, all work, including construction, tenant
improvements and alterations, to be performed for Tenant under the Lease has
been performed as required under and in accordance with the terms of the Lease
and has been accepted by Tenant, except as follows:___________________________
C-11
AMENDMENT NO. 6 TO LEASE AGREEMENT
AMENDMENT NO. 6 TO LEASE (the "Amendment") is made as of the 27th day of
April, 1995, by and between COMMUNITY MOTORS PROPERTY ASSOCIATES LIMITED
PARTNERSHIP, a Maryland limited partnership, having its principal offices in
▇▇▇▇▇▇▇▇▇▇ County, State of Maryland ("Landlord"), and FEDERAL DATA CORPORATION,
a Delaware corporation having its principal offices at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ("Tenant").
WHEREAS, Landlord and Tenant entered into that certain Agreement of Lease
(the "Lease") dated December 5, 1984, with respect to certain space as further
described in the Lease (the "Premises") in the building with an address of ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the "Building);
WHEREAS, Landlord and Tenant amended the Lease pursuant to that certain
Amendment to Agreement of Lease dated January 7, 1985 (the "First Amendment");
WHEREAS, Landlord and Tenant amended the Lease pursuant to that certain
Amendment No. 2 to Lease Agreement dated November 14, 1986 (the "Second
Amendment");
WHEREAS, Landlord and Tenant amended the Lease pursuant to that certain
Amendment No. 3 to Lease Agreement dated February 6, 1987 (the "Third
Amendment");
WHEREAS, Landlord and Tenant amended the Lease pursuant to that certain
Amendment No. 4 to Lease Agreement dated March 31, 1993 (the "Fourth
Amendment");
WHEREAS, Landlord and Tenant amended the Lease pursuant to that certain
Amendment No. 5 to Lease Agreement dated March 8, 1995 (the "Fifth Amendment")
(hereinafter all references herein to the "Lease" shall refer to the Lease as
amended by the First Amendment, Second Amendment, Third Amendment, Fourth
Amendment and Fifth Amendment, as amended hereby);
WHEREAS, Landlord and Tenant desire to confirm that Section 36 of the Fifth
Amendment is hereby deleted, all on such terms and conditions hereinafter set
forth;
WHEREAS, Landlord is a debtor in bankruptcy proceedings Case No.
94-1-5830-DK (Chapter 11) (the "Bankruptcy Proceeding") pending before the U.S.
Bankruptcy Court for the District of Maryland (the "Court"); and
WHEREAS, Landlord's authority to accept and execute this Amendment is set
forth in that certain Settlement Agreement by and among Landlord, The Travelers
Insurance Company
C-12
("Travelers") and ▇▇▇▇ ▇. ▇▇▇▇▇▇ dated March 27, 1995, as evidenced by that
certain Order Approving Settlement Agreement between Debtor and Travelers,
Including Transactions and Orders Contemplated Thereby and New Leases to be
Entered into and 364(c)(1) Financing to be Extended Pursuant Thereto entered by
the Court on March 29, 1995.
NOW, THEREFORE, in consideration of the foregoing premises, the mutual
covenants set forth herein, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Landlord and Tenant,
intending to be legally bound, hereby agree as follows:
1. INCORPORATION OF RECITALS. The foregoing recitals are hereby incorporated
herein and made a part hereof by this reference.
2. DEFINITIONS. All capitalized terms in this Amendment shall have the
meanings assigned thereto in the Lease unless otherwise specified.
3. EXPIRATION OF OPTION TO TERMINATE. Tenant and Landlord hereby agree and
acknowledge that the Lapse Date has passed, Tenant has not exercised its right
to terminate described in Section 36 of the Fifth Amendment and Section 36 is
hereby deleted and deemed null and void.
4. RATIFICATION. Except as expressly amended by this Amendment, all other
terms, conditions and provisions of the Lease are hereby ratified and confirmed
and shall continue in full force and effect, without modification.
5. EFFECTIVENESS. This Amendment becomes effective only upon execution and
delivery thereof by Landlord and Tenant and approval thereof by Travelers.
6. MISCELLANEOUS. This Amendment (i) shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns and
(ii) shall be governed by and construed in accordance with the laws of the State
of Maryland.
C-13
IN WITNESS WHEREOF, the parties hereto have executed this Amendment to
Lease as of the day and year first hereinabove written.
LANDLORD:
WITNESS: COMMUNITY MOTORS PROPERTY
ASSOCIATES LIMITED PARTNERSHIP, a
Maryland limited partnership
(seal)
----------------------------------- ----------------------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: General Partner
TENANT:
WITNESS: FEDERAL DATA CORPORATION, a Delaware
corporation
(seal)
----------------------------------- ----------------------------------
Name:
Title:
APPROVED AND CONSENTED TO:
THE TRAVELERS INSURANCE COMPANY
(seal)
-------------------------------
Name:
Title:
C-14
▇▇▇▇▇▇▇ ▇.▇. Properties Ltd.
VIA CERTIFIED MAIL - RETURN RECEIPT REQUESTED
27 July, 1995
Federal Data Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Re: Lease Agreement between COMMUNITY MOTORS PROPERTY ASSOCIATES LIMITED
PARTNERSHIP, A MARYLAND LIMITED PARTNERSHIP ("Landlord") and FEDERAL DATA
CORPORATION, A CORPORATION ORGANIZED AND EXISTING UNDER THE LAWS OF THE DISTRICT
OF COLUMBIA ("Tenant") dated DECEMBER 5, 1984 at One Bethesda Center.
Dear Sir / Ms.:
Please be advised that Ownership of the Property (as defined in the above
referenced Lease) has been transferred to ONE BETHESDA INVESTORS, L.L.C.
effective today. Please forward all future correspondence and rental payments
to:
One Bethesda Investors, L.L.C.
c/▇ ▇▇▇▇▇▇▇ Properties, Ltd.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Property Manager - One Bethesda Center
A representative from ▇▇▇▇▇▇▇ Properties, Ltd. will be contacting you to set up
a meeting in your office in the near future. In the meantime, if you have any
questions regarding the transfer of Ownership, please call ▇▇▇▇ ▇▇▇▇▇ at ▇▇▇▇▇▇▇
Properties, Ltd. at (▇▇▇) ▇▇▇-▇▇▇▇.
COMMUNITY MOTORS PROPERTY ASSOCIATES LIMITED PARTNERSHIP
By:
-----------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Its:
-----------------------------------------
C-15
ONE BETHESDA INVESTORS, L.L.C.
By: ▇▇▇▇▇▇▇ PROPERTIES, LTD., AN ILLINOIS CORPORATION, ITS
------------------------------------------------------
MANAGING AGENT
--------------
By:
------------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Its:
------------------------------------------------------
C-16
NOTICE
August 8, 1997
VIA CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Federal Data Corporation
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer
Re: ONE BETHESDA CENTER - ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Ladies and Gentlemen:
All future notices and other communications under your lease (the "LEASE")
of space at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ should be delivered at the following address:
One Bethesda Investors, L.L.C.
c/o Compass Management and Leasing, Inc.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Commencing with the rent and other charges due on or after the date hereof,
ALL PAYMENTS DUE UNDER THE LEASE, INCLUDING MONTHLY PAYMENT OF RENT, SHOULD BE
PAID AND DELIVERED AS FOLLOWS:
One Bethesda Investors, L.L.C.
c/o Compass Management and Leasing, Inc.
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
C-17
