EXHIBIT 10.61
LEASE AGREEMENT
by and between
▇▇▇▇▇ REIT, LLC - VA I a limited liability company
("Landlord")
and
ABB POWER GENERATION INC.
("Tenant")
dated
June 1, 1999
for
Suite Number 400
containing
80,000 square feet of Rentable Floor Area
Term: Eighty Four (84) Months
TABLE OF CONTENTS
Page
1. Certain Definitions.......................................... 1
2. Lease of Premises............................................ 2
3. Term......................................................... 3
4. Possession................................................... 3
5. Rental Payments.............................................. 3
6. Base Rental.................................................. 4
7. Additional Rental............................................ 4
8. Operating Expenses........................................... 5
9. Tenant Taxes; Rent Taxes..................................... 8
10. Payments..................................................... 8
11. Late Charges................................................. 8
12. Use Rules.................................................... 9
13. Alterations.................................................. 9
14. Repairs...................................................... 10
15. Landlord's Right of Entry.................................... 10
16. Insurance.................................................... 10
17. Waiver of Subrogation........................................ 11
i
18. Default..................................................... 12
19. Waiver of Breach............................................ 15
20. Assignment and Subletting................................... 15
21. Destruction................................................. 16
22. Intentionally Omitted....................................... 17
23. Services by Landlord........................................ 17
24. Attorneys' Fees and Homestead............................... 17
25. Time........................................................ 17
26. Subordination, Attornment and Non-Disturbance............... 18
27. Estoppel Certificates....................................... 18
28. Cumulative Rights........................................... 19
29. Holding Over................................................ 19
30. Surrender of Premises....................................... 19
31. Notices..................................................... 20
32. Damage or Theft of Personal Property........................ 20
33. Eminent Domain.............................................. 20
34. Parties..................................................... 21
35. Indemnification............................................. 22
36. Force Majeure............................................... 22
ii
37. Landlord's Liability........................................ 22
38. Landlord's Covenant of Quiet Enjoyment...................... 22
39. Letter of Credit............................................ 23
40. Hazardous Substances........................................ 27
41. Submission of Lease......................................... 27
42. Severability................................................ 27
43. Entire Agreement............................................ 27
44. Headings.................................................... 28
45. Broker...................................................... 28
46. Governing Law............................................... 28
47. Special Stipulations........................................ 28
48. Authority................................................... 28
Rules and Regulations
Exhibit "A" - Legal Description
Exhibit "B" - Floor Plan
Exhibit "C" - Supplemental Notice
Exhibit "D" - Construction Obligations
Exhibit "D-1" - Plans and Specifications
Exhibit "D-2" - Coordination of Layout Work by Landlord
Exhibit "D-3" - Materials Standards
Exhibit "E" - Building Standard Services
Exhibit "E-1" - Janitorial Specifications
Exhibit "F" - Special Stipulations
Exhibit "G" - Refusal Space
Exhibit "H" - Estimate
iii
LEASE AGREEMENT
---------------
THIS LEASE AGREEMENT ("Lease"), is made and entered into this 1/st/ day of
June 1999 by and between Landlord and Tenant.
W I T N E S S E T H:
- - - - - - - - - -
1. Certain Definitions. For purposes of this Lease, the following terms
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shall have the meanings hereinafter ascribed thereto:
(a) Landlord: ▇▇▇▇▇ REIT, LLC - VA I
(b) Landlord's Address:
c/▇ ▇▇▇▇▇ Capital, Inc.
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
(c) Tenant: ABB POWER GENERATION INC.
(d) Tenant's Address:
Prior to the Rental Commencement Date:
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
On and after the Rental Commencement Date:
▇▇▇▇▇ ▇▇▇
____ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(e) Building Address:
____ Waterford ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
(f) Suite Number: 400
(g) Rentable Floor Area of the Demised Premises:
80,000 square feet (subject to the provisions of Article 1 and
the Special Stipulations attached to this Lease)
(h) Rentable Floor Area of the Building:
97,350 square feet
(i) Lease Term: As set forth in Article 3.
(j) Base Rental Rate:
RATE PER SQUARE FOOT
OF RENTABLE FLOOR AREA
LEASE YEAR OF DEMISED PREMISES
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FIRST YEAR $11.95/sq. ft. (subject to
adjustment as set forth in Special
Stipulation 10 of this Lease).
SECOND YEAR AND
EACH LEASE YEAR THEREAFTER 102.5% of the Base Rental Rate for
the immediately preceding Lease
Year
(k) Rental Commencement Date: The later of (x) April 1, 2000, or (y)
the earlier of (I) the date which is ten (10) days after Substantial
Completion (as defined in Paragraph 1[i] of Exhibit "D" attached hereto) or
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(II) the date upon which Tenant takes possession and occupies any portion
of the Demised Premises for business purposes.
(l) Construction Allowance for Demised Premises: $20.00 per square
foot of Rentable Floor Area of the Demised Premises as of December 31,
1999.
(m) Broker(s): ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, Inc. and ADEVCO Realty Group,
LLC.
2. Lease of Premises. Landlord, in consideration of the covenants and
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agreements to be performed by Tenant, and upon the terms and conditions
hereinafter stated, does hereby rent and lease unto Tenant, and Tenant does
hereby rent and lease from Landlord, certain premises (the "Demised Premises")
in the building (hereinafter referred to as "Building") located or to be located
on that certain tract of land (the "Land") more particularly described on
Exhibit "A" attached hereto and by this reference made a part hereof, which
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Demised Premises comprise 80,000 square feet of Rentable Floor Area (subject to
the provisions of Article 1 and the Special Stipulations attached to this Lease)
and are outlined on the floor plans attached hereto as Exhibit "B" and by this
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reference made a part hereof, with no easement for light, view or air included
in the Demised Premises or being granted hereunder. The "Project" is comprised
of the Building, the Land, the Building's parking facilities, any walkways,
covered walkways or other means of access to the Building and the Building's
parking facilities, all common areas, including any lobbies or plazas, and any
other improvements or landscaping on the Land. For purposes of this Lease,
"common areas" shall include any improvements, areas and facilities from time to
time made available by Landlord, in Landlord's sole discretion, and upon such
conditions as Landlord shall reasonably determine, for the non-exclusive, common
and joint use or benefit of Landlord, Tenant and other tenants, occupants and
users of the Project, and their respective employees, agents, subtenants,
concessionaires, licensees, customers and invitees, or any of them. The common
areas may include (not to be deemed a representation as to their availability),
but are not limited to, sidewalks, parking areas, access roads, driveways,
serviceways, tunnels, loading docks, and landscaped areas, together with all
hallways, lobbies, corridors, elevators, entrances and exits, restrooms,
stairways and other similar areas within the Building designated by Landlord,
from time to time, for the general use of all of the occupants of the Building.
For such period of time as Tenant has the right under this Lease to occupy the
Demised Premises, Tenant shall have the nonexclusive right to use the common
areas in common with Landlord, Tenant and other tenants, occupants and users of
the Project, and their respective employees, agents, subtenants,
concessionaires, licensees, customers and invitees. For purposes of this Lease,
the Rentable Floor Area of the Demised Premises shall be the Rentable Area of
the Demised Premises (and the Rentable Floor Area of the Building shall be the
Rentable Area of the Building from time to time) as defined and determined in
accordance with the
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American National Standard Method of Measuring Floor Area in Office Buildings,
ANSI/BOMA Z65.1-1996 published by the Building Owners and Managers Association
International and certified by Landlord's architect.
3. Term. The term of this Lease ("Lease Term") shall commence on the
----
date first hereinabove set forth, and, unless sooner terminated as provided in
this Lease, shall end on the expiration of the period designated in Article 1(i)
above, which period shall commence on the Rental Commencement Date, unless the
Rental Commencement Date shall be other than the first day of a calendar month,
in which event such period shall commence on the first day of the calendar month
following the month in which the Rental Commencement Date occurs. Promptly after
the Rental Commencement Date Landlord shall send to Tenant a Supplemental Notice
in the form of Exhibit "C" attached hereto and by this reference made a
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part hereof, specifying the Rental Commencement Date, the date of expiration of
the Lease Term in accordance with Article 1(i) above and certain other matters
as therein set forth.
4. Possession. The obligations of Landlord and Tenant with respect to
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the Building and the initial leasehold improvements to the Demised Premises are
set forth in Exhibit "D" attached hereto and by this reference made a part
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hereof. Within thirty (30) days after the Rental Commencement Date, Tenant shall
have the right to prepare and provide to Landlord a list of incomplete or
defective Punch List Items, all of which shall be promptly repaired and/or
completed by Landlord at its sole cost and expense, and, for a period of one (1)
year following the date Tenant takes possession of any portion of the Demised
Premises, Tenant shall have the right to notify Landlord of its discovery of
latent defects in the Demised Premises all of which shall be promptly repaired
and/or completed by Landlord at its sole cost and expense. Except for such Punch
List Items so specified by Tenant within said thirty (30) day period, and except
for such latent defects specified by Tenant within such one (1) year period, the
taking of possession by Tenant shall be deemed conclusively to establish that
Landlord's construction obligations with respect to the Demised Premises have
been completed in accordance with the plans and specifications approved by
Landlord and Tenant and that the Demised Premises, to the extent of Landlord's
construction obligations with respect thereto, are in good and satisfactory
condition.
5. Rental Payments.
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(a) Commencing on the Rental Commencement Date, and continuing
thereafter throughout the Lease Term, Tenant hereby agrees to pay all Rent
due and payable under this Lease. As used in this Lease, the term "Rent"
shall mean the Base Rental, Tenant's Forecast Additional Rental, Tenant's
Additional Rental, and any other amounts that Tenant assumes or agrees to
pay under the provisions of this Lease that are owed to Landlord, including
without limitation any and all other sums that may become due by reason of
any default of Tenant or failure on Tenant's part to comply with the
agreements, terms, covenants and conditions of this Lease to be performed
by Tenant. Base Rental together with Tenant's Forecast Additional Rental
shall be due and payable in twelve (12) equal installments on the first day
of each calendar month, commencing on the Rental Commencement Date and
continuing thereafter throughout the Lease Term and any extensions or
renewals thereof, and Tenant hereby agrees to pay such Rent to Landlord at
Landlord's address as provided herein (or such other address as may be
designated by Landlord from time to time) monthly in advance. Tenant shall
pay all Rent and other sums of money as shall become due from and payable
by Tenant to Landlord under this Lease at the times and in the manner
provided in this Lease, without demand, set-off or counterclaim except as
expressly otherwise permitted by the terms of this Lease.
(b) If the Rental Commencement Date is other than the first day of a
calendar month or if this Lease terminates on other than the last day of a
calendar month, then the installments of Base Rental and Tenant's Forecast
Additional Rental for such month or months shall be prorated on a daily
basis and the installment or installments so prorated shall be paid in
advance. Also, if the Rental Commencement Date occurs on other than the
first day of a calendar year, or if this Lease expires or is terminated on
other than the last day of a calendar year, Tenant's Additional Rental
shall be prorated for
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such commencement or termination year, as the case may be, by multiplying
such Tenant's Additional Rental by a fraction, the numerator of which shall
be the number of days of the Lease Term (from and after the Rental
Commencement Date) during the commencement or expiration or termination
year, as the case may be, and the denominator of which shall be 365, and
the calculation described in Article 7 hereof shall be made as soon as
possible after the expiration or termination of this Lease, Landlord and
Tenant hereby agreeing that the provisions relating to said calculation
shall survive the expiration or termination of this Lease.
6. Base Rental. From and after the Rental Commencement Date Tenant shall
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pay to Landlord a base annual rental (herein called "Base Rental") for each
Lease Year equal to the sum of (a) the Base Rental Rate set forth for such Lease
Year in Article 1(j) above multiplied by the Rentable Floor Area of the Demised
Premises set forth in Article 1(g) above, plus (b) the monthly payment, if any,
calculated pursuant to Special Stipulation 9 with respect to the Additional
Allowance. As used in this Lease, the term "Lease Year" shall mean the twelve
month period commencing on the Rental Commencement Date, and each successive
twelve month period thereafter during the Lease Term, except that if the Rental
Commencement Date is not on the first day of a calendar month, the first Lease
Year shall extend through the end of the twelfth month after the Rental
Commencement Date.
7. Additional Rental.
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(a) For purposes of this Lease, "Tenant's Forecast Additional Rental"
shall mean Landlord's reasonable estimate of Tenant's Additional Rental for
the coming calendar year or portion thereof. If at any time it reasonably
appears to Landlord that Tenant's Additional Rental for the current
calendar year will vary from Landlord's estimate by more than ten percent
(10%), Landlord shall have the right to revise, by notice to Tenant, its
estimate for such year, and subsequent payments by Tenant for such year
shall be based upon such revised estimate of Tenant's Additional Rental.
Failure to make a revision contemplated by the immediately preceding
sentence shall not prejudice Landlord's right to collect the full amount of
Tenant's Additional Rental. Prior to the Rental Commencement Date and
thereafter on or before November 1 of each calendar year during the Lease
Term, including any extensions thereof, Landlord shall present to Tenant a
statement of Tenant's Forecast Additional Rental for such calendar year;
provided, however, that if such statement is not given on or before
November 1 of any calendar year as aforesaid, Tenant shall continue to pay
during the next ensuing calendar year on the basis of the amount of
Tenant's Forecast Additional Rental payable during the calendar year just
ended until the month after such statement is delivered to Tenant. For
purposes of determining Tenant's Forecast Additional Rental the calendar
year within which the Rental Commencement Date occurs, the estimated
Operating Expenses for such calendar year shall be deemed to be $5.00 per
square foot multiplied by the number of square feet of Rentable Floor Area
of the Building.
(b) For purposes of this Lease, "Tenant's Additional Rental" shall
mean for each calendar year (or portion thereof) Tenant's Share of the
Operating Expenses (as defined below) for such calendar year (or portion
thereof). The "Tenant's Share" shall mean the fraction (which may be
expressed as a percentage) determined by dividing the number of square feet
of Rentable Floor Area of the Demised Premises by the number of square feet
of Rentable Floor Area of the Building. The Tenant's Share shall be a
adjusted to reflect any change in the Rentable Floor Area of the Demised
Premises or Rentable Floor Area of the Building. In the event the Building
is not fully occupied during any calendar year (or portion thereof), the
Operating Expenses which are variable in nature shall be adjusted for the
purposes of determining Tenant's Additional Rental to an amount that would
have been incurred by Landlord for such calendar year (or portion thereof)
if the Building had been fully occupied during such calendar year (or
portion thereof). Landlord agrees that only Operating Expenses which would
normally vary depending on the amount of space actually occupied in the
Building, such as costs of utilities, supplies and janitorial services,
shall be adjusted in this manner and that fixed expenses which are
unrelated to occupancy levels shall not be so adjusted.
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(c) Within ninety (90) days after the end of the calendar year in
which the Rental Commencement Date occurs and of each calendar year
thereafter during the Lease Term, or as soon thereafter as practicable,
Landlord shall provide Tenant a statement showing the Operating Expenses
for said calendar year and a statement prepared by Landlord showing any
adjustment to the Operating Expenses to reflect full occupancy of the
Building during such calendar year, and comparing Tenant's Forecast
Additional Rental with Tenant's Additional Rental. In the event Tenant's
Forecast Additional Rental exceeds Tenant's Additional Rental for said
calendar year, Landlord shall credit such amount against Rent next due
hereunder or, if the Lease Term has expired or is about to expire, refund
such excess to Tenant if Tenant is not in default under this Lease (in the
instance of a default such excess shall be held as additional security for
Tenant's performance, may be applied by Landlord to cure any such default,
and shall not be refunded until any such default is cured). In the event
that the Tenant's Additional Rental exceeds Tenant's Forecast Additional
Rental for said calendar year, Tenant shall pay Landlord, within thirty
(30) days of receipt of the statement, an amount equal to such difference.
The provisions of this Lease concerning the payment of Tenant's Additional
Rental shall survive the expiration or earlier termination of this Lease.
(d) Landlord's books and records pertaining to the calculation of
Operating Expenses for any calendar year within the Lease Term may be
audited by Tenant or its representatives at Tenant's expense, at any time
within twenty four (24) months after the end of each such calendar year;
provided that Tenant shall give Landlord not less than thirty (30) days'
prior written notice of any such audit. Prior to the commencement of such
audit, Tenant shall cause its authorized representative to agree in writing
for the benefit of Landlord that such representative will keep the results
of the audit confidential and that such representative will not disclose or
divulge the results of such audit except to Tenant and Landlord and except
in connection with any dispute between Landlord and Tenant relating to
Operating Expenses. Such audit shall be conducted during reasonable
business hours at Landlord's office where Landlord's books and records are
maintained. Tenant shall cause a written audit report to be prepared by its
authorized representative following any such audit and shall provide
Landlord with a copy of such report promptly after receipt thereof by
Tenant. If Landlord's calculation of Tenant's Additional Rental for the
audited calendar year was incorrect, then Tenant shall be entitled to a
prompt refund of any overpayment or Tenant shall promptly pay to Landlord
the amount of any underpayment, as the case may be. Should such an audit
indicate that the Operating Expenses (as adjusted as required under this
Lease) have been overstated by more than five percent (5%), then Landlord
shall be obligated to pay to Tenant the reasonable and substantiated cost
of such audit.
8. Operating Expenses.
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(a) For the purposes of this Lease, "Operating Expenses" shall mean
all expenses, costs and disbursements (but not specific costs billed to
specific tenants of the Building) of every kind and nature, computed on the
accrual basis, relating to or incurred or paid in connection with the
ownership, management, operation, repair and maintenance of the Project,
including but not limited to, the following:
(1) wages, salaries and other costs of all on-site and off-site
employees engaged in the operation, management, maintenance or access
control of the Project, including taxes, insurance and benefits relating to
such employees, allocated based upon the time such employees are engaged
directly in providing such services;
(2) the cost of all supplies, tools, equipment and materials
used in the operation, management, maintenance and access control of the
Project;
(3) the cost of all utilities for the Project, including but not
limited to the cost of
-5-
electricity, gas, water, sewer services and power for heating, lighting,
air conditioning and ventilating;
(4) the cost of all maintenance and service agreements for the
Project and the equipment therein, including but not limited to security
service, window cleaning, elevator maintenance, HVAC maintenance,
janitorial service, waste recycling service, landscaping maintenance and
customary landscaping replacement;
(5) the cost of repairs and general maintenance of the Project;
(6) amortization of the cost of acquisition and/or installation
of capital investment items (including security equipment and energy
management equipment), amortized over their respective useful lives, which
are installed for the purpose of reducing operating expenses, promoting
safety, complying with governmental requirements, or maintaining the first-
class nature of the Project;
(7) the cost of casualty, rental loss, liability and other
insurance applicable to the Project and Landlord's personal property used
in connection therewith;
(8) the cost of trash and garbage removal, vermin extermination,
and snow, ice and debris removal;
(9) the cost of legal and accounting services incurred by
Landlord in connection with the management, maintenance, operation and
repair of the Project, excluding the owner's or Landlord's general
accounting and fund accounting, such as partnership statements and tax
returns, and excluding services described in Article 8(b)(14) below;
(10) all taxes, assessments and governmental charges, whether or
not directly paid by Landlord, whether federal, state, county or municipal
and whether they be by taxing districts or authorities presently taxing the
Project or by others subsequently created or otherwise, and any other taxes
and assessments attributable to the Project or its operation (and the costs
of contesting any of the same), including without limitation assessments
under any declaration or private restrictive covenants applicable to the
Project or shared costs under any easement agreement with respect to the
operation, maintenance, repair and replacement of the storm water
facilities in Waterford, and business license taxes and fees, excluding,
however, taxes and assessments imposed on the personal property of the
tenants of the Project, federal and state taxes on income, death taxes,
franchise taxes, and any taxes (other than business license taxes and fees)
imposed or measured on or by the income of Landlord from the operation of
the Project; and it is agreed that Tenant will be responsible for ad
valorem taxes on its personal property; and
(11) a management fee in the amount of three and one half percent
(3.5%) of the gross rental income from the Project.
(b) For purposes of this Lease, and notwithstanding anything in any
other provision of this Lease to the contrary, "Operating Expenses" shall
not include the following:
(1) the cost of any special build-out work or service performed
for any tenant (including Tenant) at such tenant's cost;
(2) the cost of installing, operating and maintaining any
specialty service, such as a restaurant, cafeteria, retail store, sundry
shop, newsstand, or concession;
(3) the cost of correcting defects in construction;
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(4) compensation paid to officers and executives of Landlord and
employees above the grade of building superintendent;
(5) the cost of any items for which Landlord is reimbursed by
insurance (or which would have been reimbursed had Landlord maintained the
insurance required by this Lease to be maintained by Landlord),
condemnation or otherwise, except for costs reimbursed pursuant to
provisions similar to Articles 7 and 8 hereof;
(6) costs of alterations or additions made for the purpose of
complying with any laws, rules or ordinances in effect prior to the date of
this Lease;
(7) costs of all services rendered to other tenants not rendered
to the Tenant;
(8) insurance premiums to the extent increased as a result of
the activities of other tenants;
(9) the cost of any additions, changes, replacements and other
items which are made in order to prepare for a tenant's occupancy;
(10) the cost of repairs incurred by reason of fire or other
casualty;
(11) insurance premiums to the extent Landlord may be directly
reimbursed therefor, except for premiums reimbursed pursuant to provisions
similar to Articles 7 and 8 hereof;
(12) interest on debt or amortization payments on any mortgage or
deed of trust and rental under any ground lease or other underlying lease;
(13) any real estate brokerage commissions;
(14) any advertising expenses incurred in connection with the
marketing of any rentable space;
(15) rental payments for base building equipment such as HVAC
equipment and elevators;
(16) any expenses for repairs or maintenance which are covered by
warranties and service contracts, to the extent such maintenance and
repairs are made at no cost to Landlord (Landlord agrees to use good faith
efforts to enforce the no cost maintenance and repair provisions of such
construction warranties and service contracts);
(17) legal expenses arising out of the construction of the
improvements on the Land or the enforcement of the provisions of any lease
affecting the Land or Building, including without limitation this Lease;
(18) costs or amounts paid to parties affiliated with Landlord or
Landlord's managing agent to the extent such costs or amounts exceed the
fair market value of the services or materials provided;
(19) except as permitted under Article 8(a)(6), the costs of any
repairs, alterations, additions, changes, replacements, or renovations
which under generally accepted accounting practices are properly classified
as capital expenses;
-7-
(20) the cost (including without limitation overtime) of Landlord
performing work that is expressly provided in this Lease to be borne by
Landlord at Landlord's sole cost without inclusion as an Operating Expense;
(21) any inheritance, gift, transfer, franchise, excise, net
income or profit taxes or capital levies imposed upon Landlord; provided,
however, that, if at any time during the Lease Term the methods of taxation
prevailing at the commencement of the Lease Term are altered so that in
lieu of or as a substitute for the whole or any part of the taxes now
levied, assessed or imposed, there shall be levied, assessed or imposed an
income or other tax of whatever nature, then the same shall be included in
the computation of Operating Expenses hereunder.
(22) provided and on the condition that Tenant timely pays all
sums due Landlord under this Lease, interest and penalties arising by
Landlord's failure to timely pay Operating Expenses; and
(23) charitable contributions.
Landlord agrees that so long as Tenant occupies at least fifty percent of the
Rentable Floor Area of the Building, and provided and on the condition that no
event of default has occurred under this Lease which has not been waived by
Landlord, Landlord will provide an on site combination day ▇▇▇▇▇▇ and
maintenance person for not less than six hours per day, Monday through Friday
(except Holidays, as defined on Exhibit "E" hereto). The costs associated with
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such day ▇▇▇▇▇▇ and maintenance person shall be included within Operating
Expenses. Upon the written request of Tenant with respect to a specific service
contract, Landlord will competitively bid such service contract upon the
expiration of the existing contract. Landlord will review on an annual basis the
assessed valuation of the Land and Building, and where Landlord deems
appropriate, Landlord will appeal the assessed valuation of the Land and
Building.
9. Tenant Taxes; Rent Taxes. Tenant shall pay promptly when due all
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taxes directly or indirectly imposed or assessed upon Tenant's gross sales,
business operations, machinery, equipment, trade fixtures and other personal
property or assets, whether such taxes are assessed against Tenant, Landlord or
the Building. In the event that such taxes are imposed or assessed against
Landlord or the Building, Landlord shall furnish Tenant with all applicable tax
bills, public charges and other assessments or impositions and Tenant shall
forthwith pay the same either directly to the taxing authority or, at Landlord's
option, to Landlord. In addition, in the event there is imposed at any time a
tax upon and/or measured by the rental payable by Tenant under this Lease,
whether by way of a sales or use tax or otherwise, Tenant shall be responsible
for the payment of such tax and shall pay the same on or prior to the due date
thereof; provided, however, that the foregoing shall not include any
inheritance, estate, succession, transfer, gift or income tax imposed on or
payable by Landlord.
10. Payments. All payments of Rent and other payments to be made to
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Landlord shall be made on a timely basis and shall be payable to Landlord or as
Landlord may otherwise designate. All such payments shall be mailed or delivered
to Landlord's Address designated in Article 1(b) above or at such other place as
Landlord may designate from time to time in writing. If mailed, all payments
shall be mailed in sufficient time and with adequate postage thereon to be
received in Landlord's account by no later than the due date for such payment.
Tenant agrees to pay to Landlord Fifty Dollars ($50.00) for each check presented
to Landlord in payment of any obligation of Tenant which is not paid by the bank
on which it is drawn, together with interest from and after the due date for
such payment at the rate of eighteen percent (18%) per annum on the amount due.
11. Late Charges. Any Rent or other amounts payable to Landlord under
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this Lease, if not paid by the fifth day of the month for which such Rent is
due, or by the due date specified on any invoices from Landlord for any other
amounts payable hereunder, shall incur a late charge of Fifty Dollars ($50.00)
for Landlord's administrative expense in processing such delinquent payment and
in addition thereto shall bear
-8-
interest at the rate of eighteen percent (18%) per annum from and after the due
date for such payment. In no event shall the rate of interest payable on any
late payment exceed the legal limits for such interest enforceable under
applicable law.
12. Use Rules. The Demised Premises shall be used for executive, general
---------
administrative, office space and other similar purposes and no other purposes
and in accordance with all applicable laws, ordinances, rules and regulations of
governmental authorities, all private restrictive covenants applicable to the
Project, all nationally recognized industry standards applicable to such uses
and the Rules and Regulations attached hereto and made a part hereof. Tenant
covenants and agrees to abide by the Rules and Regulations in all respects as
now set forth and attached hereto or as hereafter promulgated by Landlord.
Landlord shall have the right at all times during the Lease Term to publish and
promulgate and thereafter enforce such rules and regulations or changes in the
existing Rules and Regulations as it may reasonably deem necessary to protect
the tenantability, safety, operation, and welfare of the Demised Premises and
the Project. Landlord shall enforce the Rules and Regulations in a
nondiscriminatory manner.
13. Alterations. Except for any initial improvement of the Demised
-----------
Premises pursuant to Exhibit "D", which shall be governed by the provisions of
-----------
said Exhibit "D", and except for "Permitted Alterations" (as hereinafter
-----------
defined), Tenant shall not make, suffer or permit to be made any alterations,
additions or improvements to or of the Demised Premises or any part thereof, or
attach any fixtures or equipment thereto, (collectively, an "Alteration")
without first obtaining Landlord's written consent, which consent shall not be
unreasonably withheld. Except for Tenant's trade fixtures and personal property
which are readily removable, all such alterations, additions and improvements
shall become Landlord's property at the expiration or earlier termination of the
Lease Term and shall remain on the Demised Premises without compensation to
Tenant unless Landlord elects by notice to Tenant at the time of granting
consent (or, with respect to Permitted Alterations, unless Landlord elects by
notice to Tenant within thirty days after Tenant's request for such election by
Landlord for the applicable Permitted Alterations; provided, however, that if
such request is not made by Tenant within 30 days after completion of the
applicable Permitted Alteration, Landlord may elect by notice to Tenant at any
time thereafter) to have Tenant remove such alterations, additions and
improvements, in which event, notwithstanding any contrary provisions respecting
such alterations, additions and improvements contained in Article 30 hereof,
Tenant shall promptly restore, at its sole cost and expense, the Demised
Premises to its condition prior to the installation of such alterations,
additions and improvements, normal wear and tear excepted. The following
alterations are referred to as "Permitted Alterations": any Alteration or
related series of Alterations if such Alteration or related series of
Alterations:
(i) are nonstructural;
(ii) do not cause any violation of and do not require any change in
any certificate of occupancy applicable to the Building;
(iii) do not cause any change in the outside appearance of the
Building, do not weaken or impair the structure of the Building and do
not materially reduce the value of the Demised Premises or the
Building or the Property;
(iii) do not affect the proper functioning of the Building equipment;
(iv) do not cost in excess of $50,000.00.
Tenant shall give Landlord prior notice of any Permitted Alteration, and upon
completion of any Permitted Alteration (other than decorations), Tenant shall
deliver to Landlord three (3) copies of the "as-built" plans for such Permitted
Alteration.
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14. Repairs.
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(a) Landlord shall maintain in good order and repair, subject to
normal wear and tear and subject to casualty and condemnation, the Building
(including without limitation the roof, foundation, basement, structural
portions of interior and exterior structural walls, but excluding the
Demised Premises and other portions of the Building leased to other
tenants), the mechanical, electrical and plumbing systems within the
Building [exclusive of supplemental HVAC, mechanical, electrical or
plumbing installations made by Tenant (such as, but not limited to, Liebert
units and private restrooms), which shall be maintained by Tenant], the
Building parking facilities, the common areas and the landscaped areas.
Notwithstanding the foregoing obligation, the cost of any repairs or
maintenance to the foregoing necessitated by the intentional acts or
negligence of Tenant or its agents, contractors, employees, licensees,
subtenants or assigns, shall be borne solely by Tenant and shall be deemed
Rent hereunder and shall be reimbursed by Tenant to Landlord upon demand.
Except as expressly set forth above in this Article 14(a), Landlord shall
not be required to make any repairs or improvements to the Demised Premises
except for any initial improvements to the Demised Premises pursuant to the
provisions of Exhibit "D" and except structural repairs necessary for
-----------
safety and tenantability and except for the correction of punchlist items
and latent defects pursuant to the provisions of Article 4 hereof.
(b) Tenant covenants and agrees that it will take good care of the
Demised Premises and all alterations, additions and improvements thereto
and will keep and maintain the same in good condition and repair, except
for normal wear and tear, damage by fire or other casualty, and repairs
which are the responsibility of Landlord. Tenant shall promptly report, in
writing, to Landlord any defective or dangerous condition known to Tenant.
Except for Tenant's rights as set forth in Article 18(e), to the fullest
extent permitted by law, Tenant hereby waives all rights to make repairs at
the expense of Landlord or in lieu thereof to vacate the Demised Premises
as may be provided by any law, statute or ordinance now or hereafter in
effect. Landlord has no obligation and has made no promise to alter,
remodel, improve, repair, decorate or paint the Demised Premises or any
part thereof, except as specifically and expressly herein set forth.
15. Landlord's Right of Entry. Landlord shall retain duplicate keys to
-------------------------
all doors of the Demised Premises and Landlord and its agents, employees and
independent contractors shall have the right to enter the Demised Premises at
reasonable hours to inspect and examine same, to make repairs, additions,
alterations, and improvements, to exhibit the Demised Premises to mortgagees,
prospective mortgagees, purchasers or tenants, and to inspect the Demised
Premises to ascertain that Tenant is complying with all of its covenants and
obligations hereunder; provided, however, that Landlord shall, except in case of
emergency, have the right to enter only with the prior knowledge of Tenant and
such entry shall be during Tenant's normal business hours (unless Tenant
otherwise consents to entry during other hours, which consent Tenant agrees not
to unreasonably withhold or delay). Landlord shall be allowed to take into and
through the Demised Premises any and all materials that may be required to make
such repairs, additions, alterations or improvements. During such time as such
work is being carried on in or about the Demised Premises, the Rent provided
herein shall not ▇▇▇▇▇, and Tenant waives any claim or cause of action against
Landlord for damages by reason of interruption of Tenant's business or loss of
profits therefrom because of the prosecution of any such work or any part
thereof; provided and on the condition that Landlord shall use all reasonable
and diligent efforts to minimize the disruption of Tenant's business and to
protect Tenant's property during such times.
16. Insurance.
---------
(a) Tenant shall either self insure or procure at its expense and
maintain throughout the Lease Term a policy or policies of all-risk
insurance insuring the full replacement cost of its furniture, equipment,
supplies, and other property owned, leased, held or possessed by it and
contained in the Demised Premises. Tenant shall also shall procure at its
expense and maintain throughout the Lease Term a policy or policies of
worker's compensation insurance as required by applicable law. Tenant shall
also procure at its expense and maintain throughout the Lease
-10-
Term a policy or policies of insurance, insuring Tenant, Landlord,
Landlord's managing agent and Landlord's mortgagee, if any, against any and
all liability for injury to or death of a person or persons and for damage
to property occasioned by or arising out of any construction work being
done by Tenant or Tenant's contractors on the Demised Premises, or arising
out of the condition, use, or occupancy of the Demised Premises, or in any
way occasioned by or arising out of the activities of Tenant, its agents,
contractors or employees in the Demised Premises, or other portions of the
Building or the Project, and of Tenant's guests and licensees while they
are in the Demised Premises, the limits of such policy or policies to be in
combined single limits for both damage to property and personal injury and
in amounts not less than Three Million Dollars ($3,000,000) for each
occurrence. Such insurance shall, in addition, extend to any liability of
Tenant arising out of the indemnities provided for in this Lease. All
insurance policies procured and maintained by Tenant pursuant to this
Article 16 shall name Landlord and any additional parties designated by
Landlord as additional insured, shall be carried with companies licensed to
do business in the Commonwealth of Virginia having a rating from Best's
Insurance Reports of not less than A-/X, and shall be non-cancelable and
not subject to material change except after at least twenty (20) days'
written notice to Landlord. Duly executed certificates of insurance with
respect to such policies shall be delivered to Landlord prior to the date
Tenant enters the Demised Premises for the installation of its
improvements, trade fixtures or furniture, and certificates evidencing
renewals of such policies shall be delivered to Landlord at least thirty
(30) days prior to the expiration of each respective policy term.
(b) Landlord shall procure at its expense (but with the expense to be
included in Operating Expenses as provided in Article 8[a] hereof) and
shall thereafter maintain throughout the Lease Term a policy or policies of
all-risk (including rent loss coverage) real and personal property
insurance with respect to the Building (including the leasehold
improvements to the Demised Premises), insuring against loss or damage by
fire and such other risks as are from time to time included in a standard
form of all-risk policy of insurance available in the Commonwealth of
Virginia. Said Building and improvements to the Demised Premises shall be
insured for the benefit of Landlord in an amount not less than the full
replacement costs thereof as determined from time to time by the insurance
company (and such insurance may provide for a reasonable deductible).
Landlord shall also procure at its expense (but with the expense to be
included in Operating Expenses as provided in Article 8[a] hereof) and
shall thereafter maintain throughout the Lease Term a policy or policies of
commercial general liability insurance insuring against the liability of
Landlord arising out of the maintenance, use and occupancy of the Project,
with limits of such policy or policies to be in combined single limits for
both damage to property and personal injury and in amounts not less than
Three Million Dollars ($3,000,000.00) for each occurrence. Such insurance
required herein shall be issued by an insurance company licensed to do
business in the Commonwealth of Virginia. Any insurance required to be
carried by Landlord hereunder may be carried under blanket policies
covering other properties of Landlord and/or its partners and/or their
respective related or affiliated corporations so long as such blanket
policies provide insurance at all times for the Project as required by this
Lease. Upon reasonable request from Tenant, Landlord will provide a
certificate of insurance evidencing the maintenance of the insurance
required herein.
17. Waiver of Subrogation. Landlord and Tenant shall each have included
---------------------
in all policies of fire, extended coverage, business interruption and loss of
rents insurance respectively obtained by them covering the Demised Premises, the
Building and contents therein, a waiver by the insurer of all right of
subrogation against the other in connection with any loss or damage thereby
insured against. Any additional premium for such waiver shall be paid by the
primary insured. To the full extent permitted by law, Landlord and Tenant each
waives all right of recovery against the other for, and agrees to release the
other from liability for, loss or damage to the extent such loss or damage is
covered by valid and collectible insurance in effect at the time of such loss or
damage or would be covered by the insurance required to be maintained under this
Lease by the
-11-
party seeking recovery.
18. Default.
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(a) The following events shall be deemed to be events of default by
Tenant under this Lease: (i) Tenant shall fail to pay any installment of
Rent or any other charge or assessment against Tenant pursuant to the terms
hereof within five (5) days after receipt by Tenant of notice in writing
from Landlord; provided, however, such notice and such grace period shall
be required to be provided by Landlord and shall be accorded Tenant if
necessary, only two times during any consecutive twelve month period of the
Lease Term, and in the event of default shall be deemed to have immediately
occurred upon the third failure by Tenant to make a timely payment as
aforesaid within any consecutive twelve (12) month period of the Lease
Term, it being intended by the parties hereto that such notice and such
grace period shall protect against infrequent unforeseen clerical errors
beyond the control of Tenant, and shall not protect against Tenant's lack
of diligence of planning in connection with its obligation to make timely
payment of rent and other amounts due hereunder; (ii) Tenant shall fail to
comply with any term, provision, covenant or warranty made under this Lease
by Tenant, other than the payment of the Rent or any other charge or
assessment payable by Tenant, and shall not cure such failure within thirty
(30) days after notice thereof to Tenant provided, however, in the case of
a failure or breach which is capable of being remedied by Tenant but which
cannot with due diligence be remedied by Tenant within a period of thirty
(30) days, if Tenant proceeds as promptly as may be reasonably possible
after the service of such notice and with all due diligence to remedy the
failure or breach and thereafter to prosecute the remedying of such failure
or breach with all due diligence, Tenant shall have an additional period of
time, not to exceed ninety (90) days (for a total of one hundred twenty
(120) days from the service of such notice), in which to effect such cure;
(iii) Tenant or any guarantor of this Lease shall make a general assignment
for the benefit of creditors, or shall admit in writing its inability to
pay its debts as they become due, or shall file a petition in bankruptcy,
or shall be adjudicated as bankrupt or insolvent, or shall file a petition
in any proceeding seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present
or future statute, law or regulation, or shall file an answer admitting or
fail timely to contest the material allegations of a petition filed against
it in any such proceeding; (iv) a proceeding is commenced against Tenant or
any guarantor of this Lease seeking any reorganization, arrangement,
composition, readjustment, liquidation, dissolution or similar relief under
any present or future statute, law or regulation, and such proceeding shall
not have been dismissed or discharged within sixty (60) days after the
commencement thereof; (v) a receiver or trustee shall be appointed for the
Demised Premises or for all or substantially all of the assets of Tenant or
of any guarantor of this Lease; (vi) Tenant shall fail to take possession
of the Demised Premises as provided in this Lease; (vii) Tenant shall do or
permit to be done anything which creates a lien upon the Demised Premises
or the Project and such lien is not removed or discharged by bond or
otherwise (or by the posting of such security with Landlord as Landlord
shall determine, in Landlord's sole discretion) within thirty (30) days
after the filing thereof; (viii) Tenant shall fail to return a properly
executed instrument to Landlord in accordance with the provisions of
Article 26 hereof within the time period provided for such return following
Landlord's request for same as provided in Article 26; (ix) Tenant shall
fail to return a properly executed estoppel certificate to Landlord in
accordance with the provisions of Article 27 hereof within the time period
provided for such return following Landlord's request for same as provided
in Article 27; or (x) Tenant shall fail, for any reason whatsoever, to
maintain the Original Letter of Credit or any Replacement Letter of Credit
(as those terms are defined in Article 39 hereof) in full force and effect
at all times during the Security Period (as that term is defined in Article
39 hereof).
(b) Upon the occurrence of any of the aforesaid events of default
[Landlord and Tenant acknowledging that certain events of default as
defined in Article 18(a) cannot occur without the written notice from
Landlord expressly provided for with respect to such events of default in
Article 18(a)], Landlord shall have the option to pursue any one or more of
the following remedies
-12-
without any notice or demand whatsoever: (i) terminate this Lease, in which
event Tenant shall immediately surrender the Demised Premises to Landlord
and if Tenant fails to do so, Landlord may without prejudice to any other
remedy which it may have for possession or arrearages in Rent, enter upon
and take possession of the Demised Premises and expel or remove Tenant and
any other person who may be occupying said Demised Premises or any part
thereof without being liable for prosecution or any claim of damages
therefor; Tenant hereby agreeing to pay to Landlord on demand the amount of
all loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the Demised Premises on
satisfactory terms or otherwise; (ii) terminate Tenant's right of
possession (but not this Lease) and enter upon and take possession of the
Demised Premises and expel or remove Tenant and any other person who may be
occupying said Demised Premises or any part thereof, by entry,
dispossessory suit or otherwise, without thereby releasing Tenant from any
liability hereunder, without terminating this Lease, and without being
liable for prosecution or any claim of damages therefor and, if Landlord so
elects, make such alterations, redecorations and repairs as, in Landlord's
judgment, may be necessary to relet the Demised Premises, and Landlord may,
but shall be under no obligation to do so, relet the Demised Premises or
any portion thereof in Landlord's or Tenant's name, but for the account of
Tenant, for such term or terms (which may be for a term extending beyond
the Lease Term) and at such rental or rentals and upon such other terms as
Landlord may reasonably deem advisable, with or without advertisement, and
by private negotiations, and receive the rent therefor, Tenant hereby
agreeing to pay to Landlord the deficiency, if any, between all Rent
reserved hereunder and the total rental applicable to the Lease Term hereof
obtained by Landlord re-letting, and Tenant shall be liable for Landlord's
expenses in redecorating and restoring the Demised Premises and all costs
incident to such re-letting, including broker's commissions and lease
assumptions, and in no event shall Tenant be entitled to any rentals
received by Landlord in excess of the amounts due by Tenant hereunder; or
(iii) enter upon the Demised Premises without being liable for prosecution
or any claim of damages therefor, and do whatever Tenant is obligated to do
under the terms of this Lease; and Tenant agrees to reimburse Landlord on
demand for any expenses including, without limitation, reasonable
attorneys' fees which Landlord may incur in thus effecting compliance with
Tenant's obligations under this Lease and Tenant further agrees that
Landlord shall not be liable for any damages resulting to Tenant from such
action, , except for damage to property or injury to persons to the extent
caused by the gross negligence or willful misconduct of Landlord. If
Landlord shall reenter the Demised Premises and take possession from Tenant
without terminating this Lease, provided that Tenant has vacated the
Demised Premises and is not contesting Landlord's right to the possession
of the Demised Premises, Landlord will use reasonable efforts to relet the
Demised Premises and thereby mitigate the damages which Landlord shall
incur. Tenant hereby agrees that Landlord's agreement to use reasonable
efforts to relet the Demised Premises in order to mitigate Landlord's
damages shall not be deemed to impose upon Landlord any obligation to relet
the Demised Premises (i) for any purpose other than use permitted under
this Lease or (ii) to any tenant who is not financially capable of
performing the duties and obligations imposed upon Tenant under this Lease
with respect to the portion of the Demised Premises leased by such tenant,
or (iii) to prefer the Demised Premises over any other space available in
the Building. If this Lease is terminated by Landlord as a result of the
occurrence of an event of default, Landlord may declare to be due and
payable immediately, the present value (calculated with a discount factor
of eight percent [8%] per annum) of the difference between (x) the entire
amount of Rent and other charges and assessments which in Landlord's
reasonable determination would become due and payable during the remainder
of the Lease Term determined as though this Lease had not been terminated
(including, but not limited to, increases in Rent pursuant to this Lease),
and (y) the then fair market rental value of the Demised Premises for the
remainder of the Lease Term. Upon the acceleration of such amounts, Tenant
agrees to pay the same at once, together with all Rent and other charges
and assessments theretofore due, at Landlord's address as provided herein,
it being agreed that such payment shall not constitute a penalty or
forfeiture but shall constitute liquidated damages for Tenant's failure to
comply with the terms and provisions of this Lease (Landlord and Tenant
agreeing that Landlord's actual damages in such event are impossible to
ascertain and that the amount set forth above is a reasonable estimate
thereof).
-13-
(c) Pursuit of any of the foregoing remedies shall not preclude
pursuit of any other remedy herein provided or any other remedy provided by
law or at equity, nor shall pursuit of any remedy herein provided
constitute an election of remedies thereby excluding the later election of
an alternate remedy, or a forfeiture or waiver of any Rent or other charges
and assessments payable by Tenant and due to Landlord hereunder or of any
damages accruing to Landlord by reason of violation of any of the terms,
covenants, warranties and provisions herein contained. No reentry or
taking possession of the Demised Premises by Landlord or any other action
taken by or on behalf of Landlord shall be construed to be an acceptance of
a surrender of this Lease or an election by Landlord to terminate this
Lease unless written notice of such intention is given to Tenant.
Forbearance by Landlord to enforce one or more of the remedies herein
provided upon an event of default shall not be deemed or construed to
constitute a waiver of such default. In determining the amount of loss or
damage which Landlord may suffer by reason of termination of this Lease or
the deficiency arising by reason of any reletting of the Demised Premises
by Landlord as above provided, allowance shall be made for the expense of
repossession. Tenant agrees to pay to Landlord all costs and expenses
incurred by Landlord in the enforcement of this Lease, including, without
limitation, the reasonable fees of Landlord's third party attorneys as
provided in Article 24 hereof.
(d) The abandonment or vacation of the Demised Premises shall not be
an event of default by Tenant under this Lease, but in the event Tenant
shall abandon or vacate the Demised Premises for more than ninety (90)
days, unless due to a casualty, condemnation or remodeling (which
remodeling is being diligently prosecuted), Landlord may, at any time while
such abandonment or vacation of the Demised Premises is continuing, notify
Tenant of Landlord's election to terminate this Lease, in which event this
Lease shall terminate on the date so selected by Landlord in Landlord's
written election to terminate this Lease, and on the date so set forth in
Landlord's written election, this Lease shall terminate and come to an end
as though the date selected by Landlord were the last day of the natural
expiration of the Lease Term; provided, however, that no such termination
shall affect or limit any obligations or liabilities of Tenant arising or
accruing under this Lease prior to the effective date of any such
termination; and provided further that Tenant may rescind Landlord's
election by (i) notifying Landlord in writing, within ten (10) days after
receipt of Landlord's written election to terminate this Lease, that Tenant
will reoccupy the Demised Premises for business purposes and (ii) in fact,
so reoccupying the Demised Premises for business purposes within sixty (60)
days thereafter.
(e) If Landlord shall default in the performance of any of its
obligations under this Lease in a way which materially affects the use or
tenantability of the Demised Premises (including but not limited to a
failure to cure Punch List Items or latent defects within the applicable
time periods set forth in Article 4 of this Lease), and such default shall
continue for thirty (30) days after notice from Tenant specifying
Landlord's default (except that if such default cannot be cured within said
thirty [30] day period, this period shall be extended for a reasonable
additional time, provided that Landlord commences to cure such default
within the thirty [30] day and proceeds diligently thereafter to effect
such cure and completes such cure as promptly as reasonably possible under
all the circumstances), Tenant may, without prejudice to any of its other
rights under this Lease, correct or cure such default by Landlord and
invoice Landlord the cost and expenses incurred by Tenant therefor, and
Landlord shall reimburse Tenant within thirty (30) days following receipt
of such invoice. If Landlord shall fail to reimburse Tenant for such cost
and expenses within such thirty (30) day period, Tenant shall have the
right to deduct such cost and expenses from Base Rental thereafter due
hereunder, provided, however, that in the event Landlord notifies Tenant
that it disputes the existence of any such default, during the pendency of
such dispute, Tenant may pay the amount in dispute to an independent escrow
agent of its choice to be held by the agent pending resolution of the
dispute. Tenant shall not be deemed to be in default hereunder by reason
of such payment until the dispute is resolved in favor of Landlord and
Tenant fails to cause the agent to pay the amount determined to be payable
to Landlord within ten (10) days after Tenant is notified of the
determination. Tenant and Landlord shall negotiate
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in good faith to resolve the dispute by agreement.
19. Waiver of Breach. No waiver of any breach of the covenants,
----------------
warranties, agreements, provisions, or conditions contained in this Lease shall
be construed as a waiver of said covenant, warranty, provision, agreement or
condition or of any subsequent breach thereof, and if any breach shall occur and
afterwards be compromised, settled or adjusted, this Lease shall continue in
full force and effect as if no breach had occurred.
20. Assignment and Subletting. Tenant shall not, without the prior
-------------------------
written consent of Landlord, assign this Lease or any interest herein or in the
Demised Premises, or mortgage, pledge, encumber, hypothecate or otherwise
transfer or sublet the Demised Premises or any part thereof or permit the use of
the Demised Premises by any party other than Tenant. Consent to one or more
such transfers or subleases shall not destroy or waive this provision, and all
subsequent transfers and subleases shall likewise be made only upon obtaining
the prior written consent of Landlord. Without limiting the foregoing
prohibition, in no event shall Tenant assign this Lease or any interest herein,
whether directly, indirectly or by operating of law, or sublet the Demised
Premises or any part thereof or permit the use of the Demised Premises or any
part thereof by any party (i) if the proposed assignee or subtenant is a party
who would (or whose use would) detract from the character of the Building as a
first-class building, such as, without limitation, a dental, medical or
chiropractic office or a governmental office, (ii) if the proposed use of the
Demised Premises shall involve an occupancy rate of more than one (1) person per
160 square feet of Rentable Floor Area within the Demised Premises, (iii) if the
proposed assignment or subletting shall be to a governmental subdivision or
agency or any person or entity who enjoys diplomatic or sovereign immunity, (iv)
if Tenant is then occupying 50% or less of the Building, if such proposed
assignee or subtenant is an existing tenant of the Building, or (v) if such
proposed assignment, subletting or use would contravene any restrictive covenant
(including any exclusive use) granted to any other tenant of the Building.
Notwithstanding the foregoing prohibition, Tenant shall have the right, without
the consent of Landlord but with prior notice to Landlord, to assign this Lease
or sublet the entire Premises to an entity which is more than fifty percent
(50%) owned, directly or indirectly, by Tenant, or to an entity which directly
or indirectly owns more than fifty percent (50%) of Tenant, or to an entity
which is more than fifty percent (50%) owned, directly or indirectly, by an
entity which itself owns, directly or indirectly, more than fifty percent (50%)
of Tenant. No assignment of this Lease or subletting of the Demised Premises
shall relieve Tenant of any liability arising under this Lease; provided,
however, that if (1) this Lease is assigned, and (2) the assignee Tenant (a) has
a net worth equal to or greater than $12,000,000.00 determined in accordance
with generally accepted accounting principles determined as of the date of the
assignment and for the two (2) fiscal years of assignee immediately prior
thereto and evidence thereof reasonably satisfactory to Landlord is delivered to
Landlord within thirty (30) days following such assignment, (b) provides the
Letter of Credit required in accordance with Article 39 of this Lease, (c)
assumes in writing, in favor of Landlord, all obligations of Tenant first
arising under this Lease subsequent to such assignment, and (d) notifies
Landlord of such assignment within thirty (30) days after the effective date
thereof, including with such notice the written assumption identified in (c)
above, then, in such event, the assignor Tenant shall have no liability for the
obligations of Tenant first arising hereunder subsequent to such assignment.
Sublessees or transferees of the Demised Premises for the balance of the Lease
Term shall become directly liable to Landlord for all obligations of Tenant
hereunder, without relieving Tenant (or any guarantor of Tenant's obligations
hereunder) of any liability therefor, and Tenant shall remain obligated for all
liability to Landlord arising under this Lease during the entire remaining Lease
Term including any extensions thereof, whether or not authorized herein. If
Tenant is a partnership, a withdrawal or change, whether voluntary, involuntary
or by operation of law, of partners owning a controlling interest in the Tenant
shall be deemed a voluntary assignment of this Lease and subject to the
foregoing provisions. If Tenant is a corporation, any dissolution, merger,
consolidation or other reorganization of Tenant, or the sale or transfer of a
controlling interest in the capital stock of Tenant, shall be deemed a voluntary
assignment of this Lease and subject to the foregoing provisions. Landlord
hereby consents to (i) the assignment of this Lease to a joint venture (the
"Joint Venture") between Tenant and ALSTOM, and (ii) the subletting of portions
of the Demised Premises to business entities which control, are controlled by,
or are under common control with Tenant (or if and when the Lease is assigned to
the Joint
-15-
Venture, to business entitles which control, are controlled by, or are under
common control with ABB Power Generation Inc., ALSTOM or the Joint Venture),
provided and on the condition that at all times thereafter such business
entities control, are controlled by, or are under common control with Tenant,
ABB Power Generation Inc., ALSTOM or the Joint Venture, as the case may be.
Landlord may, as a prior condition to considering any request for consent to an
assignment or sublease (when Landlord's consent is required), require Tenant to
obtain and submit current financial statements of any proposed subtenant or
assignee. In the event Landlord consents to an assignment or sublease, Tenant
shall pay to Landlord a fee to cover Landlord's reasonable accounting costs plus
any legal fees incurred by Landlord as a result of the assignment or sublease.
Any consideration, in excess of the Rent and other charges and sums due and
payable by Tenant under this Lease, paid to Tenant by any assignee of this Lease
for its assignment, or by any sublessee under or in connection with its sublease
(when Landlord's consent is required), or otherwise paid to Tenant by another
party for use and occupancy of the Demised Premises or any portion thereof,
shall be retained by Tenant and Landlord shall have no right or claim thereto as
against Tenant. No assignment of this Lease consented to by Landlord shall be
effective unless and until Landlord shall receive an original assignment and
assumption agreement, in form and substance reasonably satisfactory to Landlord,
signed by Tenant and Tenant's proposed assignee, whereby the assignee assumes
due performance of this Lease to be done and performed for the balance of the
then remaining Lease Term of this Lease. No subletting of the Demised Premises,
or any part thereof, shall be effective unless and until there shall have been
delivered to Landlord an agreement, in form and substance reasonably
satisfactory to Landlord, signed by Tenant and the proposed sublessee, whereby
the sublessee acknowledges the right of Landlord to continue or terminate any
sublease, in Landlord's sole discretion, upon termination of this Lease, and
such sublessee agrees to recognize and attorn to Landlord in the event that
Landlord elects under such circumstances to continue such sublease.
21. Destruction.
-----------
(a) If the Demised Premises are damaged by fire or other casualty,
the same shall be repaired or rebuilt as speedily as practical under the
circumstances at the expense of the Landlord, unless this Lease is
terminated as provided in this Article 21, and during the period required
for restoration, a just and proportionate part of Base Rental, Operating
Expenses and Additional Rent shall be abated until the Demised Premises are
repaired or rebuilt.
(b) If the Demised Premises are damaged or destroyed by fire or other
casualty, Landlord shall give Tenant written notice (the "Repair Notice")
within thirty (30) days after the date of the casualty specifying
Landlord's reasonable estimate of the time period to complete the repairs
of such damage or destruction. If the Demised Premises are (i) damaged to
such an extent that repairs cannot, in Landlord's good faith judgment, be
completed within one hundred fifty (150) days after the date of the
casualty or (ii) damaged or destroyed as a result of a risk which is not
insured under standard fire insurance policies with extended coverage
endorsement, or (iii) damaged or destroyed during the last six (6) months
of the Lease Term, or if the Building is damaged in whole or in part
(whether or not the Demised Premises are damaged), to such an extent that
the Building cannot, in Landlord's judgment, be operated economically as an
integral unit, then and in any such event Landlord may at its option
terminate this Lease by notice in writing to the Tenant within sixty (60)
days after the date of such occurrence. If the Demised Premises are
damaged to such an extent that repairs cannot, in Landlord's good faith
judgment, be completed within one hundred fifty (150) days after the date
of the casualty or if the Demised Premises are substantially damaged during
the last six (6) months of the Lease Term, then in either such event Tenant
may elect to terminate this Lease by notice in writing to Landlord within
ten (10) days after the date of the Repair Notice. Unless Landlord or
Tenant elects to terminate this Lease as hereinabove provided, this Lease
will remain in full force and effect and Landlord shall repair such damage
at its expense to the extent required under this Article as expeditiously
as possible under the circumstances. If Landlord, subject to force
majeure and subject to delays caused by Tenant, does not restore the
Premises as required in this Article 21(b) within the time period herein
set forth, Tenant may terminate this Lease at any time thereafter [and Rent
shall be accounted for as of the date
-16-
of termination (as of the date of the fire or other casualty with respect
to the damaged portion)], prior to the date such restoration is
substantially completed, provided (i) Tenant gives Landlord not less than
thirty (30) days prior written notice, and (ii) Landlord does not complete
the restoration during such thirty (30) day period.
(c) If Landlord should elect or be obligated pursuant to subparagraph
(a) above to repair or rebuild because of any damage or destruction,
Landlord's obligation shall be limited to the original Building and the
leasehold improvements in the Demised Premises and shall not extend to any
furniture, equipment, supplies or other personal property owned or leased
by Tenant, its employees, contractors, invitees or licensees. If the cost
of performing such repairs exceeds the actual proceeds of insurance paid or
payable to Landlord (or which would have been payable to Landlord had
Landlord maintained the insurance required by this Lease to be maintained
by Landlord) on account of such casualty), or if Landlord's mortgagee or
the lessor under a ground or underlying lease shall require that any
insurance proceeds from a casualty loss be paid to it, Landlord may
terminate this Lease unless Tenant, within thirty (30) days after demand
therefor, deposits with Landlord a sum of money sufficient to pay the
difference between the cost of repair and the proceeds of the insurance
available to Landlord for such purpose. If Landlord should elect or be
obligated pursuant to subparagraph (a) above to repair or rebuild because
of any damage or destruction, Landlord shall make available to Tenant on an
"as-is" basis (and solely for the time period from the date of the casualty
to the date the repairs have been completed, whereupon the term with
respect to such temporary space shall be deemed to terminate) any vacant
space in the Building which is suitable and available for immediate
occupancy and is reasonably expected to remain so available until such time
as the repairs to the Demised Premises have been completed (and Landlord
shall have no obligation to perform or install tenant improvements or
otherwise finish such space), and Tenant shall pay Landlord the same Base
Rental and other charges with respect to such temporary space on a square
foot basis as Tenant would then be required under this Lease to pay with
respect to such temporary space were such space part of the Demised
Premises, and the terms and provisions of this Lease [excluding, however,
the construction obligations of Landlord and the obligations with respect
to the Construction Allowance, Additional Allowance, and reimbursement for
costs of Plans and Specifications] shall apply to such space as if such
space were part of the Demised Premises.
(d) In no event shall Landlord be liable for any loss or damage
sustained by Tenant by reason of casualties mentioned hereinabove or any
other accidental casualty.
22. Intentionally Omitted.
---------------------
23. Services by Landlord. Landlord shall provide the Building Standard
--------------------
Services described on Exhibit "E" attached hereto and by reference made a part
-----------
hereof.
24. Attorneys' Fees and Homestead. In the event Landlord or Tenant
-----------------------------
defaults in the performance of any of the terms, agreements or conditions
contained in this Lease and the non-defaulting party places the enforcement of
this Lease, or any part thereof, or the collection of any Rent due or to become
due hereunder, or recovery of the possession of the Demised Premises, in the
hands of an attorney, or files suit upon the same, and should such non-
defaulting party prevail in such suit, the defaulting party, to the extent
permitted by applicable law, agrees to pay the non-defaulting party all
reasonable attorney's fees actually incurred by the non-defaulting party.
Tenant waives all homestead rights and exemptions which it may have under any
law as against any obligation owing under this Lease, and assigns to Landlord
its homestead and exemptions to the extent necessary to secure payment and
performance of its covenants and agreements hereunder.
25. Time. Time is of the essence of this Lease and whenever a certain day
----
is stated for payment or performance of any obligation of Tenant or Landlord,
the same enters into and becomes a part of the consideration hereof.
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26. Subordination, Attornment and Non-Disturbance.
---------------------------------------------
(a) Existing Security Deeds or Underlying Leases. Landlord represents
--------------------------------------------
and warrants to Tenant that (i) as of the date of this Lease, Landlord owns
or has a valid contract to acquire fee simple title to the Land, and (ii)
as of the later of the date of this Lease or the date Landlord acquires fee
simple title to the Land, the Land is (or will be) free and clear of any
mortgages, deeds to secure debt, deeds of trust or other such financing
instruments (each a "Security Deed") or any ground or underlying leases.
(b) Subordination. Tenant agrees that within ten (10) business days
-------------
after receipt of a written request from the Landlord, from the holder or
proposed holder of any Security Deed or from the lessor or proposed lessor
under any underlying lease, Tenant shall execute a subordination, non-
disturbance and attornment agreement ("non-disturbance agreement")
subordinating this Lease to the interest of such holder or lessor and their
respective heirs, successors and assigns. The holder of any such Security
Deed or the lessor under any such underlying lease shall agree in such
nondisturbance agreement that, so long as Tenant complies with all of the
terms and conditions of this Lease and is not in default hereunder beyond
the period of cure of such default as provided herein, such holder or
lessor or any person or entity acquiring the interest of the Landlord under
this Lease as a result of the enforcement of such Security Deed or lease or
deed in lieu thereof (the "Successor Landlord") shall not take any action
to disturb Tenant's possession of the Demised Premises during the remainder
of the Lease Term and any extension or renewal thereof and the Successor
Landlord shall recognize all of Tenant's rights under this Lease, despite
any foreclosure, lease termination or other action by such holder or
lessor, including, without limitation, the taking of possession of the
Demised Premises or any portion thereof by the Successor Landlord or the
exercise of any assignment of rents by the holder or lessor. In any such
non-disturbance agreement, Tenant shall agree to give the holder of the
Security Deed (or, in the case of an underlying lease, the lessor
thereunder) notice of defaults by Landlord hereunder (but only to the
address previously supplied to Tenant in writing) at the same time as such
notice is given to Landlord and time periods to cure such defaults which
are the same as those granted to Landlord hereunder (which time period
shall run from and after such notice is given to such holder or lessor),
and Tenant shall further agree that any Successor Landlord shall not be
personally liable for any accrued obligation of the former landlord, or for
any act or omission of the former landlord, whether prior to or after such
enforcement proceedings, nor be subject to any counterclaims which shall
have accrued to Tenant against the former landlord prior to the date upon
which such Successor Landlord shall become the owner of the Demised
Premises. Such non-disturbance agreement shall also provide for the
attornment by Tenant to the Successor Landlord and shall provide that such
Successor Landlord shall not be (a) subject to any offsets which the Tenant
might have against the former landlord (other than any payments made to
cure a default by Landlord); or (b) bound by any Base Rental or any other
payments (other than any payments made to cure a default by Landlord) which
the Tenant under this Lease might have paid for more than one (1) month in
advance to any former landlord under this Lease. Landlord will join in the
signing of the non-disturbance agreement, and such non-disturbance
agreement will be in the form suitable for recording in the deed records of
Chesterfield County, Virginia.
(c) Election by Mortgagee. If the holder of any Security Deed or any
---------------------
lessor under a ground or underlying lease elects to have this Lease
superior to its Security Deed or lease and signifies its election in the
instrument creating its lien or lease or by separate instrument recorded in
connection with or prior to a foreclosure, or in the foreclosure deed
itself, then this Lease shall be superior to such Security Deed or lease.
27. Estoppel Certificates. Within thirty (30) days after request therefor
---------------------
by Landlord, Tenant agrees to execute and deliver to Landlord in recordable form
an estoppel certificate addressed to Landlord, any
-18-
mortgagee or assignee of Landlord's interest in, or purchaser of, the Demised
Premises or the Building or any part thereof, certifying (if such be the case)
that this Lease is unmodified and is in full force and effect (and if there have
been modifications, that the same is in full force and effect as modified and
stating said modifications); that there are no defenses or offsets against the
enforcement thereof or stating those claimed by Tenant; and stating the date to
which Rent and other charges have been paid. Such certificate shall also include
such other information as may reasonably be required by such mortgagee, proposed
mortgagee, assignee, purchaser or Landlord. Any such certificate may be relied
upon by Landlord, any mortgagee, proposed mortgagee, assignee, purchaser and any
other party to whom such certificate is addressed.
28. Cumulative Rights. All rights, powers and privileges conferred
-----------------
hereunder upon the parties hereto shall be cumulative to, but not restrictive
of, or in lieu of those conferred by law.
29. Holding Over. If Tenant remains in possession after expiration or
------------
termination of the Lease Term with or without Landlord's written consent, Tenant
shall become a tenant-at-sufferance, and there shall be no renewal of this Lease
by operation of law. During the period of any such holding over, all provisions
of this Lease shall be and remain in effect except that the monthly rental shall
be determined as follows:
(a) if Tenant does not give affirmative written notice to Landlord at
least twelve (12) months prior to the expiration of the then current Lease Term
(the Holdover Term as hereinafter defined is not part of the Lease Term) that
Tenant will not renew or extend the Lease Term, then the monthly rental shall be
one hundred and fifty percent (150%) of the amount of Rent (including any
adjustments as provided herein) payable for the last full calendar month of the
Lease Term including renewals or extensions.
(b) if Tenant does give affirmative written notice to Landlord at least
twelve (12) months prior to the expiration of the then current Lease Term that
Tenant will not renew or extend the Lease Term, then Tenant, by written notice
to Landlord given no later than nine (9) months prior to the expiration of the
then current Lease Term may elect to hold over beyond the expiration of the
Lease Term for the period specified in such notice (the "Holdover Term");
provided however that the Holdover Term shall be not more than six (6) months.
If Tenant properly makes such election in accordance with the foregoing
provisions of this subparagraph (b), then for months 1 through 3 of the Holdover
Term, the monthly rental shall be one hundred ten percent (110%) of the amount
of Rent (including any adjustments as provided herein) payable for the last full
calendar month of the Lease Term including renewals or extensions and for months
4 through 6 of the Holdover Term, the monthly rental shall be one hundred
fifteen percent (115%) of the amount of Rent (including any adjustments as
provided herein) payable for the third month of the Holdover Term. After the
expiration of the Holdover Term, monthly rental shall be two hundred percent
(200%) of the amount of Rent (including any adjustments as provided herein)
payable for the last full calendar month of the Lease Term including renewals
and extensions.
The inclusion of the preceding provisions of this Section 29 in this Lease shall
not be construed as Landlord's consent for Tenant to hold over except as
expressly set forth in this Section 29.
30. Surrender of Premises. Upon the expiration or other termination of
---------------------
this Lease, Tenant shall quit and surrender to Landlord the Demised Premises and
every part thereof and all alterations, additions and improvements thereto,
broom clean and in good condition and state of repair, except only reasonable
wear and tear, damage by fire or other casualty, and repairs which are the
responsibility of Landlord. Tenant shall remove Tenant's trade fixtures and all
personalty and equipment not attached to the Demised Premises which it has
placed upon the Demised Premises, and Tenant shall repair all damage to the
Demised Premises, Building or Project caused by the removal of such property.
If Tenant shall fail or refuse to remove all of Tenant's effects, personalty and
equipment from the Demised Premises upon the expiration or termination of this
Lease for any cause whatsoever or upon the Tenant being dispossessed by process
of law or otherwise, such effects, personalty and equipment shall be deemed
conclusively to be abandoned and may be appropriated, sold, stored, destroyed or
otherwise disposed of by Landlord without obligation to account for them.
Tenant shall pay Landlord on demand any and all expenses incurred by Landlord in
the removal of such property, including,
-19-
without limitation, the cost of repairing any damage to the Building or Project
caused by the removal of such property and storage charges (if Landlord elects
to store such property). The covenants and conditions of this Article 30 shall
survive any expiration or termination of this Lease.
31. Notices. All notices required or permitted to be given hereunder
-------
shall be in writing and may be delivered in person to either party or may be
sent by courier or by United States Mail, certified, return receipt requested,
postage prepaid. Any such notice shall be deemed received by the party to whom
it was sent (i) in the case of personal delivery or courier delivery, on the
date of delivery to such party, and (ii) in the case of certified mail, the date
receipt is acknowledged on the return receipt for such notice or, if delivery is
rejected or refused or the U.S. Postal Service is unable to deliver same because
of changed address of which no notice was given pursuant hereto, the first date
of such rejection, refusal or inability to deliver. All such notices shall be
addressed to Landlord or Tenant at their respective address set forth
hereinabove or at such other address as either party shall have theretofore
given to the other by notice as herein provided.
32. Damage or Theft of Personal Property. All personal property brought
------------------------------------
into Demised Premises by Tenant, or Tenant's employees or business visitors,
shall be at the risk of Tenant only, and Landlord shall not be liable for theft
thereof or any damage thereto occasioned by any act of co-tenants, occupants,
invitees or other users of the Building or any other person, unless such theft
or damage is the result of the act of Landlord or its employees and Landlord is
not relieved therefrom by Article 17 hereof. Unless caused by the negligence of
Landlord or its employees, Landlord shall not at any time be liable for damage
to any property in or upon the Demised Premises which results from power surges
or other deviations from the constancy of the electrical service or from gas,
smoke, water, rain, ice or snow which issues or leaks from or forms upon any
part of the Building or from the pipes or plumbing work of the same, or from any
other place whatsoever.
33. Eminent Domain.
--------------
(a) If all or part of the Demised Premises shall be taken for any
public or quasi-public use by virtue of the exercise of the power of
eminent domain or by private purchase in lieu thereof, this Lease shall
terminate as to the part so taken as of the date of taking, and, in the
case of a partial taking, either Landlord or Tenant shall have the right to
terminate this Lease as to the balance of the Demised Premises by written
notice to the other within thirty (30) days after such date; provided,
however, that a condition to the exercise by Tenant of such right to
terminate shall be either (i) that more than fifteen percent (15%) of the
Demised Premises was taken or (ii) that the portion of the Demised Premises
taken shall be of such extent and nature as substantially to handicap,
impede or impair Tenant's use of the balance of the Demised Premises. If
title to so much of the Building is taken that a reasonable amount of
reconstruction thereof will not in Landlord's sole discretion result in the
Building being a practical improvement and reasonably suitable for use for
the purpose for which it is designed, then this Lease shall terminate on
the date that the condemning authority actually takes possession of the
part so condemned or purchased.
(b) If this Lease is terminated under the provisions of this Article
33, Rent shall be apportioned and adjusted as of the date of termination.
Tenant shall have no claim against Landlord or against the condemning
authority for the value of any leasehold estate or for the value of the
unexpired Lease Term provided that the foregoing shall not preclude any
claim that Tenant may have against the condemning authority for the
unamortized cost of leasehold improvements, to the extent the same were
installed at Tenant's expense (and not with the proceeds of the
Construction Allowance), or for loss of business, moving expenses or other
consequential damages, in accordance with subparagraph (d) below.
(c) If there is a partial taking of the Building and this Lease is
not thereupon terminated under the provisions of this Article 33, then this
Lease shall remain in full force and effect, and Landlord shall, within a
reasonable time thereafter, repair or reconstruct the remaining portion of
the
-20-
Building to the extent necessary to make the same a complete architectural
unit; provided that in complying with its obligations hereunder Landlord
shall not be required to expend more than the net proceeds of the
condemnation award which are paid to Landlord.
(d) All compensation awarded or paid to Landlord upon a total or
partial taking of the Demised Premises or the Building shall belong to and
be the property of Landlord without any participation by Tenant. All
compensation awarded or paid to Landlord upon a temporary taking of all or
any portion of the Demised Premises with respect to which Tenant exercises
Tenant's right to terminate under Article 33(e) shall belong to and be the
property of Landlord without any participation by Tenant. Nothing herein
shall be construed to preclude Tenant from prosecuting any claim directly
against the condemning authority for loss of business, for damage to, and
cost of removal of, trade fixtures, furniture and other personal property
belonging to Tenant, and for the unamortized cost of leasehold improvements
to the extent same were installed at Tenant's expense (and not with the
proceeds of the Construction Allowance). In no event shall Tenant have or
assert a claim for the value of any unexpired term of this Lease. Subject
to the foregoing provisions of this subparagraph (d), Tenant hereby assigns
to Landlord any and all of its right, title and interest in or to any
compensation awarded or paid as a result of any such taking.
(e) Notwithstanding anything to the contrary contained in this
Article 33, if, during the Lease Term, the use or occupancy of any part of
the Building or the Demised Premises shall be taken or appropriated
temporarily for any public or quasi-public use under any governmental law,
ordinance, or regulations, or by right of eminent domain, this Lease shall
be and remain unaffected by such taking or appropriation and Tenant shall
continue to pay in full all Rent payable hereunder by Tenant during the
Lease Term; provided, however, that if Landlord reasonably estimates that
the temporary taking will continue for a period in excess of ninety (90)
days, Tenant shall have the right to terminate this Lease solely with
respect to the portion of the Demised Premises which is the subject of such
temporary taking by giving Landlord written notice of such termination
within fifteen (15) days after the date of such temporary taking. In the
event of any such temporary appropriation or taking with respect to which
Tenant does not exercise the right of termination set forth in the sentence
immediately preceding this sentence, Tenant shall be entitled to receive
that portion of any award which represents compensation for the loss of use
or occupancy of the Demised Premises during the Lease Term, and Landlord
shall be entitled to receive that portion of any award which represents the
cost of restoration and compensation for the loss of use or occupancy of
the Demised Premises after the end of the Lease Term. In the event of any
such temporary appropriation or taking with respect to which Tenant
exercises the right of termination set forth in the first sentence of this
Article 33(e), Landlord shall be entitled to receive that portion of any
award which represents compensation for the loss of use or occupancy of the
portion of the Demised Premises with respect to which such termination is
effective.
34. Parties. The term "Landlord", as used in this Lease, shall include
-------
Landlord and its assigns and successors. It is hereby covenanted and agreed by
Tenant that should Landlord's interest in the Demised Premises cease to exist
for any reason during the Lease Term, then notwithstanding the happening of such
event, this Lease nevertheless shall remain in full force and effect, and Tenant
hereby agrees to attorn to the then owner of the Demised Premises. The term
"Tenant" shall include Tenant and its heirs, legal representatives and
successors, and shall also include Tenant's assignees and sublessees, if this
Lease shall be validly assigned or the Demised Premises sublet for the balance
of the Lease Term or any renewals or extensions thereof. In addition, Landlord
and Tenant covenant and agree that Landlord's right to transfer or assign
Landlord's interest in and to the Demised Premises, or any part or parts
thereof, shall be unrestricted, and that, except as expressly otherwise provided
in the last sentence of Paragraph 37 of this Lease, in the event of any such
transfer or assignment by Landlord which includes the Demised Premises,
Landlord's obligations to Tenant thereafter arising hereunder shall cease and
terminate, and Tenant shall look only and solely to Landlord's assignee or
transferee for performance thereof.
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35. Indemnification. Tenant hereby indemnifies Landlord from and agrees
---------------
to hold Landlord harmless against, any and all liability, loss, cost, damage or
expense, including, without limitation, court costs and reasonable attorney's
fees, imposed on Landlord by any person whomsoever, caused in whole or in part
by any negligent act or omission of Tenant, or any of its employees,
contractors, servants, agents, subtenants or assignees, or of Tenant's invitees
while such invitees are within the Demised Premises or the Building, or
otherwise occurring in connection with any default of Tenant hereunder except
for such matters as are caused by the gross negligence or willful misconduct of
Landlord, its employees, agents, contractors and subcontractors. Landlord
hereby indemnifies Tenant from and agrees to hold Tenant harmless against, any
and all liability, loss, cost, damage or expense, including, without limitation,
court costs and reasonable attorney's fees, imposed on Tenant by any person
whomsoever, caused in whole or in part by any negligent act or omission of
Landlord, or any of its employees, contractors, servants, agents, subtenants or
assignees, or of Landlord's invitees while such invitees are within the Demised
Premises or the Building, or otherwise occurring in connection with any default
of Landlord hereunder except for such matters as are caused by the gross
negligence or willful misconduct of Tenant, its employees, agents, contractors
and subcontractors. The provisions of this Article 35 shall survive any
termination of this Lease.
36. Force Majeure. In the event of strike, lockout, labor trouble, civil
-------------
commotion, act of God, or any other cause beyond a party's control (collectively
"force majeure") resulting in the Landlord's inability to supply the services or
perform the other obligations required of Landlord hereunder, then, except for
the express rights of termination granted to Tenant elsewhere in this Lease,
this Lease shall not terminate and Tenant's obligation to pay Rent and all other
charges and sums due and payable by Tenant shall not be affected or excused and
Landlord shall not be considered to be in default under this Lease. If, as a
result of force majeure, Tenant is delayed in performing any of its obligations
under this Lease, other than Tenant's obligation to pay Rent and all other
charges and sums payable by Tenant hereunder, Tenant's performance shall be
excused for a period equal to such delay and Tenant shall not during such period
be considered to be in default under this Lease with respect to the obligation,
performance of which has thus been delayed.
37. Landlord's Liability. Landlord shall have no personal liability with
--------------------
respect to any of the provisions of this Lease. If Landlord is in default with
respect to its obligations under this Lease, Tenant shall look for satisfaction
of Tenant's remedies, if any, solely to the equity of Landlord in and to the
Building and the Land described in Exhibit "A" hereto and to the proceeds of
-----------
Landlord's insurance policy or policies actually paid to Landlord and not
applied by Landlord by the applicable claim or to the restoration of the
Building as required by the terms of this Lease (unless same are not so applied
because such proceeds are required by the holder of a mortgage to be paid to it
to reduce the debt secured by such mortgage). It is expressly understood and
agreed that Landlord's liability under the terms of this Lease shall in no event
exceed the amount of its interest in and to said Land and Building and the
aforedescribed proceeds of insurance. In no event shall any partner of Landlord
nor any joint venturer in Landlord, nor any officer, director or shareholder of
Landlord or any such partner or joint venturer of Landlord be personally liable
with respect to any of the provisions of this Lease. The foregoing limitation
of liability and agreements set forth in this Section 37 shall be inapplicable
to the liability of Landlord for failure of Landlord to comply with the
provisions of Section 39(h) of this Lease; provided, however, that in the event
of the transfer or assignment of this Lease, the assignor Landlord shall only be
liable for the failure of the assignor Landlord to comply with the provisions of
Section 39(h) during the period of such assignor's ownership of the Landlord's
interest in this Lease, and the assignee Landlord shall only be liable for the
failure of the assignee Landlord to comply with the provisions of Section 39(h)
of this Lease during the period of such assignee's ownership of the Landlord's
interest in this Lease.
38. Landlord's Covenant of Quiet Enjoyment. Provided Tenant performs the
--------------------------------------
terms, conditions and covenants of this Lease, and subject to the terms and
provisions hereof, Landlord covenants and agrees to take all necessary steps to
secure and to maintain for the benefit of Tenant the quiet and peaceful
possession, occupancy and use of the Demised Premises, for the Lease Term,
without hindrance, claim or molestation by Landlord or any other person lawfully
claiming under Landlord.
-22-
39. Letter of Credit.
----------------
(a) As security for the performance by Tenant of its obligations
under this Lease, Tenant hereby covenants and agrees that it shall obtain
and maintain in full force and effect at all times during the time period
commencing on the date of execution of this Lease through the seventh (7th)
anniversary of the Rental Commencement Date (such period of time being
referred to herein as the "Security Period") an irrevocable stand-by letter
of credit or irrevocable stand-by replacement letter of credit subject to
and in accordance with the terms and conditions set forth below (such
letters of credit and replacement letters of credit required to be provided
hereunder being herein individually referred to as a "Letter of Credit" and
collectively as the "Letters of Credit"; the initial Letter of Credit in
the amount of $4,000,000 delivered hereunder and any replacement of such
initial Letter of Credit that has a term which includes any period of time
prior to the Rental Commencement Date is sometimes referred to herein as
the "Original Letter of Credit"; and any subsequent Letter of Credit issued
after the Rental Commencement Date is sometimes herein referred to as a
"Replacement Letter of Credit"). Landlord and Tenant acknowledge that in
lieu of issuing a replacement of the initial or any subsequent Letter of
Credit, the issuer of the then existing Letter of Credit may elect to amend
the then existing Letter of Credit to extend the maturity date thereof as
required hereunder and, if applicable, reduce the amount of the Letter of
Credit to the amount required to be maintained hereunder as of the date
such reduction is permitted hereunder (it being understood and agreed that
such amendment(s) shall be limited to such matters only), by issuing an
amendment to the then existing Letter of Credit, in which case the
"Original Letter of Credit" or the "Replacement Letter of Credit" shall be
deemed to be the then existing Letter of Credit, as so amended.
(b) Each Letter of Credit issued hereunder shall (i) be in the form
of an irrevocable credit; (ii) be issued by an "Approved Issuer" (as
hereinafter defined); (iii) name Landlord as the beneficiary and will state
that it is transferable by Landlord to the assigns of Landlord's interest
in this Lease upon notice from Landlord, the payment of the issuer's
transfer charges as set forth in the applicable Letter of Credit and
compliance with the issuer's customary requirements relating to such
transfers (each Letter of Credit shall expressly contain an acknowledgement
by the issuer that such Letter of Credit can be transferred by Landlord to
any holder of any mortgage on Landlord's interest in the Project to secure
such holder's mortgage); and (iv) specify that Landlord, as beneficiary,
may draw against the Letter of Credit, without documents other than the
sight draft and certification set forth below, at any time and from time to
time until the expiration thereof at one or more designated branches of the
issuing bank in Atlanta, Georgia, or at one or more designated bank
counters at designated offices of the issuing bank in either Atlanta,
Georgia, or New York City, New York, in a single drawing for the full
amount of such Letter of Credit, upon presentation of a sight draft and
written certification from Landlord, as beneficiary, that a "Drawing Event"
described in Article 39(l) of this Lease has occurred and is continuing
under this Lease and that Landlord has the right to draw against the Letter
of Credit for the sum set forth in the sight draft under the provisions of
this Article 39. "Approved Issuer" shall mean: (x) Svenska Handelsbanken
(or its successor) for so long as Svenska Handelsbanken (or its successor)
(A) shall maintain a banking office with banking counters in either or both
of Atlanta, Georgia, and New York City, New York, and (B) shall have and
maintain a ▇▇▇▇▇'▇ Bank Credit Report Service rating of P-1 (or, if ▇▇▇▇▇'▇
subsequently uses a different scale, the rating which would be equivalent
to the current P-1, or if ▇▇▇▇▇'▇ dissolves or otherwise becomes defunct,
the rating of another nationally recognized rating service which would be
equivalent to the current P-1); or (y) such other national banking
association which Tenant, in its discretion, may designate and which shall
be approved by Landlord in its reasonable discretion, provided and for so
long as such national banking association (A) shall maintain a banking
office with banking counters in either or both of Atlanta, Georgia, and New
York City, New York, and (B) shall have and maintain a ▇▇▇▇▇'▇ Bank Credit
Report Service rating of P-1 (or, if ▇▇▇▇▇'▇ subsequently uses a different
scale, the rating which would be equivalent to the current P-1, or if
▇▇▇▇▇'▇ dissolves or otherwise becomes defunct, the rating of another
nationally recognized rating service which would be equivalent to the
current P-1). The
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Original Letter of Credit shall have an initial expiration date of the
first anniversary of the date of this Lease, but Tenant shall maintain the
Original Letter of Credit in effect in accordance with the provisions of
Article 39(c) until at least ninety (90) days after the Rental Commencement
Date, the first Replacement Letter of Credit shall have an expiration date
of the first anniversary of the Rental Commencement Date, the second
Replacement Letter of Credit shall have an expiration date of the second
anniversary of the Rental Commencement Date, the third Replacement Letter
of Credit shall have an expiration date of the third anniversary of the
Rental Commencement Date, the fourth Replacement Letter of Credit shall
have an expiration date of the fourth anniversary of the Rental
Commencement Date, the fifth Replacement Letter of Credit shall have an
expiration date of the fifth anniversary of the Rental Commencement Date,
the sixth Replacement Letter of Credit shall have an expiration date of the
sixth anniversary of the Rental Commencement Date, and the seventh
Replacement Letter of Credit shall have an expiration date of the seventh
anniversary of the Rental Commencement Date. The Letters of Credit shall be
in the following amounts for the following time periods:
Amount of
Time Period Letter of Credit
----------- ----------------
Date of execution of this $ 4,000,000.00
-------------
Lease to 5/th/ anniversary of
Rental Commencement Date
5/th/ anniversary of Rental $ 2,000,000.00
-------------
Commencement Date to
7/th/ anniversary of Rental
Commencement Date
(c) The Original Letter of Credit shall have a term of approximately
one (1) year and shall be delivered to Landlord by Tenant simultaneously
with the execution of this Lease. Tenant shall maintain the Original
Letter of Credit in effect (either by replacement thereof or amendment
thereto) for a term which extends at least ninety (90) days after the
Rental Commencement Date (the ninetieth (90th) day preceding the expiration
of the Original Letter of Credit is herein defined as the "Replacement
Date" applicable to the Original Letter of Credit). Accordingly, at least
ninety (90) days prior to the expiration of the Original Letter of Credit,
Tenant shall cause the expiration date of the Original Letter of Credit to
be extended (either by issuance of a replacement of the then existing
Original Letter of Credit or an appropriate amendment thereto) to the end
that the Original Letter of Credit shall at all times by maintained in
effect by Tenant for a term which extends at least ninety (90) days after
the Rental Commencement Date. If the replacement of or amendment to the
then existing Original Letter of Credit is issued on or after the Rental
Commencement Date, such replacement Letter of Credit or amended Letter of
Credit, as the case may be, shall constitute the first Replacement Letter
of Credit, and such first Replacement Letter of Credit shall have an
expiration date of the first anniversary of the Rental Commencement Date.
At least ninety (90) days prior to each of the first, second, third,
fourth, fifth, and sixth anniversaries of the Rental Commencement Date (the
ninetieth (90th) day preceding each such anniversary being herein referred
to as a "Replacement Date"), a Replacement Letter of Credit replacing the
expiring Letter of Credit which must be effective (i.e., capable of being
drawn upon) on or before the expiration date of the expiring Letter of
Credit (the actual date of delivery of each Replacement Letter of Credit
being herein referred to as a "Letter Delivery Date") and shall expire on
the second (2nd) Rental Commencement Date anniversary following such Letter
Delivery Date, shall be delivered to Landlord by Tenant; it being
understood and agreed by Tenant that, notwithstanding any other term or
provision of this Article 39 [but subject to the terms of Article 39(f)], a
Letter of Credit in the applicable amount required pursuant to the schedule
above shall be outstanding and in full force and effect at all times during
the Security Period. Tenant's
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obligation to maintain a Letter of Credit hereunder shall cease and expire
on the seventh (7/th/) anniversary of the Rental Commencement Date.
(d) Upon receipt of any newly issued Letter of Credit (if same is a
newly issued Letter of Credit, as opposed to an amendment of the then
existing Letter of Credit), and provided that such newly issued Letter of
Credit becomes effective on or before the date of delivery thereof to
Landlord, Landlord shall deliver to Tenant (or, at the direction of Tenant,
the issuing bank) the expiring Letter of Credit in exchange for the newly
issued Letter of Credit. Upon receipt of any newly issued Letter of Credit
which becomes effective after the date of delivery thereof to Landlord,
Landlord shall deliver to Tenant (or, at Tenant's direction, the issuing
bank) the expiring Letter of Credit on the effective date of the newly
issued Letter of Credit (unless Landlord has drawn on such expiring Letter
of Credit in accordance with this Article 39), it being understood and
agreed that in such case the expiring Letter of Credit shall remain in full
force and effect until the effective date of the newly issued Letter of
Credit. Notwithstanding any other provision of this Article 39 to the
contrary, each Replacement Letter of Credit having an effective date prior
to the expiration date of the expiring Letter of Credit shall be in the
amount of the expiring Letter of Credit from the applicable Letter Delivery
Date until the next anniversary date of the Rental Commencement Date and
then shall automatically (by the terms of such Replacement Letter of
Credit) reduce to the applicable lower amount set forth on the schedule
above as of such anniversary date. All fees, premiums and other sums
charged by the issuing bank for each Letter of Credit shall be paid by
Tenant, and not Landlord.
(e) In the event that a Drawing Event occurs under this Lease, it is
understood and agreed that Landlord shall thereupon have the right, in its
discretion and at any time during the continuance of such Drawing Event, to
draw upon the full face amount of the then outstanding Letter of Credit.
(f) The failure by Tenant, for any reason whatsoever, to maintain the
Original Letter of Credit or any Replacement Letter of Credit in full force
and effect at all times during the Security Period shall constitute an
immediate Drawing Event and an immediate event of default hereunder (no
notice and right to cure period or grace period shall be a condition to
such failure constituting an event of default hereunder notwithstanding the
provisions of Article 18 of this Lease) and, in addition to (and not in
lieu of) all other rights and remedies available to Landlord under this
Lease or at law or in equity, Landlord shall have the right to ▇▇▇ Tenant
for specific performance of its obligation to deliver and maintain the
applicable Letter of Credit.
(g) It is understood and agreed that the Letters of Credit are
required to be issued hereunder as security for the performance of Tenant's
obligations under this Lease after the occurrence of a Drawing Event and,
notwithstanding any other term or provision of this Article 39 or elsewhere
in this Lease, such Letters of Credit and the receipt of the proceeds
therefrom are not intended by Landlord and Tenant to be, and shall not be
construed or deemed to be, liquidated damages or a cap, restriction or
limitation of any kind or sort on or with respect to any of Landlord's
rights and remedies under this Lease or at law or in equity by virtue of
the occurrence of a Drawing Event or of an event of default; it being
understood and agreed by Tenant that Landlord hereby expressly reserves all
rights and remedies against Tenant, including without limitation a suit or
suits for monetary damages, available to it under this Lease and at law or
in equity because of a Drawing Event or an event of default.
(h) Any proceeds received by Landlord from any Letter of Credit
(hereinafter called the "Proceeds") shall be applied by Landlord first
toward the performance of Tenant's obligations which Tenant has failed to
perform under this Lease, and the remainder, if any, shall be held by
Landlord, in such "Permitted Investments" (as hereinafter defined) as
Landlord shall determine, in Landlord's sole discretion, as additional
security for the faithful performance by Tenant throughout the Security
Period of all the terms and conditions of the Lease on the part of Tenant
to be performed. If all or any part of the Proceeds is or are so applied
by Landlord, then Tenant shall immediately upon demand from
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Landlord pay to Landlord an amount sufficient to return the Proceeds to an
amount equal to the amount set forth in Article 39(b) as the amount of the
Letter of Credit which was otherwise required to be maintained by Tenant at
such time. In no event shall Landlord be responsible or liable for any
decrease in the Proceeds invested in Permitted Investments. Any interest
earned on the Proceeds shall become part of the Proceeds. Permitted
Investments shall mean, collectively, (a) direct obligations of the United
States of America or of any agency or political subdivision thereof, or
obligations guaranteed as to principal and interest by the United States or
by any agency or political subdivision thereof, in any case maturing not
more than ninety (90) days from the date of acquisition thereof; (b)
certificates of deposit issued by any bank having capital, surplus and
undivided profits of at least U.S.$200,000,000 and a long-term unsecured
senior debt rating of at least "A" by Standard & Poor's and "A2" by
▇▇▇▇▇'▇, in any case maturing not more than ninety (90) days from the date
of acquisition thereof; and (c) commercial paper rated "P-1" or better by
▇▇▇▇▇'▇ or "A-1" or better by Standard & Poor's, in any case maturing not
more than ninety (90) days from the date of acquisition thereof. If, on the
fifth (5/th/) anniversary of the Rental Commencement Date no event of
default then exists under this Lease and the Proceeds in Landlord's
possession in excess of the unreimbursed amounts incurred by or owed to
Landlord in connection with any default by Tenant under this Lease equal or
exceed $2,000,000.00, Landlord shall refund to Tenant the amount by which
the Proceeds in excess of such unreimbursed amounts equal or exceed
$2,000,000.00. If, on the seventh (7/th/) anniversary of the Rental
Commencement Date no event of default then exists under this Lease and
there are any Proceeds in Landlord's possession in excess of the
unreimbursed amounts incurred by or owed to Landlord in connection with any
default by Tenant under this Lease, Landlord shall refund to Tenant such
excess. If no event of default then exists under this Lease and Tenant
delivers to Landlord a Letter of Credit complying in all respects with the
terms of this Lease, in the amount of the Letter of Credit that would then
be required to be in effect had Landlord not drawn on the previous Letter
of Credit, then upon such delivery, Landlord shall refund to Tenant the
Proceeds then held by Landlord.
(i) Landlord shall have the right to apply all or any part of the
Proceeds toward the performance of Tenant's obligations which Tenant has
failed to perform under this Lease.
(j) In the event of a sale or transfer of Landlord's interest in the
Demised Premises or the Building or a lease by Landlord of the Building,
Landlord shall have the right to transfer the Proceeds to the purchaser or
lessee, as the case may be, and Landlord shall be relieved of all liability
to Tenant for the return of the Proceeds. The Tenant shall look solely to
the new owner or lessor for the return of the Proceeds. The Proceeds shall
not be mortgaged, assigned or encumbered by Tenant. In the event of a
permitted assignment or subletting under this Lease by Tenant, the Proceeds
shall be held by Landlord as a deposit made by the permitted assignee or
subtenant and the Landlord shall have no further liability with respect to
the return of the Proceeds to the original Tenant.
(k) Landlord shall keep the Proceeds in Permitted Investments
separate from its general accounts.
(l) "Drawing Event" shall mean any one or more of the following:
(i) an event of default under Article 18(a)(i) of this
Lease;
(ii) an event of default under Article 18(a)(ii) of this
Lease with respect to which Landlord performs Tenant's
unperformed obligation and incurs costs in connection with such
performance and Tenant fails to reimburse Landlord in full for
all such costs within ten (10) days after written notice from
Landlord to Tenant;
(iii) any event of default under Article 18(a)(iii), (iv),
(v), (vi) or (x);
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(iv) any other event of default under Article 18 with
respect to which Landlord has commenced or is simultaneously
commencing an action to terminate this Lease or terminate
Tenant's right to possession under Article 18(b)(i), Article
18(b)(ii), at law or in equity, and such action is not dismissed
within sixty (60) days after the filing thereof.
40. Hazardous Substances. Tenant hereby covenants and agrees that Tenant
--------------------
shall not cause or permit any "Hazardous Substances" (as hereinafter defined) to
be generated, placed, held, stored, used, located or disposed of at the Project
or any part thereof, except for Hazardous Substances as are commonly and legally
used or stored as a consequence of using the Demised Premises for general office
and administrative purposes (and, if permitted hereunder, medical treatment and
medical laboratory purposes), but only so long as the quantities thereof do not
pose a threat to public health or to the environment or would necessitate a
"response action", as that term is defined in CERCLA (as hereinafter defined),
and so long as Tenant strictly complies or causes compliance with all applicable
governmental rules and regulations concerning the use, storage, production,
transportation and disposal of such Hazardous Substances. For purposes of this
Article 40, "Hazardous Substances" shall mean and include those elements or
compounds which are contained in the list of Hazardous Substances adopted by the
United States Environmental Protection Agency (EPA) or in any list of toxic
pollutants designated by Congress or the EPA or which are defined as hazardous,
toxic, pollutant, infectious or radioactive by any other federal, state or local
statute, law, ordinance, code, rule, regulation, order or decree regulating,
relating to or imposing liability (including, without limitation, strict
liability) or standards of conduct concerning, any hazardous, toxic or dangerous
waste, substance or material, as now or at any time hereinafter in effect
(collectively "Environmental Laws"). Tenant hereby agrees to indemnify Landlord
and hold Landlord harmless from and against any and all losses, liabilities,
including strict liability, damages, injuries, expenses, including reasonable
attorneys' fees, costs of settlement or judgment and claims of any and every
kind whatsoever paid, incurred or suffered by, or asserted against, Landlord by
any person, entity or governmental agency for, with respect to, or as a direct
or indirect result of, the presence in, or the escape, leakage, spillage,
discharge, emission or release from, the Demised Premises of any Hazardous
Substances (including, without limitation, any losses, liabilities, including
strict liability, damages, injuries, expenses, including reasonable attorneys'
fees, costs of any settlement or judgment or claims asserted or arising under
the Comprehensive Environmental Response, Compensation and Liability Act
["CERCLA"], any so-called federal, state or local "Superfund" or "Superlien"
laws or any other Environmental Law); provided, however, that the foregoing
indemnity is limited to matters arising solely from Tenant's violation of the
covenant contained in this Article. The obligations of Tenant under this
Article shall survive any expiration or termination of this Lease.
41. Submission of Lease. The submission of this Lease for examination
-------------------
does not constitute an offer to lease and this Lease shall be effective only
upon execution hereof by Landlord and Tenant.
42. Severability. If any clause or provision of the Lease is illegal,
------------
invalid or unenforceable under present or future laws, the remainder of this
Lease shall not be affected thereby, and in lieu of each clause or provision of
this Lease which is illegal, invalid or unenforceable, there shall be added as a
part of this Lease a clause or provision as nearly identical to the said clause
or provision as may be legal, valid and enforceable.
43. Entire Agreement. This Lease contains the entire agreement of the
----------------
parties and no representations, inducements, promises or agreements, oral or
otherwise, between the parties not embodied herein shall be of any force or
effect. No failure of Landlord to exercise any power given Landlord hereunder,
or to insist upon strict compliance by Tenant with any obligation of Tenant
hereunder, and no custom or practice of the parties at variance with the terms
hereof, shall constitute a waiver of Landlord's right to demand exact compliance
with the terms hereof. No failure of Tenant to exercise any power given Tenant
hereunder, or to insist upon strict compliance by Landlord with any obligation
of Landlord hereunder, and no custom or practice of the parties at variance with
the terms hereof, shall constitute a waiver of Tenant's right to demand exact
compliance with the terms hereof. This Lease may not be altered, waived,
amended or extended except
-27-
by an instrument in writing signed by Landlord and Tenant. This Lease is not in
recordable form, and Tenant agrees not to record or cause to be recorded this
Lease or any short form or memorandum thereof.
44. Headings. The use of headings herein is solely for the convenience of
--------
indexing the various paragraphs hereof and shall in no event be considered in
construing or interpreting any provision of this Lease.
45. Broker. Tenant represents and warrants to Landlord that (except with
------
respect to any Broker[s] identified in Article 1[m] hereinabove) no broker,
agent, commission salesperson, or other person has represented Tenant in the
negotiations for and procurement of this Lease and of the Demised Premises and
that (except with respect to any Broker[s] identified in Article 1[m]
hereinabove) no commissions, fees, or compensation of any kind are due and
payable in connection herewith to any broker, agent, commission salesperson, or
other person as a result of any act or agreement of Tenant. Tenant agrees to
indemnify and hold Landlord harmless from all loss, liability, damage, claim,
judgment, cost or expense (including reasonable attorneys' fees and court costs)
suffered or incurred by Landlord as a result of a breach by Tenant of the
representation and warranty contained in the immediately preceding sentence or
as a result of Tenant's failure to pay commissions, fees, or compensation due to
any broker who represented Tenant, whether or not disclosed, or as a result of
any claim for any fee, commission or similar compensation with respect to this
Lease made by any broker, agent or finder (other than the Broker[s] identified
in Article 1[m] hereinabove) claiming to have dealt with Tenant. Tenant shall
cause any agent or broker representing Tenant to execute a lien waiver to and
for the benefit of Landlord, waiving any and all lien rights with respect to the
Building and Land which such agent or broker has or might have under Virginia
law. Landlord agrees to indemnify and hold Tenant harmless from all loss,
liability, damage, claim, judgement, cost or expense, (including reasonable
attorney's fees and court costs) suffered or incurred by Tenant as a result of
Landlord's failure to pay commissions, fees or compensation due to any broker
who represented Landlord, whether or not disclosed, with respect to this Lease,
including any Broker identified in Article 1(m).
46. Governing Law. The laws of the Commonwealth of Virginia shall govern
-------------
the validity, performance and enforcement of this Lease. Tenant hereby submits
to the non-exclusive personal jurisdiction in the Commonwealth of Virginia, the
courts thereof and the United States District Courts sitting therein, for the
enforcement of this Lease, and Tenant hereby waives any and all personal rights
under the law of any jurisdiction to object on any basis (including, without
limitation, inconvenience of forum) to jurisdiction or venue within the
Commonwealth of Virginia for the purpose of litigation to enforce this Lease.
47. Special Stipulations. The special stipulations attached hereto as
--------------------
Exhibit "F" are hereby incorporated herein by this reference as though fully set
-----------
forth.
48. Authority. Each of the persons executing this Lease on behalf of
---------
Tenant does hereby personally represent and warrant that each person signing on
behalf of the corporation is an officer of the corporation and is authorized to
sign on behalf of the corporation. Tenant does hereby represent and warrant
that Tenant is a duly incorporated and validly existing corporation and is fully
authorized and qualified to do business in the Commonwealth of Virginia, that
the corporation has full right and authority to enter into this Lease, and that
each person signing on behalf of the corporation is an officer of the
corporation and is authorized to sign on behalf of the corporation. Upon the
request of Landlord, Tenant shall deliver to Landlord documentation satisfactory
to Landlord evidencing Tenant's compliance with this Article, and Tenant agrees
to promptly execute all necessary and reasonable applications or documents as
reasonably requested by Landlord, required by the jurisdiction in which the
Demised Premises is located, to permit the issuance of necessary permits and
certificates for Tenant's use and occupancy of the Demised Premises. Each of
the persons executing this Lease on behalf of Landlord does hereby personally
represent and warrant that each person signing on behalf of the corporate
general partner of the general partner of Landlord is an officer of such
corporation and is authorized to sign on behalf of such corporation as general
partner of the general partner of Landlord. Landlord does hereby represent and
warrant that Landlord is a duly formed and validly existing limited partnership
and is fully authorized and qualified to do business in the Commonwealth of
Virginia, that
-28-
the limited partnership has full right and authority to enter into this Lease,
and that each person signing on behalf of the of the corporate general partner
of the general partner of Landlord is an officer of such corporation and is
authorized to sign on behalf of such corporation as general partner of the
general partner of Landlord.
IN WITNESS WHEREOF, the parties have hereunto set their hands and seals as
of the day, month and year first above written.
▇▇▇▇▇ REIT, LLC - VA I,
a Georgia limited liability company
By: ▇▇▇▇▇ Operating Partnership, L.P., a
Delaware limited partnership, sole member
By: ▇▇▇▇▇ Real Estate Investment Trust,
Inc., a Maryland corporation, General
Partner
By: ▇▇▇▇▇ Capital, Inc., a Georgia
corporation, General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
-------------------------
▇▇▇ ▇. ▇▇▇▇▇, III,
President
[CORPORATE SEAL]
[Signatures continued on following page]
-29-
[Signatures continued from previous page]
"TENANT":
ABB POWER GENERATION INC., a Delaware corporation
By: /s/ [ILLEGIBLE]^^
------------------------------
Its: President
------------------------------
Attest: /s/ [ILLEGIBLE]^^
------------------------------
Its: Secretary
------------------------------
(CORPORATE SEAL)
-30-
RULES AND REGULATIONS
1. No sign, picture, advertisement or notice visible from the exterior of the
Demised Premises shall be installed, affixed, inscribed, painted or
otherwise displayed by Tenant on any part of the Demised Premises or the
Building unless the same is first approved by Landlord. Any such sign,
picture, advertisement or notice approved by Landlord shall be painted or
installed for Tenant at Tenant's cost by Landlord or by a party approved by
Landlord. No awnings, curtains, blinds, shades or screens shall be attached
to or hung in, or used in connection with any window or door of the Demised
Premises without the prior consent of the Landlord, including approval by
the Landlord of the quality, type, design, color and manner of attachment.
2. Tenant agrees that its use of electrical current shall never exceed the
capacity of existing feeders, risers or wiring installation provided as
Building Standard Services (see Exhibit "H").
-----------
3. The Demised Premises shall not be used for storage of merchandise held for
sale to the general public. Tenant shall not do or permit to be done in or
about the Demised Premises or Building anything which shall increase the
rate of insurance on said Building or obstruct or interfere with the rights
of other lessees of Landlord or annoy them in any way, including, but not
limited to, using any musical instrument, making loud or unseemly noises,
or singing, etc. The Demised Premises shall not be used for sleeping or
lodging. No cooking or related activities shall be done or permitted by
Tenant in the Demised Premises except with permission of Landlord. Tenant
will be permitted to use for its own employees within the Demised Premises
small Underwriter's Laboratory approved microwave ovens and Underwriters'
Laboratory approved equipment for brewing coffee, tea, hot chocolate and
similar beverages, provided that such use is in accordance with all
applicable federal, state, county and city laws, codes, ordinances, rules
and regulations, and provided that such use shall not result in the
emission of odors from the Demised Premises into the other areas of the
Building. No vending machines of any kind will be installed, permitted or
used on any part of the Demised Premises without the prior consent of
Landlord, provided, however, that Landlord will not unreasonably withhold,
condition or delay such consent with respect to vending machines installed
in the Demised Premises solely for the use of Tenant's employees. No part
of said Building or Demised Premises shall be used for gambling, immoral or
other unlawful purposes. No intoxicating beverage shall be sold in said
Building or Demised Premises without prior written consent of the Landlord.
No area outside of the Demised Premises shall be used for storage purposes
at any time.
4. No birds or animals of any kind shall be brought into the Building (other
than trained seeing-eye dogs required to be used by the visually impaired).
No bicycles, motorcycles or other motorized vehicles shall be brought into
the Building.
5. The sidewalks, entrances, passages, corridors, halls, elevators, and
stairways in the Building shall not be obstructed by Tenant or used for any
purposes other than those for which same were intended as ingress and
egress. No windows, floors or skylights that reflect or admit light into
the Building shall be covered or obstructed by Tenant. Toilets, wash
basins and sinks shall not be used for any purpose other than those for
which they were constructed, and no sweeping, rubbish, or other obstructing
or improper substances shall be thrown therein. Any damage resulting to
them, or to heating apparatus, from misuse by Tenant or its employees,
shall be borne by Tenant.
6. No additional lock, latch or bolt of any kind shall be placed upon any door
nor shall any changes be made in existing locks without written consent of
Landlord and Tenant shall in each such case furnish Landlord with a key for
any such lock. At the termination of the Lease, Tenant shall return to
Landlord all keys furnished to Tenant by Landlord, or otherwise procured by
Tenant, and in the event of loss of
-2-
any keys so furnished, Tenant shall pay to Landlord the cost thereof.
7. Landlord shall have the right to prescribe the weight, position and manner
of installation of heavy articles such as safes, machines and other
equipment brought into the Building. No safes, furniture, boxes, large
parcels or other kind of freight shall be taken to or from the Demised
Premises or allowed in any elevator, hall or corridor except at times
allowed by Landlord. In no event shall any weight be placed upon any floor
by Tenant so as to exceed the design conditions of the floors at the
applicable locations.
8. Tenant shall not cause or permit any gases, liquids or odors to be produced
upon or permeate from the Demised Premises, and, except in the case of
normal and customary medical supplies, no flammable, combustible or
explosive fluid, chemical or substance shall be brought into the Building.
9. Landlord may implement an electronic cipher lock access security system to
control access during times other than the Building Operating Hours.
Landlord shall not be liable for excluding any person from the Building
during such other times, or for admission of any person to the Building at
any time, or for damages or loss for theft resulting therefrom to any
person, including Tenant.
10. Unless agreed to in writing by Landlord, Tenant shall not employ any person
other than Landlord's contractors for the purpose of cleaning and taking
care of the Demised Premises. Cleaning service will not be furnished on
nights with respect to rooms occupied after 6:30 p.m., unless, by agreement
in writing, service is extended to a later hour for specifically designated
rooms. Landlord shall not be responsible for any loss, theft, mysterious
disappearance of or damage to, any property, however occurring.
11. No connection shall be made to the electric wires or gas or electric
fixtures, without the consent in writing on each occasion of Landlord. All
glass, locks and trimmings in or upon the doors and windows of the Demised
Premises shall be kept whole and in good repair. Tenant shall not injure,
overload or deface the Building, the woodwork or the walls of the Demised
Premises, nor permit upon the Demised Premises any noisome, noxious, noisy
or offensive business.
12. Any wiring for telephone service must be approved by Landlord, and no
boring or cutting for wiring shall be done unless approved by Landlord or
its representatives, as stated.
13. Tenant and its employees and invitees shall observe and obey all parking
and traffic regulations as imposed by Landlord. All vehicles shall be
parked only in areas designated for vehicle parking by Landlord.
14. Canvassing, peddling, soliciting and distribution of handbills or any other
written materials in the Building are prohibited, and Tenant shall
cooperate to prevent the same.
15. Landlord shall have the right to change the street address of the Building,
provided that Landlord shall give Tenant not less than 180 days' prior
notice of the change, unless the change is required by governmental
authority. If Tenant occupies 50% or less of the Rentable Floor Area of
the Building, Landlord shall have the right to change the name of the
Building.
16. Landlord may waive any one or more of these Rules and Regulations for the
benefit of any particular lessee, but no such waiver by Landlord shall be
construed as a waiver of such Rules and Regulations in favor of any other
lessee, nor prevent Landlord from thereafter enforcing any such Rules and
Regulations against any or all of the other lessees of the Building.
17. These Rules and Regulations are supplemental to, and shall not be construed
to in any way modify or
amend, in whole or in part, the terms, covenants, agreements and conditions
of any lease of any premises in the Building.
18. Landlord reserves the right upon fifteen (15) days' prior written notice to
Tenant to make such other and reasonable Rules and Regulations as in its
judgment may from time to time be needed for the safety, care and
cleanliness of the Building and the Land, and for the preservation of good
order therein.
-3-
EXHIBIT "A"
-----------
LEGAL DESCRIPTION
EXHIBIT "B"
-----------
FLOOR PLAN
All of the Second, Third and Fourth Floors and such portion of the First Floor
as is marked on the accompanying floor plans.
35
EXHIBIT "C"
-----------
SUPPLEMENTAL NOTICE
Re: Lease dated as of _________, 1999, by and between _______________, as
Landlord, and ___________________________, as Tenant.
Dear Sirs:
Pursuant to Article 3 of the captioned Lease, please be advised as follows:
1. The Rental Commencement Date is the _____ day of _____________, 1999,
and the expiration date of the Lease Term is the _____ day of _____________,
20___, subject however to the terms and provisions of the Lease.
2. The Rentable Floor Area of the Demised Premises is ____________ square
feet.
3. Terms denoted herein by initial capitalization shall have the meanings
ascribed thereto in the Lease.
"LANDLORD":
▇▇▇▇▇ REIT, LLC - VA I,
a Georgia limited liability company
By: ▇▇▇▇▇ Operating Partnership, L.P.,
a Delaware limited partnership,
sole member
By: ▇▇▇▇▇ Real Estate Investment
Trust, Inc., a Maryland
corporation, General Partner
By: ▇▇▇▇▇ Capital, Inc., a
Georgia corporation,
General Partner
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇, III
--------------------------
▇▇▇ ▇. ▇▇▇▇▇, III,
President
[CORPORATE SEAL]
36
EXHIBIT "D"
-----------
CONSTRUCTION OBLIGATIONS
1. DEFINITIONS.
-----------
(a) Base Building Plans. The term "Base Building Plans" shall mean
-------------------
the plans and specifications developed by Landlord's architects and engineers
and used to build the Building to achieve the Base Building Condition (as
hereinafter defined). The Base Building Plans shall be evolutionary of and
consistent with the preliminary plans identified on Exhibit "D-1" attached
---
hereto and by reference made a part hereof.
(b) Base Building Condition. The term "Base Building Condition"
-----------------------
shall mean the condition when the following improvements have been completed,
constructed, and, except for Base Building Ceiling Systems, are installed and
are operational:
(1) Exterior walls and glass windows and frames installed. Building
perimeters will be fully finished as relates to water proofing, caulking,
glazing and metal finishing.
(2) Unfinished interior of exterior walls on each floor of the Demised
Premises (with wallboard portion of exterior walls taped and finished ready
for surface treatment).
(3) Concrete slab (level to 1/4" in 10') broom cleaned. Finished surfaces
to be ready to receive carpet, ceramic tile, resilient tile, wood parquet
or stone flooring.
(4) Men's and ladies' bathroom facilities, with Building Standard doors,
lighting fixtures, and finishes located on each floor of the Building on
which any portions of the Demised Premises are located.
(5) One (1) Building Standard drinking fountain for each floor of the
Building.
(6) Fire valve cabinets and/or fire extinguisher cabinets (including all
hoses, extinguishers and the like) as required by codes for open floor
occupancy, installed in stairways or core. Sprinklers and smoke and fire
detection system installed.
(7) Building fire stairs installed, finished and painted, with surrounding
walls installed and with Building Standard doors for such stairwells
installed.
(8) Building core installed, with walls installed, taped, sanded and
floated.
(9) Building Standard electrical and telephone distribution rooms and
janitorial closets constructed in accordance with the Base Building Plans,
together with doors for such rooms and closets installed, and including
telephone and data main service entry conduit and vertical sleeves and
duplex outlets in electrical and telephone/data closets.
(10) Building Standard electrical panels in the core electrical closet on
each floor (ready for Tenant's electrical connections) sufficient to supply
the quantities of electrical power described in the Building Standard
Services set forth in Exhibit "E" of this Lease.
-----------
(11) Base Building air conditioning system, including diffusers and
returns, capable of maintaining (i) 76 degrees F.D.B. at 50% R.H. +/- 5%
automatic control in summer based on the local 2-1/2%
37
outdoor design condition as specified in the "ASHRAE Handbook of
Fundamentals" and (ii) 72 degrees F.D.B. at 30% R.H. minimum in winter
based on the local 97.5 outdoor design condition as specified in the latest
edition of "ASHRAE Handbook of Fundamentals". Air conditioning design basis
is 7.0 ▇▇▇▇▇ per rentable square foot lighting and power load, based upon
an occupancy rate of one (1) person per 100 rentable square feet and
venetian blinds drawn with slats tilted against the sun at not less than 45
degrees from horizontal.
(12) Building Standard air handling unit(s) installed in the mechanical
room on each floor. HVAC main trunk duct work from the fan room to the core
walls installed, HVAC ducts and VAV boxes, together with VAV boxes and PIUs
for upstream ductwork interior zones and VAV boxes for upstream ductwork
perimeter zones, installed.
(13) One (1) sanitary sewer and vent location per floor in the core area
for Tenant's connection in accordance with the Base Building Plans.
(14) One (1) domestic cold water supply connection per floor located in
the core area in accordance with the Base Building Plans, together with wet
columns, for future plumbing on each wing of each floor.
(15) Building Standard sprinkler risers and main loop installed on each
floor of the Building, together with Building Standard sprinkler heads
(semi recessed chrome pendants) installed in accordance with Landlord's
standard grid pattern.
(16) All gypboard cladding around the core, all columns and perimeter
▇▇▇▇▇.
(17) Building Standard blinds for all exterior window openings.
(18) The parking facilities, driveways, and all entrances and exits are
complete so as to allow beneficial use thereof.
(19) All general exhaust requirements completed in accordance with the
Base Building Plans.
(20) All exterior landscaping and plaza work, except for landscaping not
yet completed due to seasonal conditions.
(21) Building Standard 2x4, 3 tube, recessed deep cell parabolic
fluorescent fixtures, with one (1) fixture per 85 usable square feet.
(22) Building Standard blinds installed on all exterior windows.
(23) Complete finish of Building lobby, including security access,
elevators and building direction signs. Complete finish of monument sign at
street entrance and all common areas within the Building, including
elevator lobbies and common corridors.
(24) Full DCC Controls, including Energy Management and lighting controls.
(25) All thermostats.
(26) Identification signage for mechanical and electrical closets,
stairwells, toilet rooms and mechanical and electrical components.
38
(27) Loading dock.
(28) Full height demising walls between tenant space and public corridors
finished and painted.
(29) Keypad access at front and rear doors.
(30) All light fixtures, exit light fixtures and emergency circuits
installed in the common areas of the Building and Project. The installation
of those exit light fixtures, exit signs and emergency circuits which would
be required on each floor if each floor had no interior partitions.
(31) Building Standard ceiling grid and ceiling tile for the Demised
Premises.
(32) Building Standard Doors at 8' 0' with welded frames and ADA compliant
hardware installed in all mechanical rooms, electrical rooms, telephone
rooms, restrooms, janitors closets and similar architectural openings, as
required.
(33) In addition to the foregoing, Base Building Condition includes such
construction and installations to the core of the Building, the exterior of
the Building, the shell of the Building, the common areas of the Building
and Project, and the non-tenant rentable areas as are necessary for the
issuance of a Certificate of Occupancy for the Building.
Except where installation (or "installed") is expressly specified in the
foregoing provisions of this Paragraph 1(b), Base Building Condition does not
include the installation in the Demised Premises of the ceiling grid and ceiling
tile or the installation in the ceiling of the HVAC, lighting, and electrical
systems (the ceiling grid and ceiling tile and the ceiling HVAC, lighting and
electrical systems are collectively referred to as the "Base Building Ceiling
Systems") set forth above as part of Base Building Condition. Landlord shall
provide at Landlord's cost, but not install, the Base Building Ceiling Systems,
and the costs incurred by or on behalf of Tenant to install the Base Building
Ceiling Systems in the ceiling shall be included within the costs of the Layout
Work for purposes of paying the Construction Allowance and Tenant's obligation
to pay costs of the Layout Work in excess of the Construction Allowance.
(c) Base Building Work. The term "Base Building Work" shall mean the work
required to complete the improvements on the Land to Base Building Condition.
(d) Building Standard. The term "Building Standard" shall mean the
standard of all material, finishes and workmanship established by Landlord for
the Building. All such materials, finishes and workmanship shall be consistent
with the first-class nature of the Project, and consistent with the standards
set forth on Exhibit "D-3" attached hereto, and in accordance with all
applicable codes, regulations, and statutes.
(e) Plans and Specifications. The term "Plans and Specifications" shall
------------------------
mean the working drawings and specifications for the construction of the Layout
Work in the Demised Premises, which working drawings and specifications will be
prepared as set forth below. The Plans and Specifications shall include, without
limitation, complete, detailed architectural drawings and specifications for
Tenant's partition layout, reflected ceiling and other installations, and
complete mechanical and electrical plans and specifications for installation of
supplemental air conditioning systems, fire protection and electrical systems.
Tenant, at Tenant's sole cost and expense (subject to the reimbursement
obligation of Landlord hereinafter set forth), shall cause the proposed Plans
and Specifications to be prepared by Tenant's architect and/or designer. All
such proposed Plans and Specifications are expressly subject to Landlord's
approval and shall comply with all applicable laws, rules and regulations.
Tenant covenants and agrees to cause the proposed Plans and Specifications to be
delivered to Landlord on or before October 15, 1999, and, upon approval by
Landlord, Landlord will cause said plans to be filed, at Tenant's sole cost and
expense, with the appropriate governmental agencies in such form
39
(building notice, alteration or other form) as Landlord may direct. In the event
of any disapproval by Landlord of the proposed Plans and Specifications, Tenant
shall, within fifteen (15) days, have the same revised and resubmitted to
Landlord for Landlord's approval. The proposed Plans and Specifications which
have been approved by Landlord are referred to as the Plans and Specifications.
Within thirty (30) days after the date upon which the Plans and Specifications
were approved by Landlord, Tenant shall submit to Landlord a detailed statement
including paid invoices showing the amounts paid by Tenant for the preparation
of the Plans and Specifications, and Landlord shall pay to Tenant the amounts
shown by such statement, but in no event shall Landlord be obligated to pay
Tenant an amount in excess of $1.00 multiplied by the Rentable Floor Area of the
Demised Premises (the "Design Allowance").
(f) Tenant's Architect. The term "Tenant's Architect" shall mean Ai,
------------------
or such other architect as may be designated by Tenant and approved by Landlord
for the design of the Layout Work and the preparation of plans and
specifications therefor.
(g) Plan Delivery Date. The term "Plan Delivery Date" shall mean
------------------
October 15, 1999.
(h) Layout Work. The term "Layout Work" shall mean all job plant,
-----------
labor, equipment, materials, and appurtenances necessary to fully complete the
construction, finishing, and installation of all of the leasehold improvements
to the portion of the Demised Premises to be initially built-out as shown on the
Plans and Specifications, including without limitation, the following:
(1) HVAC supply diffusers, perimeter diffusing system, perimeter gypboard
soffit, thermostats (labor to install only) and controls throughout the
Demised Premises and all connections to the Base Building systems.
(2) Labor to install the Base Building Ceiling System in the Demised
Premises.
(3) Electrical and telephone:
(i) All light switches.
(ii) All electrical outlets and all conduit and wiring throughout
the Demised Premises for electrical power, including connections to
the Building Standard electrical panels in the core of the Building.
(iii) All telephone outlets, conduit and wiring throughout the
Demised Premises and any necessary connections in the Building core.
(iv) All conduit and wiring for lights throughout the Demised
Premises and connections to Building Standard electrical panels in the
core of the Building, and any increase to the number of Building
Standard panelboards.
(v) Any provision for supplying power to the Demised Premises
beyond the amount required under the Building Standard Services or
circuiting at less than 8 outlets per 15 AMP circuit, including
necessary metering to measure excess electrical usage.
(vi) All exit light fixtures, exit signs and emergency circuits,
except that Base Building Work shall include those fixtures, signs and
circuits which would be required on each floor if each floor had no
interior partitions.
(4) All plumbing work for facilities such as toilets and sinks in the
Demised Premises in addition
40
to the plumbing work, toilets, sinks and related facilities provided in
Base Building Work.
(5) All partitions including finish, and the finish to the inside of the
Building's perimeter walls.
(6) All doors, frames and hardware not included in the Base Building Work.
(7) All floor finish including base.
(8) Any modification to or deviation from the sprinkler system to be
provided by Landlord as part of the Base Building Condition.
(9) Any special construction as shown on the Plans and Specifications
approved by the Landlord.
(10) Tenant's identification sign(s).
(11) Tenant's communication and telephone equipment and installation
thereof.
The Layout Work comprises the completed construction and installation
required to fully complete the leasehold improvements required by or shown
on the Plans and Specifications (including any amendments, additions, or
changes to said Plans and Specifications) and includes all labor and
services necessary to timely and fully produce such construction and
installation, and all materials and equipment incorporated, or to be
incorporated, in such construction or installation (including any labor,
materials, or services furnished pursuant to any change orders or in
accordance with any other changes, modifications, or additions to
construction). The Layout Work shall be performed by Landlord's contractors
as provided in Paragraph 5 below.
(i) Substantial Completion. The term "Substantial Completion" shall
----------------------
mean the earlier of (i) the date when all of the Base Building Work and Layout
Work shall have been completed, except for Punch List Items, or (ii) the date
when the Base Building Work and Layout Work would have been so completed to such
an extent but for delays caused by Tenant.
(j) Punch List Items. The term "Punch List Items" shall mean details
----------------
of construction, decoration and mechanical adjustment which, in the aggregate,
are minor in character and do not interfere with Tenant's use or enjoyment of
the Demised Premises.
2. BASE BUILDING WORK.
------------------
Landlord agrees to pursue the Base Building Work with due diligence and
continuity so as to cause Substantial Completion to occur as soon as practicable
under the circumstances, with a goal of achieving Substantial Completion on or
before April 1, 2000 (subject to force majeure and subject to delays caused by
Tenant).
3. PLANS AND SPECIFICATIONS.
------------------------
Tenant shall cause the Plans and Specifications to be prepared by
Tenant's Architect and delivered to Landlord on or before the Plan Delivery
Date.
4. CONSTRUCTION ALLOWANCE.
----------------------
Tenant shall be responsible for the payment of all costs of the Layout
Work to the extent such costs exceed the Construction Allowance provided by
Landlord. Landlord will provide the Construction
41
Allowance described in Article 1(l) of this Lease, and Tenant shall receive a
credit for the Construction Allowance as provided in Paragraph 5(c) below.
5. PERFORMANCE OF LAYOUT WORK BY LANDLORD'S CONTRACTORS. The performance
----------------------------------------------------
of the Layout Work shall be governed by this Paragraph 5.
(a) Performance by Landlord. Landlord shall, through Landlord's
-----------------------
contractors, construct and install the Layout Work in a first-class manner
in accordance with first-class construction standards. Tenant shall pay
Landlord or Landlord's designee, as part of the cost of the Layout Work, a
fee in the amount of $64,000.00 for Landlord's coordination and management
of the construction and installation of the Layout Work. Landlord shall be
obligated diligently to manage and coordinate the construction and
installation of the Layout Work so that the Layout Work shall be
substantially completed on a reasonable construction schedule, unless
completion of the Layout Work is prevented by reason of delays caused by
Tenant. Landlord shall cause its general contractor to obtain bids for the
major portions of the Layout Work (e.g., HVAC and electrical) from
reputable, bondable and qualified subcontractors selected by such general
contractor and approved by Tenant and Tenant's Architect (Tenant agrees
that such approval shall not be unreasonably withheld, conditioned or
delayed). With respect to such contracts to which the sentence immediately
preceding this sentence applies, notwithstanding that the general
contractor shall be entitled to accept whichever bid the general contractor
determines, there shall be included in the costs of the Layout Work for
purposes of this Exhibit "D" only the costs which would have been incurred
if the general contractor had chosen the lowest bid complying with all of
the bid requirements from one of the qualified subcontractors.
(b) Coordination Services. Tenant acknowledges that Landlord will not
---------------------
act a general contractor for the Layout Work, and the manner in which
Landlord will coordinate and supervise the construction of the Layout Work
is described on Exhibit "D-2" attached hereto.
(c) Payment of Costs of Layout Work. Tenant shall be responsible for
-------------------------------
all costs of the Layout Work in accordance with the Plans and
Specifications, to the extent such costs exceed the Construction Allowance.
Periodically after commencement of construction of the Layout Work, but not
more frequently than monthly, Landlord shall submit to Tenant a billing for
that portion of the costs of the Layout Work payable to the date of such
billing. There shall be a credit against Tenant's obligation under each
billing for the Construction Allowance, which credit shall be the lesser of
(x) the product of (i) the quotient of the Construction Allowance divided
by the total estimated cost of the Layout Work, times (ii) the amount of
the billing in question, and (y) the unpaid Construction Allowance. Final
adjustment of the credit for such Construction Allowance shall be made in
connection with the final payment by Tenant to Landlord of the costs of
such Layout Work. Tenant's failure to promptly pay any such billing within
ten (10) days after receipt of such billing shall be deemed authorization
for Landlord to instruct the contractor constructing and installing the
Layout Work to stop work until such payment is made, together with any
accrued interest and late fees attributable thereto. The payments due by
Tenant to Landlord for costs of the Layout Work shall be deemed Additional
Rental under this Lease. In the event that upon final completion of the
Layout Work, there remains any unused Construction Allowance, then, at the
option of Tenant, to be exercised by written notice to Landlord on or
before the date sixty (60) days after the Rental Commencement Date, either
(a) the unused Construction Allowance shall be credited dollar for dollar
against Base Rental payments as they come due, or (b) Tenant shall submit
to Landlord, on or before the date sixty (60) days after the Rental
Commencement Date, a detailed statement including paid invoices showing the
amounts paid by Tenant for relocation expenses (unreimbursed under, and not
the subject of a reimbursement request under, Special Stipulation 9 of this
Lease) or systems furniture installed in the Demised Premises, and Landlord
shall pay to Tenant the amounts shown by such statement (and not previously
paid by Landlord to Tenant), but in no event shall the aggregate of all
such payments by Landlord to Tenant exceed the unused Construction
Allowance.
42
6. CONSENT OF LANDLORD.
-------------------
Any approval or consent by Landlord of any of Tenant's plans,
specifications, or other items to be submitted by Tenant to and/or reviewed by
Landlord pursuant to this Exhibit "D" shall be deemed to be strictly limited to
an acknowledgement of approval or consent by Landlord thereto and such approval
or consent shall not constitute an assumption by Landlord of any responsibility
for the accuracy, sufficiency or feasibility of any plans, specifications or
other such items and shall not imply any representation, acknowledgement or
warranty by Landlord that the design is safe, feasible or structurally sound or
will comply with any legal or governmental requirements. Landlord's approval or
consent shall be deemed to have been withheld unreasonably if it was withheld
for any reason other than (i) non-compliance of Tenant's Plans and
Specifications with governmental requirements, (ii) Tenant's Plans and
Specifications will materially, adversely affect the structure or systems of the
Building or the first class nature of the Project, (iii) the work required by
such Tenant's Plans and Specifications would cause a delay in the completion of
the Base Building Work, or (iv) Landlord's reasonable objections to the
appearance of the improvements which will be visible from the exterior of the
Building.
43
EXHIBIT "D-1"
-------------
PLANS AND SPECIFICATIONS
44
EXHIBIT "D-2"
-------------
COORDINATION OF LAYOUT WORK BY LANDLORD
Landlord will provide the following services:
1. Meet with Tenant and Tenant's Architect to determine Tenant's work
requirements, design package and plans, which include, but are not
limited to:
(a) Floor Plan
(b) Reflected Ceiling Plans
(c) Architectural Details
(d) Electrical
(e) Mechanical/Plumbing
2. Review the architectural and engineering plans, drawings, and
specifications, and advise and make recommendations to Tenant and
Tenant's Architect with respect to such factors as construction
feasibility, possible economies, availability of materials and labor,
time requirements for procurement and construction, and projected
costs. Assist in the coordination of all sections of the drawings and
specifications, without, however, assuming any of Tenant's Architect's
responsibilities for design.
3. Consult with, advise, assist and make recommendations to Tenant and
Tenant's Architect on all aspects of planning for the construction of
Tenant improvements.
4. Make recommendations to Tenant and Tenant's Architect regarding the
division of work in the Plans and Specifications to facilitate the
awarding of trade contracts, taking into consideration such factors as
time of performance, availability of labor, overlapping trade
jurisdictions, provisions for temporary facilities, etc.
5. Review Plans and Specifications with Tenant's Architect to eliminate
areas of conflict and overlapping in the work to be performed by the
various trade contractors.
6. Recommend for purchase and expedite the procurement of long-lead items
to insure their delivery by the required dates.
7. After receiving final construction drawings, proceed to secure
competitive bids, as follows:
(a) Evaluate all bidders as to their acceptability prior to being
asked to bid each job and advise Tenant of this evaluation.
(b) Invite a minimum of three (3) competitive bids from each of the
following trades:
(1) Architectural Work - including partitions, doors, hardware,
carpentry work (excluding fine millwork), painting, wall
covering, ceiling, sprinkler, plumbing, general condition,
etc.
(2) Fine Millwork
(3) All Electrical
(4) All Mechanical
(5) All Floor Coverings
45
(6) All other trades designated by Tenant or Tenant's Architect
as requiring competitive bids.
(c) Issue complete copies of all construction drawings, with all
specifications necessary for the contractor to give a detailed
statement of cost to complete the project.
(d) Deviation from the three bid procedure may be taken at Tenant's
request.
8. Establish a construction schedule for Tenant's review and reasonable
approval, which approval Tenant shall be deemed to have given if
Tenant does not notify Landlord of any objections within five (5)
business days of Tenant's receipt thereof from Landlord. Closely
monitor the schedule during the construction phase and be responsible
for providing all parties with periodic reports as to the status of
the work with respect to the construction schedule.
9. Coordinate the work of all trades as well as the architects and
engineers, including without limitation relocation of sprinkler heads
and relocation of HVAC supply and returns. (Landlord in this instance
is providing services normally provided by a general contractor).
10. Provide a competent project manager to coordinate and provide general
direction of the work and the trade contractors.
11. Establish on-site organization, lines of authority, and procedures for
coordination among Tenant, Tenant's Architect, consultants, and
engineers, Tenant's contractors and subcontractors, Landlord's project
contractor and subcontractors, and Landlord's architect, consultants,
and engineers with respect to the Layout Work and implement such
procedures.
12. In cooperation with Tenant's Architect, establish and implement
procedures to be followed for expediting and processing all shop
drawings, catalogs, and other papers and drawings.
13. Establish effective programs relating to safety, job site records,
labor relations, EEO, and progress reports.
14. Continually review all construction work to ensure quality of work and
contractual terms, and coordinate with Tenant any changes necessary
and/or requested after construction starts.
15. Review and process all applications for payment by trade contractors
and material suppliers.
16. Make recommendations for and process requests for changes in the work
and maintain records of change orders.
17. Prepare a final punchlist after inspection of the Demised Premises in
conjunction with Tenant's Architect and Tenant.
18. Supervise completion of all punchlist items.
Tenant understands that Landlord may not directly employ personnel to carry
out its duties as required above and may perform its duties through a contractor
or developer selected by Landlord, but there will not be any additional cost or
fee to be paid by Tenant.
46
EXHIBIT "D-3"
-------------
MATERIALS STANDARDS
Building Lobby: hard surface finished flooring (e.g., porcelain pavers);
polished stainless steel elevator doors and frames;
2500 lb, 125 fpm elevators; drywall ceilings and wall
sconce lighting; drywall columns and reveals; painted or
stained wood base; and fabric wall panels.
Tenant Office Areas: 2' x 2' 5/8" reveal edge tile at 9'0" AFF; 15/16" ceiling
grid 2' x 2' module; 2 x 4 three tube deep cell parabolic
fluorescent lights with electronic ballast and T8 lamps;
elevator doors and frames at each floor factory primed
steel, center opening.
Toilet Rooms: wet walls to have full height 4" x 4" ceramic tiles of
manufacturer standard colors, borders and field; other walls to
be water resistant gypboard with vinyl wall covering; floors of
2" x 2" unglazed ceramic tile; toilet partitions and privacy
screens with factory plastic laminate; full width mirror over
solid surface lavatory tops with recessed stainless accessories.
HVAC: Trane, Carrier, or equal.
Elevators: 2 x 3500 lb hydraulic passenger elevators; 1 x 4500 lb freight
elevator; Dover or equal.
Miscellaneous: Window blinds, horizontal 1" mini style; full height doors and
welded frames for Base Building doors.
47
EXHIBIT "E"
-----------
BUILDING STANDARD SERVICES
Landlord shall furnish the following services to Tenant during the Lease
Term (the "Building Standard Services"):
(a) Common-use restrooms (with cold and tempered domestic water) and
toilets at the locations provided for in the Base Building Plans.
(b) Subject to curtailment as required by governmental laws, rules or
mandatory regulations and subject to the design conditions set forth in
paragraph 1(b)(11) of Exhibit "D" attached hereto, central heat and air
-----------
conditioning in season, at such temperatures and in such amounts as are in
keeping with the standards of Class "A" suburban multi-tenant office buildings
comparable to the Building in the metropolitan Richmond, Virginia area. Such
heating and air conditioning shall be furnished between 7:00 a.m. and 6:00 p.m.
on weekdays (from Monday through Friday, inclusive) and between 8:00 a.m. and
1:00 p.m. on Saturdays, all exclusive of Holidays, as defined below (the
"Building Operating Hours").
Upon one (1) day's prior notice by Tenant given during Building Operating
Hours, Landlord will furnish such air conditioning and heating at other times
(that is, other than the times specified above), in which case Tenant shall
reimburse Landlord for all costs of such heating and air conditioning during
days and times other than the Building Operating Hours. Any sums due hereunder
from Tenant shall be paid by Tenant to Landlord together with the installment of
Base Rental which is due next following receipt by Tenant of a billing from
Landlord for such sums.
(c) Electric lighting service for all public areas and special service
areas of the Building in the manner and to the extent reasonably deemed by
Landlord to be in keeping with the standards of Class "A" suburban multi-tenant
office buildings comparable to the Building in the metropolitan Richmond,
Virginia area.
(d) Janitor service shall be provided five (5) days per week, exclusive of
Holidays (as hereinbelow defined), in a manner that Landlord reasonably deems to
be consistent with the standards of Class "A" suburban multi-tenant office
buildings comparable to the Building in the metropolitan Richmond, Virginia
area, and in accordance with the standards set forth on Exhibit "E-1" attached
-------------
hereto. In the event any special cleaning services are required for special non-
office space (and which are not required for office space), any incremental cost
of providing such special cleaning services shall be borne solely by Tenant, and
shall be paid by Tenant to Landlord as additional rent.
(e) Sufficient electrical capacity to operate lights, typewriters,
calculating machines, photocopying machines, personal computers and other
machines of the same low voltage electrical consumption.
Should Tenant's total rated electrical design load exceed 7.0 ▇▇▇▇▇ per
rentable square foot lighting and power load, or if Tenant's electrical design
requires low voltage or high voltage circuits in excess of Tenant's share of the
Building Standard circuits, Landlord will (at Tenant's expense) install such
additional circuits and associated high voltage panels and/or additional low
voltage panels with associated transformers (which additional circuits, panels
and transformers shall be hereinafter referred to as the "Additional Electrical
Equipment"). If the Additional Electrical Equipment is installed because
Tenant's low or high voltage rated electrical design load exceeds the applicable
Building Standard rated electrical design load, then a meter shall also be added
(at Tenant's expense) to measure the electricity used through the Additional
Electrical Equipment.
48
The design and installation of any Additional Electrical Equipment (or any
related meter) required by Tenant shall be subject to the prior approval of
Landlord (which approval shall not be unreasonably withheld). All expenses
incurred by Landlord in connection with the review and approval of any
Additional Electrical Equipment shall also be reimbursed to Landlord by Tenant.
Tenant shall also pay on demand the actual metered cost of electricity consumed
through the Additional Electrical Equipment (if applicable), plus any actual
accounting expenses incurred by Landlord in connection with the metering
thereof.
If any of Tenant's electrical equipment requires conditioned air in excess
of Building Standard air conditioning, the same shall be installed by Landlord
(on Tenant's behalf), and Tenant shall pay all design, installation, metering
and operating costs relating thereto.
If Tenant requires that certain areas within Tenant's Demised Premises must
operate in excess of the normal Building Operating Hours (as hereinabove
defined), the electrical service to such areas shall be separately circuited and
metered (at Tenant's expense) such that Tenant shall be billed the costs
associated with electricity consumed during hours other than Building Operating
Hours.
(f) All Building Standard fluorescent bulb replacement in all areas and
all incandescent bulb replacement in public areas, toilet and restroom areas,
and stairwells.
To the extent the services described above require electricity and water
supplied by public utilities, Landlord's covenants thereunder shall only impose
on Landlord the obligation to use its reasonable efforts to cause the applicable
public utilities to furnish same. Except for deliberate and willful acts of
Landlord, failure by Landlord to furnish the services described herein, or any
cessation thereof, shall not render Landlord liable for damages to either person
or property, nor be construed as an eviction of Tenant, nor work an abatement of
rent, nor relieve Tenant from fulfillment of any covenant or agreement hereof.
In addition to the foregoing, should any of the equipment or machinery, for any
cause, fail to operate, or function properly, Tenant shall have no claim for
rebate of rent or damages on account of an interruption in service occasioned
thereby or resulting therefrom; provided, however, Landlord agrees to use
reasonable efforts to promptly repair said equipment or machinery and to restore
said services during normal business hours.
The following dates shall constitute "Holidays" as that term is used in
this Lease: New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day, Christmas, and any other holiday generally recognized as such
by landlords of office space in the Richmond, Virginia office market, as
determined by Landlord in good faith. If in the case of any specific holiday
mentioned in the preceding sentence, a different day shall be observed than the
respective day mentioned, then that day which constitutes the day observed by
national banks in Richmond, Virginia on account of said holiday shall constitute
the Holiday under this Lease.
49
EXHIBIT "F"
-----------
Special Stipulations
1. EXTENSION OPTIONS.
(a) Tenant is hereby granted options to extend the Lease Term for two (2)
successive additional periods of three (3) years each (each such additional
period being herein referred to as an "Extended Term") by giving written notice
of such extension to Landlord at least twelve (12) months prior to the
expiration of the initial Lease Term or the then current Extended Term, as the
case may be. Tenant shall have the right to exercise these options to extend
provided that on the date of such exercise no default or event of default under
this Lease then exists. Each Extended Term shall be upon all of the same terms,
covenants and conditions of this Lease then applicable except that the Base
Rental Rate during the Extended Terms shall be the "Market Rate" (as hereinafter
defined), and except that after the exercise of the option for the first
Extended Term, Tenant shall have only one (1) option to extend, and after the
exercise of the option for the second Extended Term, Tenant shall have no
further options to extend the Lease Term. The term "Lease Term" as used in this
Lease shall mean the initial Lease Term and any Extended Term which may become
effective. For purposes of this Special Stipulation, "Market Rate" shall mean
the annual effective rental rate per square foot of rentable floor area then
being charged by landlords under new leases of office space in that portion of
the metropolitan Richmond, Virginia market that is located south of the ▇▇▇▇▇
------------------
River and west of I-95 for space similar to the Demised Premises in a building
of comparable quality and with comparable parking and other amenities. In
determining the Market Rate, Landlord and Tenant (and any appraisers, if
applicable) shall take into account the fact that Tenant shall pay Tenant's
share of the Operating Expenses. Also, in determining the Market Rental Rate,
Landlord and Tenant (and any appraisers, if applicable) shall compare actual
rental rates only (after making appropriate adjustments resulting from the
foregoing facts) and shall take into consideration any discounts, allowances,
free rent, remodeling credits, construction allowances and other concessions and
inducements granted by other landlords.
(b) Tenant may not assign the options to extend under Special Stipulation
1(a) to any subtenant of the Demised Premises or any assignee of this Lease
other than the Joint Venture or an "Affiliate" (as hereinafter defined), nor may
any such subtenant or assignee other than an Affiliate or the Joint Venture
exercise the options to extend. "Affiliate" shall mean an entity which is more
than fifty percent (50%) owned, directly or indirectly, by Tenant, or an entity
which directly or indirectly owns more than fifty percent (50%) of Tenant, or an
entity which is more than fifty percent (50%) owned, directly or indirectly, by
an entity which itself owns, directly or indirectly, more than fifty percent
(50%) of Tenant.
(c) In the event Landlord and Tenant are unable to agree on the Market
Rate for the Demised Premises on or before the first day of the applicable
Extended Term, then, within ten (10) days after that date, each party shall
appoint and employ, at its cost, a real estate appraiser [who shall be a member
of the American Institute of Real Estate Appraisers (MAI) or be a Counselor of
Real Estate (a member of the American Society of Real Estate Counsellors) and
who shall have at least ten (10) years of full-time commercial appraisal
experience in the Richmond area and who is not affiliated with either party
hereto] to appraise and establish the Market Rate for the Demised Premises. The
two appraisers, thus appointed, shall meet promptly and attempt to agree on such
rate. In the event one party fails to appoint an appraiser, the other designated
appraiser shall independently determine the Market Rate for the Demised Premises
in accordance herewith. If they are unable to agree within twenty (20) days
after the last of them has been appointed, they shall attempt to agree upon and
designate a third appraiser meeting the qualifications set forth above within
ten (10) days after the last date on which the two appraisers were given to
agree. If they are unable to agree on the third appraiser, either of the
parties, after giving five (5) days notice to the other, may apply to the
presiding judge of the __________ Court of Chesterfield County, Virginia, for
the selection of a third appraiser meeting the qualifications stated above. Each
of the parties shall bear one-half of the cost of the appointment of the third
appraiser, and each of the
50
appraisers shall make a determination of Market Rate for the Demised Premises.
The appraisal that is farthest from the middle appraisal shall be disregarded
and the remaining two appraisals shall be averaged in order to establish such
rate; provided, however, if the low appraisal and/or the high appraisal are
equidistant from the middle appraisal, all three appraisals shall be averaged.
After the Market Rate for the Demised Premises has been established, the
appraisers shall immediately notify the parties in writing and such Market Rate
for the Demised Premises shall be binding upon the parties for the applicable
Extended Term. In the event the Market Rate for the Demised Premises has not
been finally determined by the appraisers prior to the first day of the Extended
Term, Tenant shall pay Base Rental at the rate in effect immediately prior to
the first day of the Extended Term, with appropriate adjustment to be made
within thirty (30) days following conclusion of the determination of Market
Rate.
2. REFUSAL RIGHT
Prior to December 31, 1999, Landlord will not lease any space in the Building
other than to Tenant. "Refusal Period" shall mean the period beginning on
December 31, 1999, and ending on the last day of the third Lease Year. Provided
and on the condition that there is no uncured default of Tenant then existing,
Tenant shall have, during the Refusal Period, a right of refusal (the "Refusal
Right"), subject to and upon the terms and conditions set forth below, to all
remaining rentable space in the Building (other than the Demised Premises) and
designated on Exhibit "G" attached hereto and by reference made a part hereof
-----------
(the "Refusal Space"). "Refusal Space" does not include any space leased by
Tenant pursuant to Special Stipulation 8. Prior to entering into a lease with
any other party of any of the Refusal Space, Landlord shall notify Tenant that
it intends to enter into such lease and the economic terms of such proposed
lease (a "Refusal Notice"). Tenant shall have the right to exercise its Refusal
Right to add the space identified in the Refusal Notice to the Demised Premises
[with such space subject to all the terms and conditions of this Lease,
provided, however, that with respect to such Refusal Space the Base Rental and
other charges, and any allowances (such as but not limited to tenant improvement
allowance, redecoration allowance, furniture allowance, and plan preparation
allowance), shall be solely as set forth in the Refusal Notice (provided,
however, that if the remaining initial Term of this Lease is less than 84 months
at the Rental Commencement Date for such Refusal Space, then all such allowances
shall be multiplied by a fraction, the numerator of which is the number of whole
months remaining in the initial Term of this Lease at the Rental Commencement
Date for such Refusal Space, and the denominator of which is 84)], by giving
notice thereof to Landlord (the "Exercise Notice") within three (3) business
days after the date Tenant receives the Refusal Notice. If Tenant does not so
exercise its Refusal Right within such three (3) business day period, Landlord
shall have the right to lease the Refusal Space identified in the Refusal Notice
free and clear of any further rights of Tenant under this Special Stipulation 2,
except that, after the expiration of any such lease to another party (or if no
such lease is executed within 150 days after the expiration of such three
business day period, then upon the 151st day after the expiration of such three
business day period), such Refusal Space will again become subject to Tenant's
Refusal Right in accordance with the provisions of this Special Stipulation 2;
further provided, that if the effective annual base rental under such proposed
lease is decreased by more than $0.25 per square foot of Rentable Floor Area, or
if the improvement allowance under such proposed lease is increased by more than
$1.00 per square foot of Rentable Floor Area, then, prior to entering into such
proposed lease, Landlord must give a new Refusal Notice with respect thereto. In
the event Tenant exercises its Refusal Right with respect to any Refusal Space,
and the applicable Refusal Notice provides for Landlord to initially construct
the tenant improvements in such Refusal Space, Landlord and Tenant shall proceed
with diligence and continuity to prepare such Refusal Space for Tenant's
occupancy in accordance with the provisions of this Lease applicable to the
initial construction of the Demised Premises, except that the Construction
Allowance per usable square foot of such Refusal Space shall be as set forth in
the applicable Refusal Notice. In the event Tenant exercises a Refusal Right, as
of the date (the "Rental Commencement Date for the applicable Refusal Space")
which, unless otherwise agreed to, is the earlier to occur of (i) the date upon
which Tenant occupies such Refusal Space for the conduct of Tenant's business
(for purposes hereof, Tenant shall not be deemed to be
51
occupying such Refusal Space for the conduct of its business merely by moving
furniture and equipment into such Refusal Space), or (ii) or (ii) the date seven
days after the date upon which Landlord tenders such Refusal Space to Tenant
after substantial completion of construction of such Refusal Space substantially
in accordance with the provisions of this Special Stipulation 2 [provided,
however, that if Landlord is delayed in substantially completing such Refusal
Space as a result of delays due to force majeure (as defined in Article 36 of
this Lease), then the date set forth in item (ii) above shall be the date upon
which, but for such delays, Landlord would have tendered such Refusal Space to
Tenant after substantial completion of construction of such Refusal Space
substantially in accordance with the provisions of this Special Stipulation 2],
or (iii) in the event that the applicable Refusal Notice provides that Tenant is
to construct or cause to be constructed the tenant improvements in such Refusal
Space, the date seven days (or such longer period as is specified in the
applicable Refusal Notice) after the date upon which Landlord tenders such
Refusal Space to Tenant for commencement of construction of the tenant
improvements, the Base Rental and other charges payable hereunder shall be
increased based upon the terms set forth in the applicable Refusal Notice and
the number of square feet of Rentable Floor Area added to the Demised Premises,
and the Demised Premises shall be deemed to include such Refusal Space for the
term applicable thereto as set forth in the applicable Refusal Notice. Such
Refusal Space shall be deemed to be substantially completed upon the occurrence
of all of the following: (I) issuance by the appropriate governmental
authorities of a Certificate of Occupancy for such Refusal Space, and (II)
issuance of a certificate of substantial completion by Landlord's architect in
favor of both Landlord and Tenant certifying that the only remaining items of
incomplete or defective work are items which are typically considered to be
"punch-list" work in connection with comparable construction projects in the
metropolitan Richmond, Virginia, area, and (III) delivery to Tenant of copies of
such certificates referenced in (I) and (II) above. During the course of
construction of the improvements in such Refusal Space to be constructed
pursuant to this Special Stipulation 2, Landlord shall update Tenant during
weekly construction meetings on the status of construction, the anticipated
completion date, and any delays in such construction. In the event Tenant
exercises a Refusal Right during any extension of the Lease Term pursuant to
this Special Stipulation 2, as of the date Landlord gives possession of the
Refusal Space to Tenant, the Base Rental and other charges payable hereunder
shall be increased based upon the number of square feet of Rentable Floor Area
of Refusal Space added to the Demised Premises, and the Demised Premises shall
be deemed to include the Refusal Space. Within ten (10) days after the addition
of any Refusal Space to the Demised Premises, Landlord and Tenant shall enter
into an amendment evidencing the addition, but the failure or refusal of Tenant
to enter into an amendment shall not impair or negate the exercise of the option
or relieve Tenant of any of its obligations with respect to the Refusal Space
added to the Demised Premises.
3. PARKING
(a) The Building shall have a minimum of 495 parking spaces in the parking
area adjacent to the Building. Landlord will provide to Tenant, without charge,
unassigned parking in the parking area adjacent to the Building for the Lease
Term; provided, however, that the total parking available for Tenant without
charge shall be five (5) spaces per one thousand (1000) square feet of Rentable
Floor Area contained in the Demised Premises.
(b) Landlord may make, modify and enforce (by ticketing, towing or
otherwise) reasonable rules and regulations relating to the parking of vehicles
in the parking areas, and Tenant agrees to abide by any such rules and
regulations. Tenant's failure to abide by any such rules and regulations after
written notice by Landlord to Tenant and expiration of any applicable cure
period, if any, shall constitute a default by Tenant under this Lease.
52
4. BUILDING SIGN
So long as Tenant shall occupy forty percent (40%) or more of the Rentable
Floor Area of the Building, Tenant shall have the right to design and designate
the location of one (1) monument-type sign naming the Building. Landlord shall
bear $5,000 of the cost and Tenant any excess cost of purchasing and installing
any monument-type sign. The cost of maintaining, repairing or replacing said
monument-type sign shall be included within Operating Expenses. The monument-
type sign shall be subject to the prior approval of Landlord as to size,
materials and method of lighting and attachment, which approval shall not be
unreasonably withheld. Tenant acknowledges that such sign must also comply
with, and shall be installed only if permitted by, applicable laws and
regulations of governmental authorities, and private restrictive covenants
applicable to the Project. Tenant agrees that Tenant will not unreasonably
withhold its consent to the placement of up to two (2) additional names of
tenants on the monument-type sign. Tenant shall have the right, at Tenant's
sole cost and expense, subject to applicable laws and regulations of
governmental authorities, and private restrictive covenants applicable to the
Project, and subject to the approval by Landlord, which approval shall not be
unreasonably withheld, to install signs on the exterior of the Building [in the
event and for so long as Tenant occupies fifty percent (50%) or more of the
Rentable Floor Area of the Building, Tenant's signs shall be the only signs on
the exterior of the Building (other than directional signs and signs required by
laws, orders, ordinances, rules and regulations)]; all such signs installed by
Tenant shall be maintained by Tenant at Tenant's sole cost and expense. If
Tenant occupies more than 50% of the Rentable Floor Area of the Building, Tenant
shall have the right to name the Building; provided, however, that if Tenant
changes the name of the Building, Tenant will pay all costs associated with
changing the name (including but not limited to all costs and expenses of
changing the name on the Building and on any signs), and shall give Landlord not
less than 180 days' prior notice of the change. The initial name of the
Building shall be "ABB Centre at Waterford".
5. COMMUNICATIONS
(a) Subject to the terms and conditions as described below, Tenant shall
have the right, at Tenant's sole cost and expense, to place on the roof of the
Building a satellite antenna module (the "Antenna") and related hardware and
cabling connected to the Demised Premises. Tenant shall not be charged any rent
or other fees by Landlord in connection with the placement of the Antenna on the
roof. The right of Tenant to install the Antenna is expressly conditioned upon
the Antenna and related hardware and cabling not damaging or interfering with
Landlord's roof warranty, communication devices or building systems or any
antennas and related hardware and cabling which other tenants of the Building
have installed or may install on the roof and Tenant hereby covenants and agrees
that the Antenna and related hardware and cabling will not so interfere.
(b) Tenant shall furnish detailed plans and specifications for the Antenna
and related hardware and cabling to Landlord for Landlord's consent, which
consent shall not be unreasonably withheld or delayed, provided Landlord may
condition its consent by requiring that the Antenna be installed in the least
conspicuous of all acceptable locations on which the Antenna might be located
and that all components and elements thereof (except the terminal devices and
structures) be concealed from view from within and without the Building. Upon
the giving of such consent, the Antenna and related hardware and cabling shall
be installed and maintained, at Tenant's sole cost and expense, by a contractor
selected by Tenant and approved by Landlord, such approval not to be
unreasonably withheld or delayed. In the installation of the Antenna and
related hardware and cabling, Tenant shall comply with all applicable laws,
codes, ordinances and building and zoning rules and regulations and keep the
Demised Premises and Building free and clear from liens arising from or related
to Tenant's installation. Tenant shall consult with Landlord's roofing
contractor to ensure that neither the integrity of the roof of the Building, nor
Landlord's roof warranty, shall be negatively affected by the placement and
installation of the Antenna and the walkway referred to in Special Stipulation
5(d) hereof. Tenant shall be entitled to use such portions of the Building as
may be reasonably necessary for the installation, operation and maintenance of
the Antenna and related hardware and cabling, and Tenant shall have reasonable
53
access to such portions of the Building at all times throughout the Lease Term
for such purposes; provided however, that except for the roof of the Building,
any cables, conduits or other physical connections between the Antenna and the
Demised Premises shall be concealed underground or within permanent walls,
floors, columns and ceilings of the Building and in the shafts of the Building
provided for such installations, not damaging the appearance of the Building or
reducing the usable or rentable space of the Building, and provided further,
that except for the roof and Demised Premises, any installation or maintenance
work performed by Tenant or at Tenant's direction shall be performed without
unreasonably interfering with Landlord's or any other tenant's use of the
Building, and upon completion of such installation and maintenance (initially
and from time to time) Tenant shall restore such portions of the Building to a
condition reasonably comparable to that existing prior to such installation or
maintenance. In addition, Tenant shall paint and maintain the Antenna in the
color designated by Landlord.
(c) Tenant shall be responsible for procuring and paying for all
certificates, licenses, permits or approvals (including but not limited to
approvals under or pursuant to private restrictive covenants applicable to the
Project) which may be required for the installation, operation, use and
maintenance of the Antenna and related hardware and cabling, and Landlord shall
cooperate with Tenant, at Tenant's sole cost and expense, in procuring such
licenses or permits, to the extent required by applicable law and private
restrictive covenants applicable to the Project. Upon receiving a written
request by Landlord, Tenant shall provide Landlord with documentation that
Tenant has obtained all such certificates, licenses, permits and approvals.
Landlord makes no warranties whatsoever as to the permissibility of the Antenna
or systems under applicable laws or private restrictive covenants applicable to
the Project. The Antenna and related hardware and cabling shall be installed,
operated and maintained by Tenant, at Tenant's sole cost and expense, in such a
manner as not to constitute a nuisance, or unreasonably interfere with the
operations of other tenants of the Building or with the normal use of the area
surrounding the Building by occupants thereof.
(d) Tenant shall be responsible for installing and maintaining a walkway
system to the Antenna in order to protect the roof of the Building. Tenant
shall furnish plans and specifications for such walkway to Landlord for
Landlord's consent, which consent shall not be unreasonably withheld or delayed.
(e) Upon termination or expiration of the Lease, Tenant shall, at Tenant's
sole cost and expense, remove the Antenna and related hardware and cabling
installed by it pursuant to this First Amendment and shall repair and restore
the Building to a condition comparable to that existing prior to such
installation, normal wear and tear excepted.
(f) Landlord reserves the right to relocate the Antenna and related
hardware and cabling at Landlord's sole expense, provided such relocation, in
the reasonable opinion of Tenant, shall have no material adverse impact on the
same.
(g) Tenant hereby indemnifies Landlord and agrees to hold Landlord
harmless from and against any and all claims, liability, judgments, damages,
cost and expenses (including reasonable attorney's fees) related to, resulting
from, arising out of or caused by the installation, maintenance, operation or
removal of the Antenna and related hardware and cabling. In addition, Tenant
shall maintain in full force and effect throughout the Lease Term public
liability, property damage, fire and extended coverage insurance in an amount
sufficient to fully protect the Antenna and related hardware and cabling from
fire or other loss or damage, as well as contractual insurance in an amount
sufficient to fully protect Landlord from any loss or damage resulting from,
arising out of or caused by the installation, maintenance, operation or removal
of the Antenna and related hardware and cabling or by the exercise of Tenant's
rights under this Special Stipulation 5.
54
6. LAND ACQUISITION
The parties acknowledge that Landlord has entered into an agreement for the
purchase of the Land, and the obligations of the parties hereto are conditioned
upon the acquisition of the Land by Landlord on or before July 1, 1999. In the
event the Land is not acquired by Landlord on or before July 1, 1999, Tenant may
elect by notice given on or before July 15, 1999, to terminate this Lease.
Landlord shall furnish to Tenant within thirty (30) days following acquisition
of the Land by Landlord a title insurance policy showing good and marketable
title to the Land to be vested in Landlord, and not subject to any restrictions
which would prevent the Demised Premises from being used for business offices.
In the event such title policy does not show fee simple title vested in Landlord
or reflects exceptions which would interfere with the use of the Demised
Premises for business offices, and Tenant gives Landlord written notice (the
"Objection Notice") of such restrictions or failure to show fee simple title
within ten (10) days after Landlord furnished Tenant with such title policy, and
Landlord is unable to cure such matters within thirty (30) days after the
Objection Notice, Tenant shall have the option exercised by written notice (the
"Termination Notice") given on or before the date forty (40) days after the
Objection Notice of terminating this Lease effective as of the date five (5)
days after the date of the Termination Notice.
7. CONTRACTION OPTIONS
(a) Tenant is hereby granted a one time option to terminate this Lease as
of the third anniversary of the Rental Commencement Date as to a portion of the
Demised Premises (the "Year 3 Contraction Space") containing not less than
twelve thousand five hundred square feet of Rentable Floor Area and not more
than thirteen thousand square feet of Rentable Floor Area. The Year 3
Contraction Space must be a currently leased portion of the Demised Premises as
the same existed on December 31, 1999, and must be contiguous space located on a
single floor providing close elevator access. In order to exercise such option
to terminate as to the Year 3 Contraction Space, Tenant must give written notice
to Landlord of the exercise by Tenant of such option to terminate at least seven
(7) months in advance of the third anniversary of the Rental Commencement Date
(and the Lease Term as to the Year 3 Contraction Space shall be deemed to end on
such third anniversary of the Rental Commencement Date); provided, however, that
Tenant may give such written notice to Landlord less than seven months prior to
the third anniversary of the Rental Commencement Date so long as Tenant includes
with such notice payment to Landlord in good funds of an amount (the "Year 3
Notice Penalty"), in addition to and not in lieu of Base Rental and other sums
due under this Lease, equal to (x) the sum of the next due installments of Base
Rental, Tenant's Forecast Additional Rental and Additional Allowance multiplied
by (y) seven reduced by the number of months (to the next lowest whole month) in
advance of the third anniversary Tenant gave Landlord the written notice of
Tenant's exercise of Tenant's option to terminate as to the Year 3 Contraction
Space (failure to include such amount in good funds shall render the purported
notice ineffective), and such notice shall also constitute the agreement by
Tenant to pay to Landlord, in immediately available funds, on or before the date
thirty (30) days prior to the third anniversary of the Rental Commencement Date,
in addition to and not in lieu of any Rent payable under this Lease an amount
equal to the Year 3 Contraction Payment (as hereinafter defined). All Rent for
the Year 3 Contraction Space shall be accounted for as of the termination date.
Tenant shall have the right to exercise this option to terminate provided that
on the date of such exercise no default and no event of default then exists. In
the event Tenant gives such notice of termination, Tenant shall deliver to
Landlord, on or before the date thirty (30) days prior to the third anniversary
of the Rental Commencement Date, a termination fee (which shall be in addition
to and not in lieu of any Rent payable under this Lease with respect to the Year
3 Contraction Space through the end of the Lease Term as shortened by Tenant's
election of such option to terminate and in addition to and not in lieu of any
Rent payable under this Lease through the end of the Lease Term with respect to
the remainder of the Demised Premises) in an amount equal to the "Year 3
Contract Payment" determined as follows: (A) an amount equal to eight times the
sum of the next due installments of Base Rental, Tenant's Forecast Additional
Rental and Additional Allowance Rent, plus (B) the unamortized portions (as of
the end of the 44th month
55
following the Rental Commencement Date) of the Base Improvement Allowance,
Additional Allowance and broker commission, each being amortized in equal
monthly installments of principal and interest over the Initial Term at a rate
of ten percent (10%) per annum. If Tenant fails to pay the Year 3 Contraction
Payment on or before the date thirty days prior to the third anniversary of the
Rental Commencement Date, the Lease shall not be terminated as to the Year 3
Contraction Space, and Landlord shall be entitled to retain any Year 3 Notice
Penalty paid by Tenant.
(b) In the event the Lease was terminated with respect to the Year 3
Contraction Space as provided in (a) above, Tenant is hereby granted a one time
option to terminate this Lease as of the fifth anniversary of the Rental
Commencement Date as to a portion of the Demised Premises (the "Year 5
Contraction Space") containing not less than twelve thousand five hundred square
feet of Rentable Floor Area and not more than thirteen thousand square feet of
Rentable Floor Area. The Year 5 Contraction Space must be a currently leased
portion of the Demised Premises as the same existed on December 31, 1999, and
must be contiguous space located on a single floor providing close elevator
access. In order to exercise such option to terminate as to the Year 5
Contraction Space, Tenant must give written notice to Landlord of the exercise
by Tenant of such option to terminate at least seven (7) months in advance of
the fifth anniversary of the Rental Commencement Date (and the Lease Term as to
the Year 5 Contraction Space shall be deemed to end on such fifth anniversary of
the Rental Commencement Date; provided, however, that Tenant may give such
written notice to Landlord less than seven months prior to the fifth anniversary
of the Rental Commencement Date so long as Tenant includes with such notice
payment to Landlord in good funds of an amount (the "Year 5 Notice Penalty"), in
addition to and not in lieu of Base Rental and other sums due under this Lease,
equal to (x) the sum of the next due installments of Base Rental, Tenant's
Forecast Additional Rental and Additional Allowance multiplied by (y) seven
reduced by the number of months (to the next lowest whole month) in advance of
the fifth anniversary Tenant gave Landlord the written notice of Tenant's
exercise of Tenant's option to terminate as to the Year 5 Contraction Space
(failure to include such amount in good funds shall render the purported notice
ineffective), and such notice shall also constitute the agreement by Tenant to
pay to Landlord, in immediately available funds, on or before the date thirty
(30) days prior to the fifth anniversary of the Rental Commencement Date, in
addition to and not in lieu of any Rent payable under this Lease an amount equal
to the Year 5 Contraction Payment (as hereinafter defined). All Rent for the
Year 5 Contraction Space shall be accounted for as of the termination date.
Tenant shall have the right to exercise this option to terminate provided that
on the date of such exercise no default and no event of default then exists. In
the event Tenant gives such notice of termination, Tenant shall deliver to
Landlord, on or before the date thirty (30) days prior to the fifth anniversary
of the Rental Commencement Date, a termination fee (which shall be in addition
to and not in lieu of any Rent payable under this Lease with respect to the Year
5 Contraction Space through the end of the Lease Term as shortened by Tenant's
election of such option to terminate and in addition to and not in lieu of any
Rent payable under this Lease through the end of the Lease Term with respect to
the remainder of the Demised Premises) in an amount equal to the "Year 5
Contraction Payment" determined as follows: (A) an amount equal to six times the
sum of the next due installments of Base Rental, Tenant's Forecast Additional
Rental and Additional Allowance, plus (B) the unamortized portions (as of the
end of the 66th month following the Rental Commencement Date) of the Base
Improvement Allowance, Additional Allowance and broker commission, each being
amortized in equal monthly installments of principal and interest over the
Initial Term at a rate of ten percent (10%) per annum. If Tenant fails to pay
the Year 5 Contraction Payment on or before the date thirty days prior to the
fifth anniversary of the Rental Commencement Date, the Lease shall not be
terminated as to the Year 5 Contraction Space, and Landlord shall be entitled to
retain any Year 5 Notice Penalty paid by Tenant.
(c) In the event Tenant does not exercise the right to terminate the Lease
with respect to the Year 3 Contraction Space as provided in (a) above, Tenant is
hereby granted a one time option to terminate this Lease as of the fifth
anniversary of the Rental Commencement Date as to a portion of the Demised
Premises (the "Year 5 Termination Space") containing not less than twenty four
thousand five hundred square feet of Rentable Floor Area and not more than
twenty five thousand five hundred square feet of Rentable Floor Area.
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The Year 5 Termination Space must be a currently leased portion of the Demised
Premises as the same existed on December 31, 1999, may be on multiple floors,
but all space on a single floor must be contiguous space containing a minimum of
8,000 square feet of Rentable Floor Area providing close elevator access. In
order to exercise such option to terminate as to the Year 5 Termination Space,
Tenant must give written notice to Landlord of the exercise by Tenant of such
option to terminate at least nine (9) months in advance of the fifth anniversary
of the Rental Commencement Date (and the Lease Term as to the Year 5 Termination
Space shall be deemed to end on such fifth anniversary of the Rental
Commencement Date; provided, however, that Tenant may give such written notice
to Landlord less than nine months prior to the fifth anniversary of the Rental
Commencement Date so long as Tenant includes with such notice payment to
Landlord in good funds of an amount (the "Year 5 Notice Penalty"), in addition
to and not in lieu of Base Rental and other sums due under this Lease, equal to
(x) the sum of the next due installments of Base Rental, Tenant's Forecast
Additional Rental and Additional Allowance multiplied by (y) nine reduced by the
number of months (to the next lowest whole month) in advance of the fifth
anniversary Tenant gave Landlord the written notice of Tenant's exercise of
Tenant's option to terminate as to the Year 5 Termination Space (failure to
include such amount in good funds shall render the purported notice
ineffective), and such notice shall also constitute the agreement by Tenant to
pay to Landlord, in immediately available funds, on or before the date thirty
(30) days prior to the fifth anniversary of the Rental Commencement Date, in
addition to and not in lieu of any Rent payable under this Lease an amount equal
to the Year 5 Termination Payment (as hereinafter defined). All Rent for the
Year 5 Termination Space shall be accounted for as of the termination date.
Tenant shall have the right to exercise this option to terminate provided that
on the date of such exercise no default and no event of default then exists. In
the event Tenant gives such notice of termination, Tenant shall deliver to
Landlord, on or before the date thirty (30) days prior to the fifth anniversary
of the Rental Commencement Date, a termination fee (which shall be in addition
to and not in lieu of any Rent payable under this Lease with respect to the Year
5 Termination Space through the end of the Lease Term as shortened by Tenant's
election of such option to terminate and in addition to and not in lieu of any
Rent payable under this Lease through the end of the Lease Term with respect to
the remainder of the Demised Premises) in an amount equal to the "Year 5
Termination Payment" determined as follows: (A) an amount equal to six times the
sum of the next due installments of Base Rental, Tenant's Forecast Additional
Rental and Additional Allowance, plus (B) the unamortized portions (as of the
end of the 66th month following the Rental Commencement Date) of the Base
Improvement Allowance, Additional Allowance and broker commission, each being
amortized in equal monthly installments of principal and interest over the
Initial Term at a rate of ten percent (10%) per annum. If Tenant fails to pay
the Year 5 Termination Payment on or before the date thirty days prior to the
fifth anniversary of the Rental Commencement Date, the Lease shall not be
terminated as to the Year 5 Termination Space, and Landlord shall be entitled to
retain any Year 5 Notice Penalty paid by Tenant.
8. EXPANSION
Provided and on the condition that there is no uncured default of Tenant
then existing, Tenant shall have, during the period commencing on the date of
this Lease and ending on the expiration of the Refusal Period, the option from
time to time and at any time on or before the expiration of the Refusal Period
to expand the Demised Premises by written notice to Landlord (the "Expansion
Notice") on or before the expiration of the Refusal Period. The space added to
the Demised Premises ("Expansion Space") shall be all or any portion of the
Refusal Space which has not previously been added to the Demised Premises
pursuant to this Special Stipulation 8 or pursuant to Special Stipulation 2;
provided, however, that the portion of the Refusal Space not leased by Tenant
(and not leased to others as permitted by Special Stipulation 2) must constitute
a commercially reasonable leaseable unit as determined by Landlord's architect;
and further provided, however, that the Expansion Space must not include any
space with respect to which Landlord has given Landlord's Notice (as defined in
Special Stipulation 2). The Expansion Notice must identify the applicable
Expansion Space. Tenant shall pay Base Rental for the Expansion Space,
commencing on the Rental Commencement
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Date for the applicable Expansion Space, at the same rate per square foot of
Rentable Floor Area applicable to the remainder of the Demised Premises,
escalated annually at the same time and at the same percentages that such rate
is escalated for the remainder of the Demised Premises. With respect to the
Expansion Space, Tenant shall be obligated to pay Tenant's Forecast Additional
Rental and Tenant's Additional Rental on the same basis as Tenant is obligated
to make such payments with respect to the remainder of the Demised Premises.
Accordingly, as of the Rental Commencement Date for the applicable Expansion
Space, the applicable Expansion Space shall be added to the Demised Premises for
all purposes in determining Tenant's Forecast Additional Rental and Tenant's
Additional Rental. The Construction Allowance and Additional Allowance shall
apply to each such Expansion Space; provided, however, that if the remaining
initial Term of this Lease is less than 84 months at the Rental Commencement
Date for such Expansion Space, then such allowances shall be multiplied by a
fraction, the numerator of which is the number of whole months remaining in the
initial Term of this Lease at the Rental Commencement Date for such Expansion
Space, and the denominator of which is 84. The "Rental Commencement Date for the
applicable Expansion Space" shall mean, unless otherwise agreed to, the earlier
to occur of (i) the date upon which Tenant occupies such Expansion Space for the
conduct of Tenant's business (for purposes hereof, Tenant shall not be deemed to
be occupying such Expansion Space for the conduct of its business merely by
moving furniture and equipment into such Expansion Space), or (ii) the date one
hundred twenty (120) days after the date of the applicable Expansion Notice
[unless the date of such Expansion Notice is prior to December 31, 1999, in
which event the date under this item (ii) shall be the Rental Commencement Date
for the Demised Premises].
9. ADDITIONAL ALLOWANCE: FURNITURE, TELEPHONE, COMPUTER CABLING AND RELOCATION
Upon written request of Tenant made on or before the date thirty (30) days
after the Rental Commencement Date, Landlord shall make available to Tenant an
amount equal to $6.00 multiplied by the Rentable Floor Area of the Demised
Premises (the "Additional Allowance") as of December 31, 1999, to be used solely
for (a) relocation expenses incurred by Tenant in connection with moving into
the Demised Premises (and unreimbursed under, and not the subject of a
reimbursement request under, Paragraph 5 of Exhibit "D" to this Lease), (b) the
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purchase by Tenant of telephone and computer cabling, and modular furniture
installed in the Demised Premises, and (c) the costs of Layout Work in excess of
the Construction Allowance. In the event that Tenant elects to use all or any
portion of the Additional Allowance: (a) on or before the date sixty (60) days
from the Rental Commencement Date, Tenant shall submit to Landlord a detailed
statement including paid invoices showing the amounts paid by Tenant for (a)
relocation expenses incurred by Tenant in connection with moving into the
Demised Premises (and unreimbursed under, and not the subject of a reimbursement
request under, Paragraph 5 of Exhibit "D" to this Lease), (b) the purchase by
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Tenant of telephone and computer cabling, and modular furniture installed in the
Demised Premises, and (c) the costs of Layout Work in excess of the Construction
Allowance, and Landlord shall pay to Tenant the amounts shown by such statement
(and not previously paid by Landlord to Tenant), but in no event shall the
aggregate of all such payments by Landlord to Tenant exceed the Additional
Allowance; and (b) Tenant shall pay to Landlord, in good funds, in monthly
installments on the first of each month, an amount equal to the sum of (x)
$0.0166 multiplied by the First Level Additional Allowance plus (y) $0.0175
multiplied by the Second Level Additional Allowance, and such installments shall
be paid at the same time as installments of Base Rental pursuant to Article 6 of
the Lease (but no commission shall be owed or due or payable to Brokers on
account thereof). "First Level Additional Allowance" shall mean the amount of
the Additional Allowance actually paid by Landlord to Tenant, not in excess of
an amount equal to $4.00 multiplied by the Rentable Floor Area of the Demised
Premises. "Second Level Additional Allowance" shall mean the amount of the
Additional Allowance in excess of the First Level Additional Allowance actually
paid by Landlord to Tenant. Landlord shall at all times have a valid first lien
upon all of the telephone and computer cabling, and modular furniture with
respect to which Tenant has purchased with or received reimbursement from the
Additional Allowance to secure payment of Rent and other sums and charges due
hereunder from Tenant to Landlord and to secure the
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performance by Tenant of each and all of the covenants, warranties, agreements
and conditions hereof. Said telephone and computer cabling, and modular
furniture shall not be removed from the Demised Premises without the consent of
Landlord until all arrearage in Rent and other charges as well as any and all
other sums of money due hereunder shall first have been paid and discharged and
until this Lease and all of the covenants, conditions, agreements and provisions
hereof have been fully performed by Tenant. Tenant shall from time to time
execute any financing statements and other instruments necessary to perfect the
security interest granted herein. The lien herein granted may be foreclosed in
the manner and form provided by law for the foreclosure of security instruments
or chattel mortgages, or in any other manner provided by law. This Lease is
intended as and constitutes a security agreement within the meaning of the
Uniform Commercial Code of the State of Virginia.
10. BASE RENTAL ADJUSTMENT
Landlord and Tenant acknowledge and agree that the $11.95 per square foot of
Rentable Floor Area Base Rental Rate is based on a Project Cost of
$11,036,139.00 (the "Estimate"), a copy of which is attached hereto as Exhibit
-------
"H" and by reference made a part hereof. To the extent that the actual Project
---
Cost is less than the Estimate, then the Base Rent Rate for the First Lease Year
as set forth in Section shall be adjusted as of the Rent Commencement Date to an
amount equal the Project Cost multiplied by .1054 and divided by the number of
square feet of Rentable Floor Area of the Building. To the extent that the
actual Project Cost is greater than the Estimate by virtue of either or both of
the following (a) development decisions made, or consent to in writing, by
Tenant (such as, but not limited to, making the Building exterior granite, or
installing a third elevator), or (b) unknown conditions as of the date of the
Estimate (such as but not limited to rock under the surface of the Land or off-
site improvements required by Chesterfield County or other governmental entity),
then the Base Rent Rate for the First Lease Year as set forth in Section shall
be adjusted as of the Rent Commencement Date to an amount equal the Project Cost
multiplied by .1054 and divided by the number of square feet of Rentable Floor
Area of the Building. "Project Cost" shall mean all the actual costs incurred
by Landlord, in good faith, directly related to the acquisition of the Land and
the design, engineering and construction of the Building (including but not
limited to the Construction Allowance, the Design Allowance, real estate
commissions, the sum of $75,000.00 for holdover costs as defined in Special
Stipulation 11, and the sum of $437,000.00 for allowances and commissions for
the Building other than the initial Demised Premises consisting of 80,000 square
feet of Rentable Area; such $437,000.00 figure is based on allowances of $20.00
per square foot of Rentable Area, a 6% brokerage commission, and the assumption
that the Rentable Floor Area of the Building is 97,000 square feet, if the
Rentable Floor Area of the Building is less than or greater than 97,000 square
feet, the $437,000.00 figure and the Estimate shall be adjusted accordingly).
Notwithstanding the foregoing, the following costs are specifically excluded
from Project Cost: the Additional Allowance, costs attributable to actual delays
in Substantial Completion of the Base Building Work caused by Landlord (except
to the extent caused by Tenant's failure to perform its obligations as and when
required), holdover costs in excess of $75,000.00 and allowances and commissions
in excess of $437,000.00 (as adjusted as set forth above) for the Building other
than the initial Demised Premises consisting of 80,000 square feet of Rentable
Area.
11. HOLDOVER COSTS
If the Demised Premises are not Substantially Complete on or before February 28,
2000, Landlord shall pay Tenant all holdover costs payable by Tenant under
Tenant's current lease at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Existing
Lease") in excess of the rent and other sums which would have been due
thereunder had the Existing Lease continued in effect after February 28, 2000,
on the same terms and conditions (including without limitation rent) in effect
immediately prior to February 28, 2000, for the period from March 1, 2000, to
the date the Demised Premises are Substantially Complete. In no event shall
"holdover costs" include consequential damages or lost business opportunities.
Tenant agrees to use reasonable efforts to minimize the
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holdover costs. In the event the holdover costs paid by Landlord are less than
$75,000.00, then the amount equal to $75,000.00 reduced by such holdover costs
is called the "Holdover Surplus" and at Tenant's option, the Holdover Surplus
shall be applied toward (a) the purchase by Tenant of telephone and computer
cabling, and modular furniture installed in the Demised Premises (to the extent
in excess of the Additional Allowance applied thereto), or (b) the costs of
Layout Work in excess of the sum of the Construction Allowance and the
Additional Allowance applied thereto.
12. CONSEQUENTIAL DAMAGES
Neither Landlord, its agents, servants, employees, any other holder of any deed
to secure debt or mortgage nor the lessor under any superior lease shall be
liable to Tenant, or to Tenant's employees, agents, invitees, licensees,
contractors or visitors, or to any other person, for any consequential damages
of any nature. Neither Tenant, its agents, servants, employees, any other
holder of any deed to secure debt or mortgage nor the lessor under any superior
lease shall be liable to Landlord, or to Landlord's employees, agents, invitees,
licensees, contractors or visitors, or to any other person, for any
consequential damages of any nature.
13. ACCESS
Tenant shall be permitted reasonable access to the Demised Premises as soon as
the Layout Work shall, in Landlord's reasonable opinion, be sufficiently
completed to permit commencement of Tenant's installation of telephone and
computer cabling, modular furniture, fixtures, furnishings and equipment without
undue interference with the completion of the Layout Work and in any event on or
before the date approximately thirty days prior to the date of Substantial
Completion, subject to extension on a day-for-day basis for delays caused by
Tenant. The foregoing license for Tenant to enter the Demised Premises prior to
Substantial Completion is conditioned upon Tenant's contractors and their
laborers working in harmony with, and not materially interfering with, the
Layout Work. Landlord shall not be liable for any injury, loss or damage
occurring to Tenant's installations, as aforesaid, unless such damage is caused
by the gross negligence or willful misconduct of Landlord, its agents, employees
or contractors.
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EXHIBIT "G"
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Refusal Space
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