LEASE BY AND BETWEEN HUB PROPERTIES TRUST, LANDLORD AND DIMENSIONS INTERNATIONAL, INC. TENANT.
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BY AND BETWEEN
HUB PROPERTIES TRUST,
LANDLORD
AND
DIMENSIONS INTERNATIONAL, INC.
TENANT.
1.1...... Introduction and Subjects Referred To...................................................................... 1
1.2...... Exhibits.................................................................................................................... 2
ARTICLE 2.......... Premises and Term.................................................................................. 3
2.1...... Premises.................................................................................................................. 3
2.2...... Term........................................................................................................................ 3
2.3...... Extension Option...................................................................................................... 3
2.4...... Measurement of the Premises................................................................................... 5
2.5...... Right of First Offer................................................................................................... 6
ARTICLE 3.......... Commencement and Condition....................................................... 6
3.1...... Commencement Date............................................................................................... 6
3.2...... Condition/Delivery of the Premises............................................................................ 7
3.3...... Preparation of the Premises...................................................................................... 7
ARTICLE 4.......... Rent, Additional Rent, Insurance and Other Charges........ 8
4.1...... The Annual Fixed Rent............................................................................................. 8
4.2...... Additional Rent........................................................................................................ 8
4.2.1... Real Estate Taxes......................................................................................... 8
4.2.2... Operating Costs......................................................................................... 10
4.2.3... Audit Right................................................................................................. 12
4.3...... Personal Property and Sales Taxes......................................................................... 13
4.4...... Insurance............................................................................................................... 13
4.5...... Utilities................................................................................................................... 15
4.6...... Late Payment of Rent............................................................................................. 15
ARTICLE 5.......... Landlord’s Covenants...................................................................... 15
5.1...... Affirmative Covenants............................................................................................ 15
5.1.1... Heat and Air-Conditioning.......................................................................... 15
5.1.2... Cleaning; Water......................................................................................... 16
5.1.3... Elevator, Lighting and Electricity................................................................. 16
5.1.4... Repairs...................................................................................................... 17
5.2...... Interruption............................................................................................................ 18
5.3...... Outside Services.................................................................................................... 18
5.4...... Access to Building.................................................................................................. 19
5.5...... Parking.................................................................................................................. 19
5.6...... Indemnification....................................................................................................... 20
ARTICLE 6.......... Tenant’s Additional Covenants................................................... 20
6.1...... Affirmative Covenants............................................................................................ 20
6.1.1... Perform Obligations.................................................................................... 20
6.1.2... Use............................................................................................................ 20
6.1.3... Repair and Maintenance............................................................................. 20
6.1.4... Compliance with Law................................................................................. 21
6.1.5... Indemnification........................................................................................... 21
6.1.6... Landlord’s Right to Enter............................................................................ 21
6.1.7... Personal Property at Tenant’s Risk............................................................. 22
6.1.8... Payment of Landlord’s Cost of Enforcement............................................... 22
6.1.9... Yield Up.................................................................................................... 22
6.1.10. Rules and Regulations................................................................................. 23
6.1.11. Estoppel Certificate.................................................................................... 23
6.1.12. Landlord’s Expenses For Consents............................................................. 23
6.1.13. Financial Information.................................................................................. 23
6.2...... Negative Covenants............................................................................................... 23
6.2.1... Assignment and Subletting.......................................................................... 23
6.2.2... Nuisance.................................................................................................... 27
6.2.3... Floor Load; Heavy Equipment.................................................................... 27
6.2.4... Electricity................................................................................................... 27
6.2.5... Installation, Alterations or Additions............................................................ 28
6.2.6... Abandonment............................................................................................. 29
6.2.7... Signs.......................................................................................................... 29
6.2.8... Oil and Hazardous Materials....................................................................... 29
ARTICLE 7.......... Casualty or Taking............................................................................. 31
7.1...... Termination............................................................................................................ 31
7.2...... Restoration............................................................................................................. 31
7.3...... Award................................................................................................................... 32
7.4...... Effect of Casualty or Taking on the Tax Excess and the Operating Cost Excess....... 32
ARTICLE 8.......... Defaults.................................................................................................... 32
8.1...... Default of Tenant.................................................................................................... 32
8.2...... Remedies............................................................................................................... 33
8.3...... Remedies Cumulative............................................................................................. 34
8.4...... Landlord’s Right to Cure Defaults........................................................................... 34
8.5...... Holding Over......................................................................................................... 35
8.6...... Effect of Waivers of Default.................................................................................... 35
8.7...... No Waiver, etc...................................................................................................... 35
8.8...... No Accord and Satisfaction.................................................................................... 35
ARTICLE 9.......... Rights of Holders................................................................................. 36
9.1...... Rights of Mortgagees or Ground Lessor.................................................................. 36
9.2...... Modifications......................................................................................................... 37
9.3...... Subordination, Non-Disturbance and Attornment.................................................... 37
ARTICLE 10........ Miscellaneous Provisions............................................................... 37
10.1.... Notices.................................................................................................................. 37
10.2.... Quiet Enjoyment; Landlord’s Right to Make Alterations, Etc................................... 37
10.3.... Lease not to be Recorded; Confidentiality of Lease Terms...................................... 38
10.4.... Assignment of Rents and Transfer of Title; Limitation of Landlord’s Liability............. 39
10.5.... Landlord’s Default.................................................................................................. 39
10.6.... Notice to Mortgagee and Ground Lessor................................................................ 40
10.7.... Brokerage.............................................................................................................. 40
10.8.... Applicable Law and Construction........................................................................... 40
10.9.... Rooftop Dish.......................................................................................................... 41
LEASE
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1.1 Introduction and Subjects Referred To.
This is a lease (this “Lease”) entered into by and between Hub Properties Trust, a Maryland real estate investment trust (“Landlord”), and Dimensions International, Inc., a Virginia corporation (“Tenant”).
Each reference in this Lease to any of the following terms or phrases shall be construed to incorporate the corresponding definition stated in this Section 1.1.
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Date of this Lease: |
March 3, 2004. |
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Building and Property: |
That building in the City of Alexandria, Virginia known as ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the “Building”). The Building and the land parcels on which it is located and the sidewalks adjacent thereto are hereinafter collectively referred to as the “Property”. |
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Premises: |
The entire third (3rd) floor of the Building, substantially as shown on Exhibit A hereto. |
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Premises Rentable Area: |
29,973 square feet. |
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Original Term: |
The period commencing on the Commencement Date and expiring June 30, 2014. |
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Annual Fixed Rent: |
The sum of the following amounts, as the same may be adjusted pursuant to the terms of the Lease. |
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Dates |
Annual Fixed Rent |
monthly payment |
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7/1/04 — 6/30/07* |
$599,460.00 |
$49,955.00 |
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7/1/07 — 6/30/08 |
$809,271.00 |
$67,439.25 |
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7/1/08 — 6/30/09 |
$833,549.13 |
$69,462.43 |
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7/1/09 — 6/30/10 |
$858,555.60 |
$71,546.30 |
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7/1/10 — 6/30/11 |
$884,312.26 |
$73,692.69 |
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7/1/11 — 6/30/12 |
$910,841.62 |
$75,903.47 |
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7/1/12 — 6/30/13 |
$938,166.86 |
$78,180.57 |
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7/1/13 — 6/30/14 |
$966,311.86 |
$80,525.99 |
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*Tenant shall only be required to pay Annual Fixed Rent during this period if the Commencement Date occurs prior to July 1, 2007 as set forth in Section 3.1 hereof. |
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Base Taxes: |
The Taxes (as defined in Subsection 4.2.1) for the 2007 calendar year, as the same may be reduced by the amount of any abatement. |
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Base Operating Costs: |
The Operating Costs (as defined in Subsection 4.2.2) for the 2007 calendar year. |
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Tenant’s Percentage: |
Twenty-six and 12/100 percent (26.12%). |
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Permitted Uses: |
General office use, subject to the provisions of Subsection 6.1.2. |
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Security Deposit: |
None. |
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Commercial General Liability Insurance Limits: |
$5,000,000 per occurrence (combined single limit) for property damage, bodily and personal injury and death. |
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Original Address of Landlord: |
c/o REIT Management and
Research LLC |
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Landlord’s Agent: |
REIT Management and Research LLC or such other entity as shall be designated by Landlord from time to time. |
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Original Address of Tenant: |
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The Exhibits listed below in this section are incorporated in this Lease by reference and are to be construed as a part of this Lease.
EXHIBIT A. Plan showing the Premises.
EXHIBIT B. Rules and Regulations.
EXHIBIT C. Alterations Requirements.
EXHIBIT D. Contractor’s Insurance Requirements.
Tenant shall have, as appurtenant to the Premises, rights to use, in common with others, subject to reasonable rules of general applicability to tenants of the Building from time to time made by Landlord of which Tenant is given notice: (a) the common lobbies, hallways and stairways of the Building, (b) the common escalators, elevators, pipes, ducts, conduits, wires and appurtenant fixtures and other common facilities serving the Premises, (c) common walkways and driveways (if any) necessary for access to the Building, and (d) if the Premises include less than all of the rentable area of any floor of the Building, the common toilets and other common facilities located on such floor.
“Market Rate” shall mean the then fair market annual rental rate and terms for the Premises for the applicable period (determined as set forth below). If Tenant disagrees with Landlord’s designation of the Market Rate, and the parties cannot agree upon the Market Rate by the date that is thirty (30) days following Landlord’s Notice, then the Market Rate shall be submitted for determination as follows: Within fifteen (15) days after the expiration of such thirty (30) day period, Landlord and Tenant shall each give notice to the other specifying the name and address of the broker each has chosen. The two brokers so chosen shall meet within ten (10) days after the second broker is appointed and if, within twenty (20) days after the second broker is appointed, the two brokers shall not agree upon a determination of the Market Rate in accordance with the provisions of this Section 2.3 they shall together appoint a third broker. If only one broker shall be chosen whose name and address shall have been given to the other party within such fifteen (15) day period and who shall have the qualifications hereinafter set forth, that sole broker shall render the decision which would otherwise have been made as hereinabove provided.
If said two brokers cannot agree upon the appointment of a third broker within ten (10) days after the expiration of such twenty (20) day period, then either party, on behalf of both and on notice to the other, may request such appointment by the nearest office of the American Arbitration Association (or any successor organization) in accordance with its then prevailing rules. In the event that all three brokers cannot agree upon such Market Rate within ten (10) days after the third broker shall have been selected, then each broker shall submit his or her designation of such Market Rate to the other two brokers in writing; and Market Rate shall be determined by calculating the average of the two numerically closest (or, if the values are equidistant, all three) values so determined.
Each of the brokers selected as herein provided shall have at least ten (10) years experience as a commercial real estate broker in the greater ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇ (▇.▇., ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇) dealing with properties of the same type and quality as the Building. Each party shall pay the fees and expenses of the broker it has selected and the fees of its own counsel. Each party shall pay one half (1/2) of the fees and expenses of the third broker (or the sole broker, if applicable) and all other expenses of the appraisal. The decision and award of the broker(s) shall be in writing and shall be final and conclusive on all parties, and counterpart copies thereof shall be delivered to both Landlord and Tenant. Judgment upon the award of the broker(s) may be entered in any court of competent jurisdiction.
Both brokers or a majority of them (or the sole broker, if applicable) shall determine the Market Rate of the Premises for the Extended Term and render a decision and award as to their determination to both Landlord and Tenant (a) within twenty (20) days after the appointment of the second broker, (b) within twenty (20) days after the appointment of the third broker or (c) within fifteen (15) days after the appointment of the sole broker, as the case may be. In rendering such decision and award, the broker(s) shall assume (i) that neither Landlord nor the prospective tenant is under a compulsion to rent, (ii) that Landlord and Tenant are typically motivated, well-informed and well-advised, and each is acting in what it considers its own best interest and (iii) that in the event the Premises are destroyed or damaged by fire or other casualty prior to the commencement of the Extended Term, they have been fully restored. The brokers shall also take into consideration any increases or possible increases in rent then being included in leases for comparable space in the Building or in comparable buildings based on changes in price indices, cost of living or other similar increases, or periodic market rental adjustments. In rendering such decision and award, the broker(s) shall consider the fair market annual rents (as the same may increase over time) then being charged for comparable available space in comparable buildings in the greater Alexandria, Virginia area, but shall not modify the provisions of this Lease.
If the dispute between the parties as to the Market Rate has not been resolved before the commencement of Tenant’s obligation to pay the Annual Fixed Rent based upon determination of such Market Rate, then Tenant shall pay the Annual Fixed Rent under the Lease based upon the Market Rate designated by Landlord in Landlord’s Notice until either the agreement of the parties as to the Market Rate, or the decision of the broker(s), as the case may be, at which time Tenant shall pay any underpayment of the Annual Fixed Rent to Landlord, or Landlord shall refund any overpayment of the Annual Fixed Rent to Tenant.
Landlord and Tenant hereby waive the right to an evidentiary hearing before the broker(s) and agree that the appraisal shall not be an arbitration nor be subject to state or federal law relating to arbitrations.
Either party hereto may, not later than thirty (30) days after the Date of this Lease, request that an exact measurement of the Premises be made in accordance with the measurement method recommended by Building Owners and Managers Association. Such measurement shall be made by an architect or engineer designated by Landlord at the cost and expense of the requesting party. If the rentable area of the Premises, as so measured, is more than one hundred one percent (101%) or less than ninety-nine percent (99%) of the Premises Rentable Area as set forth in Section 1.1: (i) the definition of Premises Rentable Area set forth in Section 1.1 shall be deemed amended in accordance with such measurement; (ii) Annual Fixed Rent shall, be recomputed by multiplying the Annual Fixed Rent as set forth in Section 1.1 by a fraction (the “Fraction”), the numerator of which shall be the rentable area as so measured and the denominator of which shall be the Premises Rentable Area set forth in Section 1.1; and (iii) Tenant’s Percentage shall be recomputed to be the percentage determined by multiplying Tenant’s Percentage as set forth in Section 1.1 by the Fraction. Any payment due to Landlord as the result of such adjustment shall be paid within fifteen (15) days after notice to Tenant of such computation. Any payment due to Tenant as a result of such adjustment shall be credited against installments of Annual Fixed Rent thereafter becoming due. In the event of any adjustment pursuant to this Section 2.4, Landlord and Tenant shall promptly execute a written statement setting forth the recomputed Premise Rentable Area, Annual Fixed Rent, and Tenant’s Percentage, but the failure by either party to execute such a statement shall have no effect on the validity of such recomputation.
If (i) neither Landlord nor Tenant requests any adjustment as herein provided within the time limit provided, or (ii) such adjustment is requested, but the rentable area is within the two (2%) percent range set forth above, Annual Fixed Rent, Tenant’ s Percentage, and Premises Rentable Area shall remain as set forth in Section 1.1, and neither Landlord nor Tenant shall have any right to any adjustment.
ARTICLE 3
Commencement and Condition
Tenant may requisition payment of Landlord’s Contribution monthly, provided that the installments (hereinafter “Progress Payments”) of Landlord’s Contribution shall not exceed the costs invoiced to Tenant as of the date of requisition toward which Landlord’s Contribution may be applied, less any amounts previously paid by Landlord. Each requisition for a Progress Payment shall include (i) a detailed breakdown of the costs of the Third Floor Work incurred during the period covered by the requisition and to date, (ii) copies of invoices from Tenant’s architect, contractor and/or supplier(s), as applicable, for all such costs of the Third Floor Work (to the extent not submitted with a prior requisition), (iii) a certification from Tenant’s architect that all of the construction work to be paid for by the Progress Payment has been completed in accordance with Tenant’s Plans, and (iv) waivers and releases of liens from all parties providing labor or materials in connection with such portion of the Third Floor Work to be paid for by the Progress Payment and all prior work. Landlord shall make each Progress Payment within thirty (30) days after Landlord’s receipt of a Progress Payment requisition with all required supporting documentation. After the completion of all of the Third Floor Work, Tenant may submit a requisition to Landlord for payment of the balance of Landlord’s Contribution (the “Final Payment”). Such requisition shall include (i) a detailed breakdown of all of the costs of the Third Floor Work, (ii) copies of invoices from Tenant’s architect, contractor and/or supplier(s), as applicable, for all costs to be reimbursed by the Final Payment, to the extent not previously provided, (iii) full and final lien waivers from all parties providing labor or materials in connection with the Third Floor Work and (iv) a certificate of occupancy for the Premises. Landlord shall make the Final Payment to Tenant within thirty (30) days after Landlord’s receipt of a timely requisition for the Final Payment with all required supporting documentation. Notwithstanding any of the foregoing, Landlord shall have no obligation to make any Progress Payment or the Final Payment at any time during which Tenant shall be in default of any of its obligations under this Lease.
Landlord and Tenant acknowledge that the Third Floor Work or portions thereof may be performed by Tenant prior to the Commencement Date (i.e., during the term of the Sublease) and, to the extent that any portion (or all) of Landlord’s Contribution has been applied towards any work performed prior to the Commencement Date, it shall not be available to Tenant during the term of this Lease. Any Third Floor Work performed prior to the Commencement Date must be performed in accordance with the requirements of this Lease, including, without limitation, the requirements specified in Section 6.2.5, Exhibit C and Exhibit D.
ARTICLE 4
Rent, Additional Rent, Insurance and
Other Charges
Annual Fixed Rent for any partial month shall be prorated on a daily basis (based on a 365 day year), and if Annual Fixed Rent commences on a day other than the first day of a calendar month, the first payment which Tenant shall make to Landlord shall be payable on the date Annual Fixed Rent commences and shall be equal to such pro-rated amount plus the installment of Annual Fixed Rent for the succeeding calendar month.
At Landlord’s election, Tenant shall pay to Landlord, as Additional Rent on the first day of each calendar month during the term but otherwise in the manner provided for the payment of Annual Fixed Rent, estimated payments on account of the Tax Excess, such monthly amounts to be sufficient to provide Landlord by the time Tax payments are due or are to be made by Landlord a sum equal to the Tax Excess, as reasonably estimated by Landlord from time to time on account of Taxes for the then current Tax Year. If the total of such monthly remittances for any Tax Year is greater than the Tax Excess for such Tax Year, Landlord shall credit such overpayment against Tenant’s subsequent obligations on account of Taxes (or promptly refund such overpayment if the term of this Lease has ended and Tenant has no further obligations to Landlord); if the total of such remittances is less than the Tax Excess for such Tax Year, Tenant shall pay the difference to Landlord within ten (10) days after being so notified by Landlord.
If, after Tenant shall have made all payments due to Landlord pursuant to this subsection 4.2.1, Landlord shall receive a refund of any portion of Taxes as a result of an abatement of such Taxes by legal proceedings, settlement or otherwise (without either party having any obligation to undertake any such proceedings), Landlord shall pay or credit to Tenant Tenant’s Percentage of that percentage of the refund (after first deducting actual, reasonable expenses, including attorneys’, consultants’ and appraisers’ fees, incurred in connection with obtaining any such refund) which equals the percentage of the applicable Tax Year included in the term hereof, provided however, in no event shall Tenant be entitled to receive more than the sum of payments actually made by Tenant on account of Taxes with respect to such Tax Year or to receive any payment if Taxes for any Tax Year are less than Base Taxes.
In the event that the Commencement Date shall occur or the term of this Lease shall expire or be terminated during any Tax Year, or should the Tax Year or period of assessment of real estate taxes be changed or be more or less than one (1) year, or should Tenant’s Percentage be modified during any Tax Year due to a change in the rentable area of the Building and/or the Premises or otherwise, as the case may be, then the amount of Tax Excess which may be otherwise payable by Tenant as provided in this subsection 4.2.1 shall be pro-rated on a daily basis based on a 365 day Tax Year.
“Taxes” shall mean all taxes, assessments, excises and other charges and impositions which are general or special, ordinary or extraordinary, foreseen or unforeseen, of any kind or nature which are levied, assessed or imposed at any time during the term by any governmental authority upon or against or with respect to the Property, Landlord or the owner or lessee of personal property used by or on behalf of Landlord in connection with the Property, or taxes in lieu thereof, and additional types of taxes to supplement real estate taxes due to legal limits imposed thereon. If, at any time during the term of this Lease, any tax or excise on rents or other taxes, however described, are levied or assessed against Landlord, either wholly or partially in substitution for, or in addition to, real estate taxes assessed or levied on the Property, such tax or excise on rents from the Property shall be included in Taxes; however, Taxes shall not include franchise, estate, inheritance, succession, capital levy, income (except to the extent that a tax on income or revenue is levied solely on rental revenues and not on other types of income and then only from rental revenue generated by the Property) or excess profits taxes assessed on Landlord. Taxes also shall include all actual court costs, attorneys’, consultants’ and accountants’ fees, and other expenses reasonably incurred by Landlord contesting Taxes through and including all appeals. Taxes shall include any estimated payment made by Landlord on account of a fiscal tax period for which the actual and final amount of taxes for such period has-not been determined by the governmental authority as of the date of any such estimated payment.
At the election of Landlord, Tenant shall pay to Landlord, as Additional Rent on the first day of each calendar month during the term but otherwise in the manner provided for the payment of Annual Fixed Rent, estimated payments on account of Operating Cost Excess, such monthly amounts to be sufficient to provide to Landlord, by the end of each Operating Year, a sum equal to the Operating Cost Excess for such Operating Year, as estimated by Landlord from time to time during such Operating Year. If, at the expiration of each Operating Year in respect of which monthly installments of Operating Cost Excess shall have been made as aforesaid, the total of such monthly remittances is greater than the Operating Cost Excess for such Operating Year, Landlord shall credit such overpayment against Tenant’s subsequent obligations on account of Operating Costs (or promptly refund such overpayment if the term of this Lease has ended and Tenant has no further obligation to Landlord); if the total of such remittances is less than the Operating Cost Excess for such Operating Year, Tenant shall pay the difference to Landlord within ten (10) days after being so notified by Landlord. In no event shall Tenant be entitled to receive any reimbursement or credit if Operating Costs for any Operating Year are less than Base Operating Costs.
In the event that the Commencement Date shall occur or the term of this Lease shall expire or be terminated during any Operating Year or Tenant’s Percentage shall be modified during any Operating Year due to a change in the rentable area of the Building and/or the Premises or otherwise, as the case may be, then the amount of Operating Cost Excess which may be payable by Tenant as provided in this subsection 4.2.2 shall be pro-rated on a daily basis based on a 365 day Operating Year.
“Operating Costs” shall include, without limitation, all costs and expenses paid or incurred for the operation, cleaning, management, maintenance, repair, upkeep and security of the Property, including, without limitation:
(a) all salaries, wages, fringe benefits, payroll taxes and workmen’s compensation insurance premiums related thereto and all other costs paid or incurred with respect to employment of personnel engaged in operation, administration, cleaning, maintenance, repair, upkeep and security of the Property including, without limitation, supervisors, property managers, accountants, bookkeepers, janitors, carpenters, engineers, mechanics, electricians and plumbers;
(b) all utilities and other costs related to provision of heat (including oil, steam and/or gas), electricity, air conditioning, and water (including sewer charges) and other utilities to the Property (exclusive of reimbursement to Landlord for any of same received as a result of direct billing to any tenant of the Building);
(c) all costs, including supplies, material and equipment costs, for cleaning and janitorial services to the Property, the Building and, if applicable, adjacent walks and ways (including, without limitation, trash removal and interior and exterior window cleaning), and interior and exterior landscaping and pest control;
(d) the cost of replacements for tools and other similar equipment used in the repair, maintenance, cleaning and protection of the Property, provided that, in the case of any such equipment used jointly on other property of Landlord, such costs shall be suitably prorated among the Property and such other properties;
(e) all costs and premiums for fire, casualty, rental income, liability and such other insurance as may be maintained from time to time by Landlord relating to the Property and premiums for fidelity bonds covering persons having custody or control over funds or other property of Landlord relating to the Property;
(f) all costs of maintaining, repairing, decorating, operating, administering, inspecting and protecting the Property (including, without limitation, lighting, installation, maintenance, repair and alteration of signs, snow removal on the Property and adjacent walks and ways, paving, patching and restriping of parking areas and operation, maintenance, replacement and repair of heating, ventilating and air conditioning equipment, fire protection and security systems, elevators, roofs, parking areas and any other common Building equipment, systems or facilities), all costs of structural and other repairs and replacements (other than repairs for which Landlord has received full reimbursement from contractors, other tenants of the Building or from others) necessary to keep the Property in good working order, repair, appearance and condition;
(g) costs of compliance with any laws, rules, regulations, ordinances, agreements or standards applicable to the Building or the Property, which conformance is not the responsibility of any tenant of the Building, and which Landlord elects or is required to perform, and costs of removal or remediation of any Hazardous Materials in the Building or Property, which is not the responsibility of any tenant of the Building, and which Landlord elects to perform;
(h) all costs incurred in connection with the administration and supervision of all matters referred to in items (a) through (g) hereof and in performing Landlord’s obligations under Article 5, including Landlord’s office overhead costs provided that, if any such administrative or supervisory personnel are also employed on other property of Landlord, such cost of compensation shall be suitably prorated among the Property and such other properties;
(i) payments under all service contracts relating to matters referred to in Items (a) through (h) hereof;
(j) a management fee of up to four (4%) percent of gross rents payable by tenants of the Property; and
(k) attorney’s fees and disbursements (exclusive of any such fees and disbursements incurred in tax abatement proceedings or in the preparation of leases) and auditing and other professional fees and expenses.
If, during the term of this Lease, Landlord shall make any capital expenditure, the total cost of which is not included in Operating Costs for the Operating Year in which it was made, Landlord may include in Operating Costs for the Operating Year in which such expenditure was made and in Operating Costs for each succeeding Operating Year an annual charge-off of such capital expenditure. Annual charge-offs shall be equal to the level payments of principal and interest necessary to amortize the original capital expenditure over the useful life of the improvement, repair, alteration or replacement made with the capital expenditure using an interest rate reasonably determined by Landlord as being the interest rate being charged at the time of the original capital expenditure for long-term mortgages by institutional lenders on like properties within the greater Alexandria, Virginia area; and the useful life shall be determined reasonably by Landlord in accordance with generally accepted accounting principles, consistently applied.
In addition, if during any portion of any Operating Year for which Operating Costs are being computed, less than ninety-five percent (95%) of the rentable area of the Building was leased to tenants or if Landlord is supplying less than ninety-five percent (95%) of the rentable area of the Building with the services and utilities being supplied hereunder, Landlord shall reasonably project, on an item-by-item basis, the Operating Costs that would have been incurred if ninety-five percent (95%) of the Building were occupied for such Operating Year and such services and utilities were being supplied to ninety-five percent (95%) of the rentable area of the Building, and such projected amount shall, for the purposes hereof, be deemed to be the Operating Costs for such Operating Year.
If it should be agreed or decided that Operating Costs were overstated by five percent (5%) or more, then Landlord shall promptly reimburse Tenant for the reasonable costs incurred by Tenant in reviewing Landlord’s invoices and statements, Tenant’s reasonable arbitration costs plus any excess amount paid by Tenant on account of overstated Operating Costs and interest at the Default Rate. If it should be agreed or decided that Operating Costs were not overstated at all, then Tenant shall, as Additional Rent, promptly reimburse Landlord for its costs incurred in the arbitration and in preparing for Tenant’s review of invoices and statements, and if Operating Costs shall have been understated or Tenant shall not have paid the Operating Cost Excess in full, Tenant shall, as Additional Rent, promptly pay any deficiency in the payments thereafter made on account of Operating Cost Excess. If it should be agreed or decided that Operating Costs were overstated by less than five percent (5%), Landlord shall promptly reimburse Tenant any excess amount paid by Tenant on account of overstated Operating Costs, with interest at the Default Rate, and each party shall be responsible for its own costs incurred in connection with such dispute.
Tenant shall keep confidential (and shall cause any third party assisting Tenant with any such audit to keep confidential) all information obtained during the audit process including any settlements or arbitration awards made. Landlord may require Tenant to execute and deliver a separate confidentiality agreement further specifying Tenant’s obligations and Landlord’s remedies for breach, as a condition to commencement of the audit.
4.4.1 Tenant shall, at its expense, take out and maintain, throughout the term of this Lease, the following insurance:
(a) Commercial general liability insurance (on an occurrence basis and on a 1988 ISO CGL form or its equivalent, including without limitation, broad form contractual liability, bodily injury, property damage, fire legal liability, and products and completed operations coverage) under which Tenant is named as an insured and Landlord and Landlord’s Agent (and the holder of any mortgage on the Premises or Property, as set out in a notice from time to time) are named (on an ISO Form 20226 or as otherwise acceptable to Landlord) as additional insureds as their interests may appear, in an amount which shall, at the beginning of the term, be at least equal to the Commercial General Liability Insurance Limits, and, which, from time to time during the term, shall be for such higher limits, if any, as Landlord shall determine to be customarily carried in the area in which the Premises are located at property comparable to the Premises and used for similar purposes;
(b) Worker’s compensation insurance with statutory limits covering all of Tenant’s employees working on the Premises; and
(c) So-called “special form” property insurance on a “replacement cost” basis with an agreed value endorsement covering all furniture, furnishings, fixtures and equipment and other personal property brought to the Premises by Tenant or any party claiming under Tenant and all improvements and betterments to the Premises performed at Tenant’s expense.
4.4.2 All such policies shall contain deductibles not in excess of that reasonably approved by Landlord, shall contain a clause confirming that such policy and the coverage evidenced thereby shall be primary with respect to any insurance policies carried by Landlord and shall be obtained from responsible companies qualified to do business and in good standing in the state or district in which the Property is located, which companies shall have a general policy holder’s rating in Best’s of at least A+ X or otherwise be acceptable to Landlord. A certificate (on ▇▇▇▇▇ Form 27 or its equivalent) of the insurer, certifying that such policy has been issued and paid in full, providing the coverage required by this Section and containing provisions specified herein, shall be delivered to Landlord prior to the commencement of the term of this Lease and, upon renewals, not less than thirty (30) days prior to the expiration of such coverage. Each such policy shall be non-cancelable with respect to the interest of Landlord and such mortgagees of the Property (and others that are in privity of estate with Landlord of which Landlord provides notice to Tenant from time to time) without at least thirty (30) days’ prior written notice thereto. Any insurance required of Tenant under this Lease may be furnished by Tenant under a blanket policy carried by it provided that such blanket policy shall reference the Premises, and shall guarantee a minimum limit available for the Premises equal to the insurance amounts required in this Lease. Landlord may, at any time, and from time to time, inspect and/or copy any and all insurance policies required to be procured by Tenant hereunder.
4.4.3 Landlord and Tenant shall each endeavor to secure an appropriate clause in, or an endorsement upon, each property damage insurance policy obtained by it and covering the Building, the Premises or the personal property, fixtures and equipment located therein or thereon, pursuant to which the respective insurance companies waive subrogation and permit the insured, prior to any loss, to agree with a third party to waive any claim it might have against said third party. The waiver of subrogation or permission for waiver of any claim hereinbefore referred to shall extend to the agents of each party and its employees and, in the case of Tenant, shall also extend to all other persons and entities occupying or using the Premises by, through or under Tenant. If and to the extent that such waiver or permission can be obtained only upon payment of an additional charge then the party benefiting from the waiver or permission shall pay such charge upon demand, or shall be deemed to have agreed that the party obtaining the insurance coverage in question shall be free of any further obligations under the provisions hereof relating to such waiver or permission from such insurance companies.
Subject to the foregoing provisions of this Subsection 4.4.3, and insofar as may be permitted by the terms of the insurance policies carried by it, each party hereby releases the other with respect to any claim which it might otherwise have against the other party for any loss or damage excluding any deductible amounts, to the extent such damage is actually covered or would have been covered by policies of insurance required by this Lease to be carried by the respective parties hereunder. In addition, Tenant agrees to exhaust any and all claims against its insurer(s) prior to commencing an action against Landlord for any property loss.
ARTICLE 5
Landlord’s Covenants
5.1 Affirmative Covenants. Landlord shall, during the term of this Lease provide the following:
Landlord, its cleaning contractor and their respective employees shall have access to the Premises after 6:00 p.m. and before 8:00 a.m. and shall have the right to use, without charge therefor, all light, power and water in the Premises reasonably required to clean the Premises as required hereunder.
If Tenant uses water for any purpose other than ordinary drinking, lavatory and toilet purposes, Landlord may assess a reasonable charge for the additional water so used, or install a water meter and thereby measure Tenant’s water consumption for all purposes. In the latter event, Tenant shall pay the cost of the meter and the cost of installation thereof and shall keep such meter and installation equipment in good working order and repair. Tenant agrees to pay for water consumed, as shown on such meter, together with the sewer charge based on such meter charges, as and when bills are rendered, and if Tenant shall fail to make such payment, Landlord may pay such charges and collect the same from Tenant as Additional Rent.
Landlord shall have the right to discontinue furnishing electricity to the Premises at any time upon not less than thirty (30) days’ notice to Tenant provided Landlord shall, at Landlord’s expense, separately meter the Premises. If Landlord exercises such right, from and after the effective date of such discontinuance, Landlord shall not be obligated to furnish electricity to the Premises, and
(i) Annual Fixed Rent shall be reduced by an amount equal to the product of the square footage of the Premises multiplied by the cost on a per square footage basis (the “Electricity Cost”) of supplying electricity for connected lights and power for space leased to tenants of the Building in the period established by Base Operating Costs;
(ii) Base Operating Costs shall be reduced by the product of the square footage of all areas in the Building leased or intended to be leased to tenants multiplied by the Electricity Cost (on a per square footage basis);
(iii) in the computation of Operating Costs, only the cost of electricity supplied to those portions of the Building other than those leased or intended to be leased to tenants for their exclusive use or occupancy, i.e. only those areas which are so-called common areas, shall be included; and
(iv) Landlord shall permit Landlord’s existing wires, risers, conduits and other electrical equipment of Landlord to be used to supply electricity to Tenant provided that the limits set forth above shall not be exceeded.
From time to time during the term of this Lease, Landlord shall have the right to have an electrical consultant (“Landlord’s Electrical Consultant”) selected by Landlord make a survey of Tenant’s electric usage. The determination of Landlord’s Electrical Consultant shall be conclusive and binding upon Tenant unless Tenant, not later than thirty (30) days following the date upon which the survey is delivered to Tenant, shall advise Landlord in writing if Tenant is of the reasonable opinion that such determination is erroneous. In such event, Tenant shall, at its own expense, obtain from a reputable, independent electrical consultant selected by Tenant (“Tenant’s Electrical Consultant”) its own survey of Tenant’s electric usage. Tenant’s Electrical Consultant and Landlord’s Electrical Consultant shall then seek to agree on a final determination of such change in the electric usage. If they cannot agree, they shall choose a third reputable electrical consultant (the “Independent Electrical Consultant”) the cost of which shall be shared equally by Landlord and Tenant, to make a similar survey. The determination of the electric usage by the Independent Electrical Consultant shall be binding on both parties. In the event that the final determination shows that Tenant has exceeded the requirements set forth in Section 6.2.4, in addition to any other rights Landlord may have hereunder, Tenant shall, upon demand, reimburse Landlord for the cost of the survey performed by Landlord’s Electrical Consultant and the cost, as determined by such consultant, of such excess electricity usage, retroactively from the most recent anniversary of the Commencement Date.
Landlord reserves the right to deny access to the Building and to interrupt the services of the HVAC, plumbing, electrical or other mechanical systems or facilities in the Building when necessary from time to time by reason of accident or emergency, or for repairs, alterations, replacements or improvements which in the reasonable judgment of Landlord are desirable or necessary, until such repairs, alterations, replacements or improvements shall have been completed. Landlord shall use reasonable efforts to minimize the duration of any such interruption and to give to Tenant at least three (3) days’ notice if service is to be interrupted, except in cases of emergency.
Notwithstanding the foregoing, if due to Landlord’s default, (i) the Premises or any portion thereof are unusable by Tenant for a period of more than seven (7) consecutive Business Days following notice from Tenant due to (I) a lack of any of water, sewer, elevator service, access or electricity or (II) the failure by Landlord to perform repairs which Landlord is obligated to perform pursuant to Section 5.1.4, and (ii) Tenant shall, concurrently with the giving of such notice, discontinue use of the Premises or the portion thereof which is unusable as a result (other than for sporadic purposes such as salvage, security or retrieval of property), then as Tenant’s sole remedy the Annual Fixed Rent and Additional Rent on account of Taxes and Operating Costs shall be equitably abated for such portion of the Premises rendered unusable for the period commencing on the expiration of such seven (7) Business Day period and ending on the date that the Premises (or such portion) is rendered usable. If more than fifty percent (50%) of the Premises is rendered unusable and if Tenant shall vacate the entire Premises, then the aforesaid abatement shall be a full abatement. Any notice from Tenant pursuant to the first sentence of this paragraph shall expressly state that the failure of Landlord to cure any claimed default timely shall give rise to Tenant’s rights of rent abatement.
(a) Tenant shall be entitled to use (i) three (3) reserved parking spaces located near the main Building entrance (to be identified with lettering or numbering painted on the parking spaces), (ii) seven (7) reserved parking spaces located in the covered parking facility in a location determined by mutual agreement of Landlord and Tenant and (iii) eighty-one (81) parking spaces in the surface parking lot located on the Property on an unreserved, first come – first served basis. All such parking spaces shall be provided at no additional charge throughout the term of this Lease.
(b) Tenant, its employees and invitees shall use the parking lots on the Property (collectively, the “Parking Facilities”) for the parking of passenger vehicles only. No vehicles shall be left in the Parking Facilities overnight for more than seven (7) consecutive days without first notifying Landlord or its designated property management company.
(c) Landlord reserves the right to designate and redesignate reserved and unreserved parking areas within the Parking Facilities (for some or all tenants), to implement and modify systems to regulate access to and use of the Parking Facilities, to change entrances or exits and alter traffic flow within the Parking Facilities and to modify the Parking Facilities to any extent.
(d) Landlord reserves the right to implement and modify systems to regulate access to and use of the Parking Facilities, including, without limitation, parking passes, parking stickers, and card key access, or any other system reasonably designated by Landlord.
(e) Tenant acknowledges that Landlord is not required to provide any security or security services for the Parking Facilities.
(f) Tenant hereby indemnifies and shall hold Landlord harmless from and against all claims, loss, cost, or damage arising out of the use by Tenant and its employees and invitees of the Parking Facilities, except to the extent caused by the gross negligence or willful misconduct of Landlord or Landlord’s agent or employees.
(g) Tenant shall use all reasonable efforts to cause its employees and invitees to comply with all reasonable rules and regulations pertaining to the Parking Facilities, as the same may be established and amended, from time to time, and Tenant hereby agrees to indemnify and hold Landlord harmless from any claim, cost or liability arising from any breach by Tenant, or its employees or invitees of any such rules or regulations.
ARTICLE 6
Tenant’s Additional Covenants
6.1 Affirmative Covenants. Tenant shall do the following:
6.2 Negative Covenants. Tenant shall not do the following.
6.2.1 Assignment and Subletting.
(a) Tenant shall not assign, mortgage, pledge, hypothecate, encumber or otherwise transfer this Lease or any interest herein or sublease (which term shall be deemed to include the granting of concessions and licenses and the like) all or any part of the Premises or suffer or permit this Lease or the leasehold estate hereby created or any other rights arising under this Lease to be assigned, transferred, mortgaged, pledged, hypothecated or encumbered, in whole or in part, whether voluntarily, involuntarily or by operation of law, or permit the use or occupancy of the Premises by anyone other than Tenant, or the Premises to be offered or advertised for assignment or subletting, except as hereinafter provided. Unless Tenant’s stock shall be traded on a domestic national securities exchange, the following shall be deemed to be an assignment of the Lease; (i) any transfer of the stock or partnership or beneficial interests or other evidences of ownership of Tenant or the issuance of additional stock or partnership or beneficial interests or other indicia of ownership in Tenant which results in a change of control of Tenant or (ii) any transaction pursuant to which Tenant is merged or consolidated with another entity or (iii) any transaction pursuant to which all or substantially all of Tenant’s assets are transferred to any other entity. The term “control” shall mean the ownership, directly or indirectly, of more than fifty percent (50%) of the outstanding voting stock of a corporation or other equity interest if Tenant is not a corporation.
(b) Notwithstanding the foregoing, Tenant may, without the need for Landlord’s consent, but only upon not less than ten (10) days prior notice to Landlord, assign its interest in this Lease (a “Permitted Assignment”) to (i) any entity which shall be a successor to Tenant either by merger or consolidation (a “Merger”) or to a purchaser of all or substantially all of Tenant’s assets in either case provided the successor or purchaser shall have a tangible net worth, after giving effect to the transaction, of not less than the greater of the net worth of Tenant named in Section 1.1 as of the Date of this Lease or the net worth of Tenant named in Section 1.1 immediately prior to such Merger or sale (the “Required Net Worth”) or (ii) any entity (an “Affiliate”) which is a direct or indirect subsidiary or parent (or a direct or indirect subsidiary of a parent) of the named Tenant set forth in Section 1.1, in either case of (i) or (ii) only so long as (I) the principal purpose of such assignment is not the acquisition of Tenant’s interest in this Lease (except if such assignment is made for a valid intracorporate business purpose to an Affiliate) and is not made to circumvent the provisions of this Section 6.2.1, (II) except if pursuant to a Merger permitted by clause (i) above, Tenant shall, contemporaneously with such assignment, provide Landlord with a fully executed counterpart of any such assignment, which assignment shall comply with the provisions of this Section 6.2.1 and shall include an agreement by the assignee in form reasonably satisfactory to Landlord, to be bound by all of the terms of this Lease, (III) in the case of an actual or deemed assignment pursuant to clause (i), Tenant shall provide Landlord, not less than ten (10) days in advance of any such assignment, evidence reasonably satisfactory to Landlord of the Required Net Worth of the successor or purchaser, and (IV) there shall not be a Default of Tenant at the effective date of such assignment. Tenant shall also be permitted, without the need for Landlord’s consent, but only upon not less than ten (10) days prior notice to Landlord, to enter into any sublease (a “Permitted Sublease”) with any Affiliate provided that such sublease shall expire upon any event pursuant to which the sublessee thereunder shall cease to be either an Affiliate or the initially named Tenant. Any assignment to an Affiliate shall provide that it may, at Landlord’s election, be terminated and deemed void if during the term of this Lease such assignee or any successor to the interest of Tenant hereunder shall cease to be an Affiliate.
(c) In the event that Tenant shall intend to enter into any sublease or assignment other than a Permitted Sublease or Permitted Assignment, then Tenant shall, not sooner than ninety (90) days and not later than thirty (30) days prior to the proposed commencement of such sublease or assignment, give Landlord notice of such intent, identifying the proposed subtenant or assignee, all of the terms and conditions of the proposed sublease or assignment and such other information as the Landlord may reasonably request. In such case Landlord may elect (a) to terminate the term of this Lease if Tenant intends to assign this Lease, or to sublease (including expansion options) more than fifty percent (50%) of the Premises for a term (including extension options) of more than 75% of the remaining term hereof or (b) to exclude from the Premises, for the term of such proposed sublease, the portion thereof to be sublet if the conditions set forth in (a) do not prevail, by giving notice to Tenant of such election not later than thirty (30) days after receiving notice of such intent from Tenant. If Landlord shall give such notice within such thirty (30) day period, upon the later to occur of (A) the proposed date of commencement of such proposed sublease or assignment, or (B) the date which is thirty (30) days after Landlord’s notice, the term of this Lease shall terminate or the Premises shall be reduced to exclude the portion of the Premises intended for subletting, in which case Annual Fixed Rent and Tenant’s Percentage shall be correspondingly reduced. If Landlord shall give its consent, Tenant may enter into such sublease or assignment on the terms and conditions set forth in such notice from Tenant within six (6) months of the initially proposed sublease commencement date. If Tenant shall not enter into such sublease or assignment within such period and shall still desire to enter into any sublease or assignment, or if Tenant shall materially change the terms and conditions thereof following the date of Tenant’s notice to Landlord, the first sentence of this paragraph shall again become applicable.
(d) If this Lease is assigned or if the Premises or any part thereof are sublet (or occupied by any party other than Tenant and its employees) Landlord may collect the rents from such assignee, subtenant or occupant, as the case may be, and apply the net amount collected to the Annual Fixed Rent and Additional Rent herein reserved, but no such collection shall be deemed a waiver of the provisions set forth in the first paragraph of this Subsection 6.2.1, the acceptance by Landlord of such assignee, subtenant or occupant, as the case may be, as a tenant, or a release of Tenant from the future performance by Tenant of its covenants, agreements or obligations contained in this Lease.
(e) Any sublease of all or any portion of the Premises shall provide that it is subject and subordinate to this Lease and to the matters to which this Lease is or shall be subject or subordinate, that other than the payment of Annual Fixed Rent and Additional Rent due pursuant to Sections 4.1, 4.2.1 and 4.2.2 or any obligation relating solely to those portions of the Premises which are not part of the subleased premises, the subtenant shall comply with and be bound by all of the obligations of Tenant hereunder, that unless Landlord waives such prohibition, the subtenant may not enter into any sub-sublease, sublease assignment, license or any other agreement granting any right of occupancy of any portion of the subleased premises; and that Landlord shall be an express beneficiary of any such obligations, and that in the event of termination of this Lease or reentry or dispossession of Tenant by Landlord under this Lease, Landlord may, at its option, take over all of the right, title and interest of Tenant, as sublessor under such sublease, and such subtenant shall, at Landlord’s option, attorn to Landlord pursuant to the then executory provisions of such sublease, except that neither Landlord nor any mortgagee of the Property, as holder of a mortgage or as Landlord under this Lease if such mortgagee succeeds to that position, shall (a) be liable for any act or omission of Tenant under such sublease, (b) be subject to any credit, counterclaim, offset or defense which theretofore accrued to such subtenant against Tenant, or (c) be bound by any previous modification of such sublease unless consented to by Landlord and such mortgagee or by any previous prepayment of more than one (1) month’s rent, (d) be bound by any covenant of Tenant to undertake or complete any construction of the Premises or any portion thereof, (e) be required to account for any security deposit of the subtenant other than any security deposit actually received by Landlord, (f) be bound by any obligation to make any payment to such subtenant or grant any credits unless specifically agreed to by Landlord and such mortgagee, (g) be responsible for any monies owing by Landlord to the credit of Tenant or (h) be required to remove any person occupying the Premises or any part thereof; and such sublease shall provide that the subtenant thereunder shall, at the request of Landlord, execute a suitable instrument in confirmation of such agreement to attorn. The provisions of this paragraph shall not be deemed a waiver of the provisions set forth in the first paragraph of this Subsection 6.2.1.
(f) Tenant shall not enter into, nor shall it permit any person having an interest in the possession, use, occupancy or utilization of any part of the Premises to enter into, any sublease, license, concession, assignment or other agreement for use, occupancy or utilization of the Premises (i) which provides for rental or other compensation based on the income or profits derived by any person or on any other formula such that any portion of such sublease rental, or other consideration for a license, concession, assignment or other occupancy agreement, would fail to qualify as “rents from real property” within the meaning of Section 856(d) of the Internal Revenue Code or any similar or successor provision thereto, or would otherwise disqualify Landlord for treatment as a real estate investment trust under Sections 856-869 of the Internal Revenue Code, (ii) under which fifty percent (50%) or more of the total rent or other compensation received by Tenant is attributable to personal property or (iii) which would otherwise be subject to the prohibitions of Section 406 of ERISA or result in imposition of any tax pursuant to Section 511 or Section 4975 of the Internal Revenue Code; and any such purported lease, sublease, license, concession or other agreement shall be absolutely void and ineffectual as a conveyance of any right or interest in the possession, use, occupancy or utilization of such part of the Premises.
(g) No subletting or assignment shall in any way impair the continuing primary liability of Tenant hereunder, and no consent to any subletting or assignment in a particular instance shall be deemed to be a waiver of the obligation to obtain the Landlord’s written approval in the case of any other subletting or assignment. The joint and several liability of Tenant named herein and any immediate and remote successor in interest of Tenant (by assignment or otherwise), and the due performance of the obligations of this Lease on Tenant’s part to be performed or observed, shall not in any way be discharged, released or impaired by any (a) agreement which modifies any of the rights or obligations of the parties under this Lease, (b) stipulation which extends the time within which an obligation under this Lease is to be performed, (c) waiver of the performance of an obligation required under this Lease, or (d) failure to enforce any of the obligations set forth in this Lease. No assignment, subletting or occupancy shall affect the Permitted Uses. Any subletting, assignment or other transfer of Tenant’s interest in this Lease in contravention of this Subsection 6.2.1 shall be voidable at Landlord’s option. Tenant shall not occupy any space in the Building (by assignment, sublease or otherwise) other than the Premises.
(h) If the rent and other sums (including, without limitation, all monetary payments plus the reasonable value of any services performed or any other thing of value given by any assignee or subtenant in consideration of such assignment or sublease), either initially or over the term of any assignment or sublease (other than a Permitted Assignment of a Permitted Sublease), payable by such assignee or subtenant exceed the Annual Fixed Rent plus Additional Rent called for hereunder with respect to the space assigned or sublet, Tenant shall pay forty percent (40%) of such excess to Landlord, as Additional Rent, payable monthly at the time for payment of Annual Fixed Rent. Nothing in this paragraph shall be deemed to abrogate the provisions of this Subsection 6.2.1 and Landlord’s acceptance of any sums pursuant to this paragraph shall not be deemed a granting of consent to any assignment of the Lease or sublease of all or any portion of the Premises.
Tenant shall not, at any time, directly or indirectly, employ or permit the employment of any contractor, mechanic or laborer in the Premises, if such employment will interfere or cause any conflict with other contractors, mechanics or laborers engaged in the construction, maintenance or operation of the Building by Landlord, Tenant or others. In the event of any such interference or conflict, Tenant, upon demand of Landlord, shall cause all contractors, mechanics or laborers causing such interference or conflict to leave the Building immediately.
Notwithstanding the foregoing, Landlord shall not unreasonably withhold consent for one (1) sign to be maintained, after the Commencement Date, on the exterior façade of the Building in the location previously occupied by the Statoil/▇▇▇▇ sign and with dimensions substantially the same as the Statoil/▇▇▇▇ sign. Tenant agrees that if, at any time during the term, another tenant of the Building leases more than a single floor of the Building and if such tenant desires to place an exterior sign in the location occupied by Tenant’s sign, Tenant shall, at its sole cost and expense, relocate its existing sign to a location on the façade of the Building facing the beltway in an exact location to be reasonably determined by Landlord following discussion with Tenant. Notwithstanding the foregoing, Landlord agrees that if Tenant is required to relocate its sign pursuant to the terms of this paragraph more than once during the term, then Landlord shall pay the cost of all sign relocations following the initial relocation. Tenant shall be required to obtain at its expense all permits and approvals required for the installation of any such sign (but shall not be permitted to seek any zoning or other similar relief for such sign without Landlord’s consent) and shall at its expense keep all such permits and approvals in full force and effect. Tenant shall keep such sign in good condition through the term of the Lease and shall, if Landlord so requests, remove such sign at the end of the term of the Lease and repair any damage caused by such removal.
Tenant agrees that if it shall generate, store, release, spill, dispose of or transfer to the Premises or Property any Hazardous Materials, it shall forthwith remove the same, at its sole cost and expense, in the manner provided by all applicable Environmental Laws (as hereinafter defined), regardless of when such Hazardous Materials shall be discovered. Furthermore, Tenant shall pay any fines, penalties or other assessments imposed by any governmental agency with respect to any such Hazardous Materials and shall forthwith repair and restore any portion of the Premises or Property which it shall disturb in so removing any such Hazardous Materials to the condition which existed prior to Tenant’s disturbance thereof.
Tenant agrees to deliver promptly to Landlord any notices, orders or similar documents received from any governmental agency or official concerning any violation of any Environmental Laws or with respect to any Hazardous Materials affecting the Premises or Property. In addition, Tenant shall, within ten (10) days of receipt, accurately complete any questionnaires from Landlord or other informational requests relating to Tenant’s use of the Premises and, in particular, to Tenant’s use, generation, storage and/or disposal of Hazardous Materials at, to, or from the Premises.
Tenant shall indemnify, defend (by counsel satisfactory to Landlord), protect, and hold Landlord free and harmless from and against any and all claims, or threatened claims, including without limitation, claims for death of or injury to any person or damage to any property, actions, administrative proceedings, whether formal or informal, judgments, damages, punitive damages, liabilities, penalties, fines, costs, taxes, assessments, forfeitures, losses, expenses, attorneys’ fees and expenses, consultant fees, and expert fees that arise from or are caused in whole or in part, directly or indirectly, by (i) the presence or suspected presence in, on, under or about the Premises or discharge in or from the Premises of any Hazardous Materials, or Tenant’s use, analysis, storage, transportation, disposal, release, threatened release, discharge or generation of Hazardous Materials to, in, on, under, about or from the Premises, or (ii) Tenant’s failure to comply with any Environmental Laws. Tenant’s obligations hereunder shall include, without limitation, and whether foreseeable or unforeseeable, all costs (including, without limitation, capital, operating and maintenance costs) incurred in connection with any investigation or monitoring of site conditions, repair, cleanup, containment, remedial, removal or restoration work, or detoxification or decontamination of the Premises, and the preparation and implementation of any closure, remedial action or other required plans in connection therewith. For purposes of this Section 6.2.8, any acts or omissions of Tenant, or its subtenants or assignees or its or their employees, agents, or contractors (whether or not they are negligent, intentional, willful or unlawful) shall be attributable to Tenant.
The term “Hazardous Materials” shall mean and include any oils, petroleum products, asbestos, radioactive, biological, medical or infectious wastes or materials, and any other toxic or hazardous wastes, materials and substances which are defined, determined or identified as such in any Environmental Laws, or in any judicial or administrative interpretation of Environmental Laws.
The term “Environmental Laws” shall mean any and all federal, state and municipal statutes, laws, regulations, ordinances, rules, judgments, orders, decrees, codes, plans, injunctions, permits, concessions, grants, franchises, licenses, agreements or other governmental restrictions relating to the environment or to emissions, discharges or releases of pollutants, contaminants, petroleum or petroleum products, medical, biological, infectious, toxic or hazardous substances or wastes into the environment including, without limitation, ambient air, surface water, ground water or land, or otherwise relating to the manufacture, processing, distribution, use, treatment, storage, disposal, transport or handling of pollutants, contaminants, petroleum or petroleum products, medical, biological, infectious, toxic or hazardous substances or wastes or the cleanup or other remediation thereof.
In the event that (i) at least twenty-five percent (25%) of the Premises Rentable Area is damaged by fire or other casualty to such an extent that the time reasonably necessary for Landlord to make repairs as required in the ordinary course shall exceed the lesser of nine (9) months or that period of time equal to one-half of the then remainder of the term of this Lease as of the date of fire or other casualty or (ii) at least twenty-five percent (25%) of the Premises Rentable Area or reasonable access to the Premises is damaged by fire or other casualty and repairs are not substantially completed (or reasonable access restored) within nine (9) months from the date of the fire or other casualty, or (iii) at least twenty-five percent (25%) of the Premises Rentable Area is taken by an exercise of eminent domain, then in any such case Tenant shall have the right to terminate the term of this Lease by giving notice of its desire to do so to Landlord within thirty (30) days after, in the first or third case, such damage or taking, and in the second case, the expiration of such nine-month period, whereupon on the date thirty (30) days after the giving of such notice, the term of this Lease shall terminate with the same force and effect as if such date were the date on which the term of this Lease were scheduled to expire by effluxion of time. Notwithstanding the foregoing to the contrary, Tenant shall have no right to terminate the term of this Lease due to a fire or other casualty if the case thereof was due to the negligence or other wrongful conduct of Tenant or any subtenant or assignee or any agent, employee or invitee of any of the foregoing.
At any time after such termination, in lieu of recovering damages pursuant to the provisions of the immediately preceding paragraph with respect to any period after the date of demand therefor, at Landlord’s election, Tenant shall pay to Landlord the greater of (i) the amount, if any, by which (A) the Annual Fixed Rent, Additional Rent and other charges which would be payable hereunder from the date of such demand to the end of what would be the then unexpired term of this Lease had such termination not occurred, shall exceed (B) the then fair rental value of the Premises for the same period, reduced to amortize over such period all costs or expenses which Landlord would incur to obtain such fair market rent, or (ii) an amount equal to the lesser of (x) the Annual Fixed Rent, Additional Rent and other charges that would have been payable for the remainder of the term of this Lease had such termination not occurred or (y) the aggregate of the Annual Fixed Rent, Additional Rent and other charges accrued in the twelve (12) months ended next prior to such termination (without reduction for any free rent or other concession or abatement) except that in the event the term of this Lease is so terminated prior to the expiration of the first full year of the term of this Lease, the damages which Landlord may elect to recover pursuant to clause (ii) (y) of this paragraph shall be calculated as if such termination had occurred on the first anniversary of the Commencement Date and there had been no so-called free rent or other rental concession or any rental abatement.
Nothing contained in this Lease shall, however, limit or prejudice the right of Landlord to prove for and obtain in proceedings for bankruptcy or insolvency by reason of the termination of this Lease, an amount equal to the maximum allowed by any statute or rule of law in effect at the time when, and governing the proceedings in which, the damages are to be proved, whether or not the amount be greater than, equal to, or less than the amount of the loss or damages referred to above.
In case of any Default of Tenant, re-entry, expiration and repossession by summary proceedings or otherwise, Landlord may (i) relet the Premises or any part or parts thereof, either in the name of Landlord or otherwise, for a term or terms which may at Landlord’s option be equal to or less than or exceed the period which would otherwise have constituted the balance of the term of this Lease and may grant concessions or free rent to the extent that Landlord considers advisable and necessary to relet the same and (ii) may make such alterations, repairs and decorations in the Premises as Landlord in its sole judgment considers advisable and necessary for the purpose of reletting the Premises; and the making of such alterations, repairs and decorations shall not operate or be construed to release Tenant from liability hereunder as aforesaid. Landlord shall in no event be liable in any way whatsoever for failure to relet the Premises, or, in the event that the Premises are relet, for failure to collect the rent under such reletting.
To the fullest extent permitted by law, Tenant hereby expressly waives any and all rights of redemption granted under any present or future laws in the event of Tenant being evicted or dispossessed, or in the event of Landlord obtaining possession of the Premises, by reason of the violation by Tenant of any of the covenants and conditions of this Lease.
If any Superior Lessor or Superior Mortgagee or the nominee or designee of any Superior Lessor or Superior Mortgagee shall succeed to the rights of Landlord under this Lease, whether through possession or foreclosure action or delivery of a new lease or deed, or otherwise, then at the request of such party so succeeding to Landlord’s rights (herein called “Successor Landlord”) and upon such Successor Landlord’s written agreement to accept Tenant’s attornment, Tenant shall attorn to and recognize such Successor Landlord as Tenant’s landlord under this Lease and shall promptly execute and deliver any instrument that such Successor Landlord may reasonably request to evidence such attornment. Upon such attornment, this Lease shall continue in full force and effect as a direct lease between the Successor Landlord and Tenant upon all of the terms, conditions and covenants as are set forth in this Lease, except that the Successor Landlord (unless formerly the landlord under this Lease) shall not be (a) liable in any way to Tenant for any act or omission, neglect or default on the part of Landlord under this Lease, (b) responsible for any monies owing by or on deposit with Landlord to the credit of Tenant, (c) subject to any counterclaim or setoff which theretofore accrued to Tenant against Landlord, (d) bound by any modification of this Lease subsequent to such Superior Lease or Superior Mortgage, or by any previous prepayment of Annual Fixed Rent or Additional Rent for more than one (1) month, which was not approved in writing by the Successor Landlord, (e) liable to the Tenant beyond the Successor Landlord’s interest in the Property, (f) responsible for the performance of any work to be done by Landlord under this Lease to render the Premises ready for occupancy by the Tenant, or (g) required to remove any person occupying the Premises or any part thereof, except if such person claims by, through or under the Successor Landlord. Tenant agrees at any time and from time to time to execute a suitable instrument in confirmation of Tenant’s agreement to attorn, as aforesaid.
ARTICLE 10
Miscellaneous Provisions
Without incurring any liability to Tenant, Landlord may permit access to the Premises and open the same, whether or not Tenant shall be present, upon any demand of any receiver, trustee, assignee for the benefit of creditors, sheriff, marshal or court officer Landlord reasonably believes is entitled to such access for the purpose of taking possession of, or removing, Tenant’s property or for any other lawful purpose (but this provision and any action by Landlord hereunder shall not be deemed a recognition by Landlord that the person or official making such demand has any right or interest in or to this Lease, or in or to the Premises), or upon demand of any representative of the fire, police, building, sanitation or other department of the city, state or federal governments.
Tenant acknowledges that the terms under which the Landlord has leased the Premises to Tenant (including, without limitation, the rental rate(s), term and other financial and business terms), constitute confidential information of Landlord (“Confidential Information”). Tenant covenants and agrees to keep the Confidential Information confidential and not to disclose the same to third parties; provided, however, that such Confidential Information may be disclosed by Tenant to those of its officers, employees, attorneys, accountants, lenders and financial advisors (collectively, “Representatives”) who need to know such information in connection with Tenant’s use and occupancy of the Premises and for financial reporting and credit related activities. Tenant furthermore agrees to inform its Representatives of the confidential nature of such Confidential Information and to use all reasonable efforts to cause each Representative to treat such Confidential Information confidentially and in accordance with the terms of this paragraph. Notwithstanding the foregoing, Landlord acknowledges that Tenant is engaged as a Federal Government contractor and, as such, may, now or in the future, be subject to audit or review wherein Tenant may be required to disclose to the Federal Government the terms and conditions of this Lease.
The term “Landlord”, so far as covenants or obligations to be performed by Landlord are concerned, shall be limited to mean and include only the owner or owners at the time in question of Landlord’s interest in the Property, and in the event of any transfer or transfers of such title to said property, Landlord (and in case of any subsequent transfers or conveyances, the then grantor) shall be concurrently freed and relieved from and after the date of such transfer or conveyance, without any further instrument or agreement, of all liability with respect to the performance of any covenants or obligations on the part of Landlord contained in this Lease thereafter to be performed, it being intended hereby that the covenants and obligations contained in this Lease on the part of Landlord, shall, subject as aforesaid, be binding on Landlord, its successors and assigns, only during and in respect of their respective period of ownership of such interest in the Property.
Notwithstanding the foregoing, in no event shall the acquisition of Landlord’s interest in the Property by a purchaser which, simultaneously therewith, leases Landlord’s entire interest in the Property back to Landlord or the seller thereof be treated as an assumption by operation of law or otherwise, of Landlord’s obligations hereunder. Tenant shall look solely to such seller-lessee, and its successors from time to time in title, for performance of Landlord’s obligations hereunder. The seller-lessee, and its successors in title, shall be the Landlord hereunder unless and until such purchaser expressly assumes in writing the Landlord’s obligations hereunder.
Tenant shall not assert nor seek to enforce any claim for breach of this Lease against any of Landlord’s assets other than Landlord’s interest in the Property, and Tenant agrees to look solely to such interest for the satisfaction of any liability or claim against Landlord under this Lease, it being specifically agreed that in no event whatsoever shall Landlord ever be personally liable for any such liability. In addition, Landlord hereby notifies Tenant that the Declaration of Trust of Hub Properties Trust provides, and Tenant agrees, that no trustee, officer, director, general or limited partner, member, shareholder, beneficiary, employee or agent of Landlord (including any person or entity from time to time engaged to supervise and/or manage the operation of Landlord) shall be held to any liability, jointly or severally, for any debt, claim, demand, judgment, decree, liability or obligation of any kind (in tort, contract or otherwise) of, against or with respect to Landlord or arising out of any action taken or omitted for or on behalf of Landlord.
Where provision is made in this Lease for Landlord’s consent and Tenant shall request such consent and Landlord shall fail or refuse to give such consent, Tenant shall not be entitled to any damages for any withholding by Landlord of its consent, it being intended that Tenant’s sole remedy shall be an action for specific performance or injunction, and that such remedy shall be available only in those cases where Landlord is expressly required not to withhold its consent unreasonably.
Tenant shall prepare plans and specifications for the Dish System in accordance with the requirements of Exhibit C, which plans and specifications shall be subject to review and approval by Landlord as provided in Exhibit C. Upon final approval by Landlord of Tenant’s plans and specifications for the Dish System, Tenant may install the Dish System provided that such installation shall be performed in accordance with any requirements of Landlord’s insurance carrier(s), and with the requirements of Section 6.2.6, Exhibit C and all other applicable provisions of this Lease.
Landlord shall have no obligation to provide any services to the Dish Area or to make any alterations, repairs or replacements to any portion of the Building or Property in order to accommodate the installation or operation of the Dish System. Tenant agrees that it shall be required, at its sole cost and expense, to perform any roof reinforcement reasonably required by Landlord to accommodate the weight of the Dish on the Building roof and to avoid any roof penetrations other than as expressly approved by Landlord in writing in advance.
Tenant shall, at its sole cost and expense, perform all repairs and maintenance to the Dish System as are necessary to keep it in good and clean working order, appearance and condition, reasonable use and wear thereof excepted, and Tenant shall promptly repair any damage to the Building or Property caused by the installation or operation of the Dish System. The operation of the Dish System shall, at all times, be in compliance with all applicable codes, laws, rules and regulations. Tenant may not relocate or modify any portion of the Dish System without, in each instance, obtaining Landlord’s prior written approval to such relocation or modification, which shall not be unreasonably withheld, conditioned or delayed. All components of the Dish System shall be at the sole risk of Tenant and Landlord shall have no liability to Tenant in the event any portion of the Dish System is damaged for any reason.
The Dish System shall provide communications for Tenant only, and no other person or firm shall make use of the Dish System.
Tenant shall, at the expiration or earlier termination of Tenant’s right to occupy the Premises, remove the entire Dish System (except that Landlord shall have the right to require Tenant to leave any cabling, wires or conduit installed within the Building), repair any damage caused by such removal, and restore the Dish Area to a condition substantially the same condition as existed prior to the installation of the Dish System. Tenant agrees that its obligations hereunder shall be subject to the provisions of Section 6.1.9, including all of Landlord’s rights and remedies.
Landlord reserves the right, upon reasonable notice to Tenant, to require Tenant to relocate the Dish System or any of its constitute components, at Tenant’s sole cost and expense, if necessary in connection with any repairs, renovations, improvements or additions to the Building or Property. In addition, Landlord reserves the right to require Tenant to relocate the Dish to another portion of the roof designated by Landlord for any other reason in Landlord’s sole discretion, provided such other portion of the roof is adequate for Tenant’s purposes and Landlord pays the reasonable costs of relocating the Dish.
Tenant shall be entitled to obtain access to the Dish Area both during and before and after Normal Building Operating Hours, but only if (i) Tenant shall have given Landlord reasonable advance notice of the need therefor, and (ii) Tenant is accompanied by an authorized representative of Landlord during such access. Any such access shall be subject to Landlord’s reasonable security measures and, in the event access is required before or after Normal Building Operating Hours, Landlord may require Tenant to pay, as Additional Rent, the reasonable costs incurred by Landlord to provide such access to Tenant.
Tenant shall not allow the Dish System to interfere with any equipment installed or operating in or from the Building as of the date Tenant commences operation of, or shall subsequently modify, Tenant’s Dish.
Witness the execution hereof under seal on the day and year first above written.
Landlord:
HUB PROPERTIES TRUST
By:
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Senior Vice President
Tenant:
DIMENSIONS INTERNATIONAL, INC.
By:
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: VP Corporate Operations
Hereunto duly authorized
EXHIBIT A
[Floor plan]