DEED OF LEASE

 

Exhibit 10.8

 

DEED OF LEASE

 

between

 

VA Branches, LLC

 

Landlord

 

and

 

Saflink Corporation

 

Tenant

 

Dated: November 10 , 2003

 

 

OFFICE BUILDING DEED OF LEASE

TABLE OF CONTENTS

 

i

 

ii

 

EXHIBITS

 

Exhibit A. Floor Plan of Demised Premises [§2(a)]

Exhibit B. Space Plan of Demised Premises [§6(a)]

Exhibit C. Construction Schedule [§6(b)]

Exhibit D. Rules and Regulations [§8]

Exhibit E. Certificate of Commencement [§2(a) and §3(b)]

Exhibit F. Legal Description of Property

Addendum

 

iii

 

Deed of Lease

 

This Deed of Lease (the “Lease”) is made this 10 ^th day of November, 2003, between VA Branches, LLC, a Delaware limited liability company (“Landlord”) and Saflink Corporation, a Delaware corporation (“Tenant”).

 

WITNESSETH:

 

For and in consideration of the covenants herein contained and upon the terms and conditions herein set forth, the parties agree as follows:

 

1. Introductory Provisions .

 

(a) Fundamental Deed of Lease Provisions . Certain Fundamental Deed of Lease Provisions are presented in this Section in summary form solely to facilitate convenient reference by the parties hereto:

 

 

-1-

 

-2-

(b) References and Conflicts . References appearing in Section 1(a) are intended to designate some of the other places in the Deed of Lease where additional provisions applicable to the particular Fundamental Deed of Lease Provisions appear. These references are for convenience only and shall not be deemed all inclusive. Each reference in this Deed of Lease to any of the Fundamental Deed of Lease Provisions contained in Section 1(a) shall be construed to incorporate all of the terms provided for under such provisions, and such provisions shall be read in conjunction with all other provisions of this Deed of Lease applicable thereto. If there is any conflict between any of the Fundamental Deed of Lease Provisions set forth in Section 1(a) and any other provisions of the Deed of Lease, the latter shall control.

 

(c) Exhibits . The following drawings and special provisions are attached hereto as exhibits and hereby made a part of this Deed of Lease:

 

Exhibit A. Floor Plan of Demised Premises [§2(a)]

Exhibit B. Space Plan of Demised Premises [§6(a)]

Exhibit C. Construction Schedule [§6(b)]

Exhibit D. Rules and Regulations [§8]

Exhibit E. Certificate of Commencement [§2(a) and §3(b)]

Exhibit F. Legal description of the Property

Addendum

 

2. Premises.

 

(a) Demised Premises . Landlord hereby leases to Tenant, and Tenant hereby rents from Landlord, the Demised Premises as specified in Section 1(a)(1) located in the Building specified in Section 1(a)(2) at the address specified in Section 1(a)(3). The Demised Premises shall consist of approximately the square footage of rentable floor space as specified in Section 1(a)(4) and as shown on floor plan attached hereto as Exhibit “A”. Landlord’s architect has determined the exact number of rentable square feet in the Demised Premises in accordance with the WDCAR Method (hereinafter defined as set forth in Section 1(a)(4). The parties agree that the rentable square footage of the Demised Premises, determined pursuant to this section, and the adjusted Base Annual Rent and Tenant’s Proportionate Share shall be set forth in the Certificate of Commencement, attached hereto as Exhibit “E”, to be executed by the parties within fifteen (15) days after the Commencement Date of the Deed of Lease Term. As used herein, the “WDCAR” shall mean the Washington, D.C. Association of Realtors Standard Method of Measurement dated January 1989.

 

(b) Building . Landlord and Tenant acknowledge that the gross rentable area in the Building is specified in Section 1(a)(5). Landlord reserves the right to modify the rentable area of the Building from time to time during the Deed of Lease Term as a result of construction of new improvements, the demolition of existing improvements, or inclusion of improvements not currently within the boundaries of the Building.

 

(c) Tenant’s Proportionate Share . Tenant’s Proportionate Share of certain expenses hereinafter made payable to Landlord as Additional Rent is specified in Section 1(a)(6). Said computation is based upon the ratio of the total rentable area of the Demised Premises to the rentable area of the Building. The Proportionate Share shall be modified during the Deed of Lease Term in the event that the rentable area of the Building is modified as described in Section 2(b) above.

 

3. Term.

 

(a) Deed of Lease Term . The term of this Deed of Lease (sometimes herein called the “Lease Term”) shall be the period commencing on the date Landlord delivers possession of the Demised Premises to Tenant (the “Commencement Date”) and, subject to sooner termination as herein provided, ending the number of years and months specified in Section 1(a)(7) after the anticipated Rent Commencement Date (the “Expiration Date”). The anticipated Rent Commencement Date is set forth in

 

-3-

Section 1(a)(9). The period commencing with the Rent Commencement Date (on the first day of the next calendar month in the event the Rent Commencement Date does not occur on the first day of a month) and ending on the last day of the twelfth calendar month thereafter shall constitute the first “lease year” as such term is used herein. Each successive full twelve (12) month period during the Deed of Lease Term shall constitute a “lease year” and any portion of the Deed of Lease Term remaining after the last twelve (12) month period during said Deed of Lease Term shall constitute the last “lease year” for the purposes of this Deed of Lease.

 

(b) Inability to Deliver Possession . If Landlord shall be unable to tender possession of the Demised Premises on the Commencement Date set forth in Section 1(a)(8) or by the Rent Commencement Date set forth in Section 1(a)(9), if Landlord is constructing the tenant improvements, by reason of: (a) the fact that the Demised Premises are located in a Building being constructed and which has not been sufficiently completed to make the Demised Premises ready for occupancy; (b) the holding over or retention of possession of any tenant or occupant, provided Landlord has used commercially reasonable efforts to remove holdover tenant; (c) the failure to complete repairs, improvements or decoration of the Demised Premises or of the Building; or (d) for any other reason, Landlord shall not be subject to any liability for the failure to tender possession on said date. In the case of holding over, provided Landlord shall promptly institute suit for recovery of the Demised Premises and diligently pursue the same, Landlord shall have no responsibility for any delay in tendering possession of the Demised Premises. Under any of the aforesaid circumstances, the rent covenanted to be paid herein shall not commence until possession of the Demised Premises is tendered to Tenant; provided, however, that the Rent Commencement Date shall not be postponed by (i) any delays occasioned by Tenant’s failure to perform any of its obligations with respect to the construction of the Demised Premises within the time frames for such performance set forth in Exhibit “C”, or (ii) any delays in construction caused by any contractors retained by Tenant, or (iii) any delays in construction resulting from delays in the delivery or installation of improvements specified in Tenant’s Space Plan which are not Building Standard, provided that Landlord shall have informed Tenant with prior written notice that such improvements would result in construction delays prior to final Space Plan approval. No such failure to give possession on the date set forth in Section 1(a)(8) or the Rent Commencement Date set forth in Section 1(a) (9)(a) (as applicable, shall in any other respect affect the validity of this Deed of Lease or the obligations of Tenant hereunder, nor shall same be construed to modify the Deed of Lease Term, which in all events shall be the number of years and months set forth in Section 1(a)(7); provided, however, that if Landlord shall not have tendered possession of the Demised Premises to Tenant on or before June 30, 2004, then Landlord or Tenant may terminate this Deed of Lease by written notice to Tenant. In such event, Landlord shall refund any security deposit and advance rental payment theretofore paid by Tenant, and the parties shall thereupon be relieved of any and all liability hereunder. If permission is given to Tenant to enter into the possession (with the exception that Tenant shall have access two (2) weeks prior to substantial completion of Tenant Improvements in order to install phone, LAN, etc...) of the Demised Premises prior to the Commencement Date in Section 1(a)(8), or the Rent Commencement Date set forth in Section 1(a)(9) (as applicable), Tenant covenants and agrees that such occupancy shall be deemed to be under all the terms, covenants, conditions and provisions of this Deed of Lease and the Commencement Date or the Rent Commencement Date (as applicable) will coincide with the date of occupancy. Within fifteen (15) days after the Rent Commencement Date, Landlord and Tenant shall execute a Certificate of Commencement in the form of Exhibit “E”.

 

4. Rent.

 

(a) Base Annual Rent . The Base Annual Rent reserved hereunder shall be as specified in Section 1(a)(12) which shall be payable by Tenant to the Landlord during each lease year of the Deed of Lease Term in equal monthly installments of Base Monthly Rent each as specified in Section 1(a)(13). Tenant shall pay the first monthly installment of Base Annual Rent upon execution of this Deed of Lease. Tenant shall pay the remaining monthly installments of Base Annual Rent in advance, without notice or demand, and without set-off, deduction or abatement of any kind, on or before the first day of each and every calendar month throughout the entire term of the Deed of Lease, at the office of the Rental Agent specified in Section 1(a)(l1), or to such other person or at such other address as Landlord may designate by written notice to Tenant from time to time.

 

(b) Adjustments to Base Annual Rent . On the first day of the second lease year, and on the first day of each lease year thereafter during the Deed of Lease Term (including any extension terms), the Base Annual Rent (then in effect) shall be increased by three percent (3%) per annum. Landlord shall

 

-4-

give Tenant written notice of each such adjustment and the amount of Base Annual Rent payable during the forthcoming lease year.

 

(c) Additional Rent .

 

(i) General . Whenever it is provided by the terms of this Deed of Lease that Tenant is required to make any payment to Landlord other than of Base Annual Rent, such payment shall be deemed to be additional rent (“Additional Rent”). Unless otherwise expressly specified herein, Additional Rent shall be paid by Tenant upon Tenant’s receipt from Landlord of a statement showing the amount owed. Additional Rent shall include, but not be limited to:

 

(ii) Operating Expenses . Throughout the Deed of Lease Term, Tenant agrees to pay to Landlord, as Additional Rent, Tenant’s Proportionate Share, as set forth in Section 1(a)(6), of any increase in operating expenses during each calendar year over the Base Operating Expense Amount specified in Section 1(a)(17). Operating expenses shall be adjusted to reflect a ninety-five percent (95%) occupancy level in the Building in the event the true occupancy is less than that amount. The term “operating expenses” shall mean any and all expenses incurred by Landlord in connection with owning, managing, operating, maintaining, servicing, insuring and repairing the Building, and the attached land and parking lot, and its related exterior appurtenances, including but not limited to: (1) wages and salaries of all employees engaged in the management, operation or maintenance of the Building, including taxes, insurance and benefits relating hereto; (2) all supplies, materials, equipment and tools used in the operation or maintenance of the Building; (3) cost of all maintenance and service agreements for the Building and the equipment therein, including but not limited to controlled access and energy management services, window cleaning and elevator maintenance; (4) cost of all insurance relating to the Building, including the cost of casualty, liability and rent loss insurance applicable to the Building and Landlord’s personal property used in connection therewith; (5) general and special repairs and maintenance; (6) management fees; (7) legal, accounting, auditing and other professional fees; (8) the cost of any additional services not provided to the Building at the Commencement Date of the Deed of Lease Term, but thereafter provided by Landlord in the prudent management of the Building; (9) reasonable reserves for replacements, repairs and contingencies; (10) costs for char service and cleaning supplies; (11) costs for utility services such as electricity, gas, water and sewage (including any costs incurred in changing the provider providing electricity services); (12) the cost of any capital improvements or alterations made to the Building after the Commencement Date of the Deed of Lease Term, that reduce other operating expenses, or which are required under any governmental law or regulation that was not applicable to the Building at the time it was constructed, such cost to be amortized over such period as Landlord shall determine in accordance with GAAP together with interest on the unamortized balance at the rate paid by Landlord on funds borrowed for the purpose of constructing such capital improvements; (13) transportation district fees, parking district fees, and the cost of other amenities required by law; and (14) “real estate taxes” (as hereinafter defined). “Operating Expenses” shall not include any of the following except to the extent that such costs and expenses are included in the operating expenses described above: capital expenditures; depreciation of the Building or equipment therein; costs of painting or decorating tenant space; leasing brokerage commissions; interest and amortization of mortgages; ground rent; the costs of special services or utilities separately charged to individual tenants of the Building; the costs of tenant alterations; advertising costs; costs which are reimbursed by tenants or insurance; interest or penalties resulting from late payments by Landlord; or debt service payments related to any indebtedness encumbering the Building.

 

The term “real estate taxes” shall mean all taxes and assessments, general and special, ordinary and extraordinary, foreseen and unforeseen, now or hereafter assessed, levied or imposed upon the Building, and the land on which it is built, including, without limitation, front foot benefit charges and adequate public facility costs and assessments, together with (i) any tax, assessment, or other imposition in the nature of a real estate tax, (ii) any ad valorem tax on rent or any tax on income if imposed in lieu of or in addition to real estate taxes and assessments, and (iii) any taxes and assessments which may hereafter be substituted for real estate taxes, including by way of illustration only, any tax, assessment or other imposition (whether a business rental or other tax) now or hereafter levied upon Landlord for Tenant’s use or occupancy of or conduct of business at the Demised Premises, or Tenant’s improvements to or furniture, fixtures or equipment in the Demised Premises. “Real estate taxes” shall also include all costs incurred by Landlord in contesting the validity or amount of any such taxes. “Real estate taxes” shall exclude taxes assessed on taxable income at either the Federal or state level, gift taxes, estate taxes, and inheritance taxes.

 

-5-

(iii) Landlord’s Enforcement Costs . Additional Rent shall include any and all expenses incurred by Landlord, including reasonable attorneys’ fees and court costs, for the collection of monies due from Tenant and the enforcement of Tenant’s obligations under the provisions of this Deed of Lease. When Landlord, at Tenant’s expense, performs an obligation of Tenant pursuant to the terms of this Deed of Lease, the costs and expenses (including overhead) incurred by Landlord in performance of such obligations shall be Additional Rent.

 

(d) Additional Rent Estimates and Adjustments .

 

(i) In order to provide for current monthly payments of Additional Rent, Landlord shall submit to Tenant prior to January 1st of each year a written statement of Landlord’s estimate of the amount of the increases described in Section 4(c)(ii) above, together with the amount of Tenant’s Additional Rent which is estimated to result from such increases. Tenant shall pay each month one-twelfth (1/12th) of Tenant’s Proportionate Share of Landlord’s estimate of the increase in each year of operating expenses over the Base Operating Expense Amount. Landlord may revise its estimate of operating expenses at any time during a calendar year by written notice to Tenant, setting forth such revised estimate and Tenant’s Proportionate Share of the estimated operating expense increases. In such event, all monthly payments made by Tenant after such notice shall be in an amount calculated on the basis of such revised estimate. Tenant shall, in all cases, continue to make monthly payments of Basic Operating Expenses based on the last estimate from Landlord until it receives a revised or updated estimate.

 

(ii) If payment of Additional Rent begins on a date other than January 1st under this Deed of Lease, in order to provide for current payments of Additional Rent through December 31st of that partial calendar year, Landlord shall submit to Tenant a statement of Landlord’s estimate of Tenant’s Additional Rent for that partial year, stated in monthly increments, resulting from the increases described in Section 4(c)(ii) above. Tenant shall make the monthly incremental payments of estimated Additional Rent together with its installments of Base Monthly Rent.

 

(iii) After the end of each calendar year, Landlord will as soon as practicable submit to Tenant a statement of the actual increases incurred in operating expenses for the preceding calendar year over the Base Operating Expense Amount. Tenant shall pay Landlord, within thirty (30) days of Tenant’s receipt of such statement, Tenant’s Proportionate Share of the excess, if any, of Tenant’s Proportionate Share of the actual operating expense increases over the amount paid by Tenant during the previous year as its Proportionate Share of the projected operating expense increases. If the amount paid by Tenant during the previous year exceeded Tenant’s Proportionate Share of actual operating expense increases for the year, the excess shall be credited toward payment of the next installment of Base Monthly Rent to be paid by Tenant after Tenant receives said statement from Landlord. If the amount paid by Tenant during the last calendar year of the Deed of Lease Term exceeds Tenant’s Proportionate Share of actual operating expense increases for such year, Landlord shall pay Tenant the excess amount within thirty (30) days after Landlord’s submission to Tenant of the aforesaid operating expense statement for such calendar year.

 

(iv) Within fifteen (15) business days after receipt of Landlord’s statement showing actual figures for the year, Tenant shall have the right to request a statement of operating expenses of the Building prepared by Landlord’s certified public accountant and copies of real estate tax bills, which shall be supplied to Tenant within thirty (30) days after Tenant’s written request. No such request shall extend the time for payments as set forth in Section 4(c) or Section 4(d)(iii) above. Unless Tenant asserts specific error(s) and supports such errors, in writing, within fifteen (15) business days after Landlord has complied with Tenant’s request, Tenant shall waive the right to contest the statement of actual figures for the year submitted by Landlord. If it shall be determined that there is an error in Landlord’s statement, Tenant shall be entitled to a credit for any overpayment. Any payment, refund or credit made pursuant to Section 4(c) or 4(d) shall be made without prejudice to any right of Tenant to dispute, or of Landlord to correct, any item(s) as billed pursuant to the provision hereof; provided however, such right to correct or adjust rental payments shall terminate at the expiration of two (2) years after the date any payment shall have become due.

 

(e) Prorated Rent . Any rent payable for a portion of a month shall be prorated based upon a thirty (30) day calendar month.

 

-6-

(f) Payment of Rent . Any Base Annual Rent or Additional Rent which is not paid within five (5) days after the same is due shall bear interest at eighteen percent (18%) per annum or the highest legal rate, whichever is lower. In addition, in the event Base Annual Rent or Additional Rent is not paid within five (5) days of its due date, Landlord, at its sole option, may assess a late charge equal to five percent (5%) of the Base Monthly Rent as liquidated damages for the additional administrative charges incurred by Landlord as a result of such late payment. If Landlord receives from Tenant two or more returned or “bounced” checks in any twelve (12) month period, Landlord may require all future rent by cashier’s or certified check.

 

(g) Survival of Rent Obligation . The obligation of Tenant with respect to the payment of Additional Rent shall survive the termination of this Deed of Lease or assignment thereof.

 

5. Security Deposit .

 

(a) Use . Tenant has deposited with Landlord simultaneously with the execution of this Deed of Lease, the amount stipulated in Section 1(a)(16) as a deposit (the “Security Deposit”) to secure the prompt performance of Tenant’s obligations hereunder. The Security Deposit may be commingled with Landlord’s general funds, if permitted by law. Landlord shall have the right, but shall not be obligated, to apply all or any portion of the Security Deposit to cure any Default or to compensate Landlord for loss or damage sustained by Landlord as a result of a Default, in which event Tenant shall be obligated to deposit with Landlord the amount necessary to restore the Security Deposit to its original amount within seven (7) days after written notice from Landlord. To the extent not forfeited or otherwise used as provided herein, and provided the Demised Premises are vacated in good condition, reasonable wear and tear excepted, as described in Section 11, the Security Deposit shall be returned, without interest, to Tenant within thirty (30) business days after the expiration or termination of this Deed of Lease.

 

(b) Exclusivity . Landlord may deliver the Security Deposit to the purchaser or any assignee of Landlord’s interest in the Demised Premises or the Building, whereupon Landlord shall be discharged from any further liability with respect to the Security Deposit. This provision shall apply also to any and all subsequent transferors of the Landlord’s interest in this Deed of Lease.

 

(c) Not Liquidated Damages . If the Tenant fails to take possession of the Demised Premises as required by this Deed of Lease, the Security Deposit shall not be deemed liquidated damages and Landlord’s use of the Security Deposit pursuant to this Section 5 shall not preclude Landlord from recovering from Tenant all additional damages incurred by Landlord.

 

6. Construction of Premises and Occupancy .

 

(a) Delivery and Acceptance . Landlord, at Landlord’s expense, shall provide Tenant with a “turn-key” build-out in accordance with the mutually agreed upon space plan attached hereto and made a part hereof as Exhibit “B” which has been executed by Tenant. Said “turn-key” build-out shall include glass side lights in all offices and small conference room; white suspended ceiling in reception area to match all areas with the exception of area above the existing reception desk; built-ins and shelving along lab wall; glass doors between conference rooms; and reduction in size of the Lab as specified by Tenant. All materials used for “turn-key” will be building standard materials. The Tenant Improvements shall be constructed in accordance with all applicable ADA and fire standards. Tenant shall notify Landlord of any construction defects within ten (10) days after Landlord’s delivery of the Premises to Tenant. Landlord shall promptly repair any such defects.

 

(i) Architectural Services . Landlord shall provide architectural services required in connection with the preparation of the Tenant’s initial Space Plan, at Landlord’s cost. Landlord shall provide architectural services required in connection with the construction of the Demised Premises including construction drawings, which shall be a component of the “turn-key” build-out as referenced above in 6(a). Landlord and Tenant shall comply with the Construction Schedule attached hereto and made a part hereof as Exhibit “C”.

 

(ii) Permits . Landlord shall be responsible for obtaining the construction and occupancy permits for the Demised Premises. Tenant shall be responsible for obtaining any other permits or licenses necessary for its lawful occupancy of the Demised Premises. If the occupancy permit is denied for any reason outside of Landlord’s control, this Deed of Lease will become null and void. In such

 

-7-

event, Landlord shall refund any security deposit and advance rental payment theretofore paid by Tenant, and the parties shall thereupon be relieved of any and all liability hereunder.

 

(iii) Construction Services Provided by Tenant : INTENTIONALLY DELETED

 

(iv) Tenant’s Space Plan . Tenant agrees to accept the Demised Premises as described in Exhibit “B”, Tenant’s Space Plan, attached hereto which Tenant has executed and approved, and in any other exhibits which may be referenced herein affecting the construction, remodeling and/or delivery of the Demised Premises. Landlord may deliver possession of the Demised Premises subject to minor punch list items to be completed after the Rent Commencement Date and/or any incomplete work which is to be performed by Landlord. Landlord shall deliver the Premises with all mechanical and electrical systems in good working order.

 

7. Use of Demised Premises .

 

(a) Use . Tenant shall use and occupy the Demised Premises for the purposes specified in Section 1(a)(15).

 

(b) Illegal and Prohibited Uses Compliance . Tenant will not use or permit the Demised Premises or any part thereof to be used in violation of any present or future applicable law, regulation or ordinance, or of the certificate of occupancy issued for the Building or the Demised Premises, and shall immediately discontinue any use of the Demised Premises which is declared by any governmental authority having jurisdiction to be in violation of law or said certificate of occupancy. Tenant will not use or permit the Demised Premises to be used for any purposes that interfere with the use and enjoyment of the Building by Landlord or the other tenants, or which violate the requirements of any insurance company insuring the Building or its contents. Tenant shall refrain from and discontinue such use immediately upon receipt of written notice from Landlord. Tenant, at its expense, shall comply with the laws, rules or regulations now or hereinafter enacted of any federal, state or municipal authority, or the local Fire Underwriters Association, or with any notice from any public officer pursuant to law, or with any notice from any insurance company pertaining to Tenant’s occupancy or use of the Demised Premises, whether such notice shall be served on Landlord or Tenant. Tenant, at Tenant’s expense, shall, after obtaining Landlord’s prior written consent (which shall not be unreasonably withheld), make any changes, alterations, renovations or modifications to the Demised Premises which are necessitated or required by any such laws, rules, regulations or notices.

 

(c) Environmental Protection . Tenant and Tenant’s employees and agents shall not dispose of any oil, petroleum or chemical liquids or solids, liquid or gaseous products or any hazardous waste or hazardous substance including, without limitation, asbestos (hereinafter collectively referred to as “hazardous waste”), as those terms are used in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 , or in any other federal, state or local law governing hazardous substances, as such laws may be amended from time to time (hereinafter collectively referred to as the “Act”), at, upon, under or within the Demised Premises or the Building or the land upon which it is built or into the plumbing or sewer or water system servicing the Demised Premises and/or the Building, nor shall Tenant, its agents or employees cause or permit the discharge, spillage, uncontrolled loss, seepage or filtration of any hazardous waste at, upon, under or within the Demised Premises or the Building or the land or into the plumbing or sewer or water system servicing the same. Tenant shall comply in all respects with the requirements of the Act and related regulations. In the event of a release, leaking, spillage or other deposit of any hazardous waste at, upon, under or within any part of the Demised Premises or the Building or the land, Tenant shall give immediate notice to the Landlord of same and promptly, at Tenant’s sole expense, take any and all, necessary actions to return the Demised Premises and the Building and the land to the condition existing before the presence of any such hazardous waste, provided, however, that Tenant shall first obtain Landlord’s written approval for any such remedial action. Tenant will comply with all laws, perform clean-up activities, and indemnify the Landlord for any and all discharge, spillage, uncontrolled loss, seepage or filtration of any hazardous waste that are caused or conducted by the Tenant, its employees, agents, and/or contractors. Tenant shall not be liable for pre-existing conditions, migrations of contamination, spillage or other releases. Landlord represents that, to the best of its actual knowledge, the Demised Premises is free of any and all environmental contamination as of the Commencement Date.

 

(d) Indemnification . Tenant shall indemnify, defend and hold harmless Landlord from and against all costs, expenses, liabilities, losses, damages, injunctions, suits, fines, penalties, claims, and

 

-8-

demands including reasonable attorneys’ fees, arising out of any violation of or default in the covenants of Sections 7(b) and (c). The provisions of Sections 7(b) and (c) and this Section 7(d) shall survive the expiration or termination of the Deed of Lease Term.

 

8. Rules and Regulations . Tenant covenants on behalf of itself, its employees, agents, and licensees and invitees to comply with the rules and regulations set forth in Exhibit “D”, which is attached hereto and made a part hereof (the “Rules and Regulations”). Landlord shall have the right, in its sole discretion, to make reasonable additions and amendments to the Rules and Regulations from time to time and Tenant covenants that Tenant, its employees, agents, licensees and invitees will comply with additions and amendments to the Rules and Regulations upon Landlord’s provision to Tenant of a written copy of the same. Any default by Tenant, or any other party set forth above, of any of the provisions of the Rules and Regulations as set forth on Exhibit “D” or as amended, from time to time, shall be considered to be a Default under the terms of this Deed of Lease. Nothing contained in this Deed of Lease shall be construed to impose upon Landlord any duty or obligation to enforce the Rules and Regulations, or any amendments or additions thereto, against any other tenant, and Landlord shall have no liability to Tenant or any other party for violations of the Rules and Regulations by any party whatsoever. If there is any inconsistency between this Deed of Lease and the Rules and Regulations, the Deed of Lease shall govern.

 

9. Subletting and Assignment .

 

(a) Consent . Tenant shall not assign this Deed of Lease, or any of Tenant’s rights or obligations hereunder, or sublet the Demised Premises or any part thereof, or permit the Demised Premises to be used by others without the prior written consent of Landlord, which consent shall not be unreasonably withheld if all of the following conditions are satisfied:

 

(i) In the reasonable judgment of Landlord, the proposed assignee or subtenant has sufficient financial net worth and will not adversely affect the character of the Building and is in keeping with the standards of Landlord in those respects for the Building, and the nature of the proposed assignee’s or subtenant’s business and its reputation are in keeping with the character of the Building and its tenancies;

 

(ii) The purposes for which the proposed assignee or subtenant intends to use the Demised Premises (or the applicable portion thereof) are uses permitted by this Deed of Lease and not prohibited by any other lease in the Building;

 

(iii) No uncured default shall have occurred under this Deed of Lease, either at the time Landlord’s consent to such assignment or subletting is requested, or at the commencement of the term or effective date of such assignment or subletting, and Tenant shall comply with all of the terms of this Section 9 in connection with such assignment or subletting;

 

(iv) In the event of an assignment, the proposed assignee shall assume all of Tenant’s obligations under this Deed of Lease; and

 

(v) In the event of a subletting, the proposed subtenant shall agree to perform Tenant’s obligations hereunder with respect to the portion of the Demised Premises sublet;

 

(vi) Any Building mortgagee whose consent is required shall consent to such assignment or subletting.

 

If Tenant is a corporation, unincorporated association, partnership or limited liability company, then the transfer, assignment or hypothecation of any stock or interest in such corporation, association, partnership or limited liability company so as to result in a change in the control thereof by the person, persons or entities owning a controlling interest therein as of the date of this Deed of Lease, without the prior written consent of Landlord as described above, shall be deemed an assignment made in breach of this covenant. Tenant shall not mortgage, pledge or encumber this Deed of Lease without Landlord’s prior written consent, which may be granted or withheld in Landlord’s sole discretion. Landlord’s consent in any specific instance to any assignment, mortgage, pledge, encumbrance, subletting or use of the Demised Premises and its collection and acceptance of rent from any such approved assignee, subtenant or other occupant shall neither constitute a waiver of the provisions of this paragraph, nor be construed as permission for any subsequent assignment, mortgage, encumbrance, subletting or use

 

-9-

without compliance with this paragraph. Without the prior written consent of Landlord, this Deed of Lease and the interest of Tenant, or any assignee of Tenant, shall not pass by operation of law, nor shall it be subject to garnishment or sale under execution in any suit or proceeding which may be brought against or by Tenant, or any assignee of Tenant. Notwithstanding the above, a Sale which results in a change of control (as set forth above) shall not be deemed an assignment provided (i) the entity which becomes the Tenant has a net worth in excess of Tenant’s at the time the Lease is executed, (ii) the use of the Demised Premises remains unchanged, and (iii) Tenant provides Landlord advance written notice of the sale with sufficient information to allow Landlord to verify that (i) and (ii) above are correct.

 

(b) Request for Consent . In order to request the consent of Landlord to an assignment of this Deed of Lease or subletting of all or part of the Demised Premises, Tenant shall give Landlord written notice (“Tenant’s Request Notice”) of Tenant’s intent to sublease or assign. Tenant shall then provide the identity of the proposed assignee or subtenant and its business, all terms of the proposed assignment or subletting, the commencement or effective date of the proposed assignment or subletting (the “Proposed Transfer Commencement Date”, and the area proposed to be assigned or sublet (the “Proposed Transfer Space”). Tenant shall also transmit therewith the most recent financial statement or other evidence of financial responsibility of such assignee or subtenant, a certification executed by Tenant and such proposed assignee or subtenant stating whether (and to what extent) any premium or other consideration is being paid for the proposed assignment or subletting, and all other information reasonably requested by Landlord concerning such proposed assignee or subtenant. Tenant shall pay all expense not to exceed Five Hundred and 00/100 Dollars ($500.00) (including reasonable attorneys’ fees) incurred by Landlord in connection with any request by Tenant for Landlord’s consent to any assignment, subletting, mortgage, pledge or encumbrance.

 

(c) Landlord’s Termination Right . Landlord shall have the right in its sole and absolute discretion to terminate this Deed of Lease for the remainder of the Term with respect to the Proposed Transfer Space if the Proposed Transfer Space is the entire Demised Premises as of the Proposed Transfer Commencement Date, by sending Tenant written notice within thirty (30) days after Landlord’s receipt of Tenant’s Request Notice. If Landlord wants to recapture, Tenant shall have three (3) business days to rescind the proposed request to sublease. If the Proposed Transfer Space does not constitute the entire Demised Premises and Landlord elects to terminate this Deed of Lease with respect to the Proposed Transfer Space, then (i) Tenant shall tender the Proposed Transfer Space to Landlord on the Proposed Transfer Commencement Date as if the Proposed Transfer Commencement Date had been originally set forth in this Deed of Lease as the expiration date of the Deed of Lease Term with respect to the Proposed Transfer Space; and (ii) as to all portions of the Demised Premises other than the Proposed Transfer Space, this Deed of Lease shall remain in full force and effect, and the Base Annual Rent and Tenant’s Proportionate Share shall be reduced proportionately based on square footage. Tenant shall pay all expenses of demising walls and other construction required to permit the operation of the Proposed Transfer Space separate from the balance of the Demised Premises. If the Proposed Transfer Space constitutes the entire Demised Premises and Landlord elects to terminate this Deed of Lease, then: (i) Tenant shall lender the Demised Premises to Landlord on the Proposed Transfer Commencement Date, and (ii) the Deed of Lease Term shall terminate on the Proposed Transfer Commencement Date. If Landlord exercises its right to terminate this Deed of Lease with respect to the Proposed Transfer Space. Tenant agrees that Landlord shall have access to the Proposed Transfer Space thirty (30) days prior to the effective termination date for remodeling or redecorating purposes, or to show the Proposed Transfer Space to prospective tenants. Landlord shall have the right to terminate if the sublease and/or assignment is due to a merger or acquisition or purchase of assets.

 

(d) Profits . In the event of an assignment or sublease made in accordance with the terms hereof, Tenant shall pay to Landlord monthly (in the case of a sublease) or when otherwise received by Tenant (in the case of an assignment) fifty percent (50%) of the “Net Profits” (as defined herein) received by Tenant in connection with such assignment or sublease. “Net Profits” is defined as the excess of the rent and/or all other sums collected by Tenant under or in connection with such an assignment or sublease over and above the Base Annual Rent and Additional Rent payable by Tenant to Landlord under this Deed of Lease for the space covered by such assignment or sublease (which shall be the pro rata portion of the total Base Annual Rent and Additional Rent payable hereunder in the case of a sublease of a portion of the Demised Premises) and the direct, out of pocket costs incurred by Tenant in performing alterations or leasehold improvements for the assignee or subtenant and the leasing commissions paid by Tenant in connection with such assignment or sublease.

 

-10-

(e) Tenant Liability . In the event of any subletting of the Demised Premises or assignment of this Deed of Lease by Tenant, with or without Landlord’s consent, Tenant shall remain liable to Landlord for payment of the Base Annual Rent and Additional Rent stipulated herein and all other covenants and conditions contained herein. Tenant assigns to Landlord any rents due from any subtenant as security for Tenant’s performance of its obligations under this Deed of Lease. Upon a Default by Tenant, Tenant authorizes each of its subtenants to pay such rents directly to Landlord if such subtenant receives written notice from Landlord specifying that such rents shall be paid directly to Landlord.

 

(f) Assignment by Landlord . It is understood and agreed that this Deed of Lease and all rights of Landlord hereunder shall be fully and freely assignable by Landlord without notice to, or consent of, Tenant. In the event of the transfer and assignment by Landlord of its interest in this Deed of Lease, Landlord shall thereby be released from any responsibility for obligations accruing hereunder after the date of such transfer, and Tenant agrees to look solely to such successor in interest of the Landlord for performance of such obligations. The term “Landlord” as used in this Deed of Lease shall mean the owner of the Building at the time in question. In the event of a transfer (whether voluntary or involuntary) by such owner of its interest in the Building, such owner shall thereupon be released and discharged from all covenants and obligations of the Deed of Lease thereafter accruing, but such covenants and obligations shall be binding during the Deed of Lease Term upon each new owner for the duration of such owner’s ownership.

 

10. Services and Utilities .

 

(a) Building Standard Services and Utilities . Landlord shall furnish sufficient electric current comparable with other Class A office buildings within Reston, Virginia for routine and normal requirements for lighting and typical office equipment and machinery, such as typewriters, calculators, personal computers, office copiers and similar items, subject to the limitations of Section 10(b), water for lavatory and drinking purposes, common area lavatory supplies, Building standard four foot (4’) fluorescent tube replacements, automatically operated elevator service twenty-four (24) hours a day, seven (7) days a week (by use of an access card and elevator key), and nightly cleaning and janitorial services Monday through Friday, all without additional cost to Tenant. Landlord further agrees to furnish heating and cooling during the appropriate seasons of the year, between the hours and on the days set forth in Section 1(a)(20), exclusive of the Building Holidays specified in Section 1(a)(21), with holidays falling on Saturday observed both on said day and on the preceding Friday, and holidays falling on Sunday observed on the following Monday. During Standard Building Operating Hours, the temperature within the Demised Premises shall be maintained within the range from a minimum of sixty-eight (68) degrees fahrenheit during winter months to a maximum of seventy-eight (78) degrees fahrenheit during summer months.

 

(b) Overtime Services . Should Tenant require heating, ventilating and air conditioning (“HVAC”) services beyond the hours stipulated in Section 10(a), Landlord will furnish such additional service at the then-prevailing hourly rate, currently Thirty-Five and 00/100 Dollars ($35.00) per hour, as established by Landlord from time to time, which shall not exceed the costs in other comparable Class A office buildings in Reston, Virginia, provided that Tenant gives Landlord no less than twenty-four (24) hours advance written notice of the need therefor.

 

(c) Interruption or Reduction of Service . Landlord reserves the right to interrupt service, if Landlord provides Tenant with twenty-one (21) days of prior written notice, of the heat, plumbing, air conditioning, cooling, electric, and sewer and water systems, when necessary, by reason of accident, or of repairs, alterations, improvements or changes from one utility provider to another, which in the judgment of Landlord are desirable or necessary to be made, until such repairs, alterations or improvements shall have been completed; Landlord shall use reasonable efforts to minimize disruption to Tenant; and Landlord shall have no responsibility or liability for failure to supply heat, plumbing, air conditioning, cooling, electric, or sewer and water service, or any other service or act for the benefit of Tenant, when prevented from so doing by strikes, accidents or by any other causes beyond Landlord’s reasonable control, or by orders or regulations of any federal, state, county, or municipal authority, or by any failure to receive suitable fuel supply, or inability despite exercise of reasonable diligence to obtain the regularly-used fuel or other suitable substitute. If any public utility supplying any utility to the Building, or any law, order or regulation of any federal, state, county or municipal authority requires that Landlord or Tenant must reduce or maintain a certain level of consumption of electricity or any other utility, or reduce or increase the interior temperature of the Demised Premises or the Building, then Landlord and Tenant shall each abide by such requirement without any reduction in Base or Additional

 

-11-

Rent or in any of Tenant’s other obligations hereunder. In the event of an interruption, reduction or failure in the supply of any utilities to the Demised Premises for a period exceeding ten (10) business days due to causes beyond Landlord’s reasonable control as herein described, then Tenant shall be entitled to a rental abatement for that period of time in which there occurred an interruption, reduction or failure in the supply of utilities.

 

(d) Excessive Electrical Usage .

 

(i) Tenant will not install or operate in the Demised Premises any heavy duty electrical equipment or machinery, without obtaining the prior written consent of Landlord. Landlord may require, as a condition of its consent to the installation of such equipment or machinery, payment by Tenant, as Additional Rent, for such excess consumption of electricity as may be occasioned by the operation of said equipment or machinery. Landlord may make periodic inspections of the Demised Premises at reasonable times to determine that Tenant’s electrically operated equipment and machinery complies with the provisions of this Section and Section 10(e).

 

(ii) Landlord shall have the right to require that one or more separate meters or submeters be installed to record the consumption or use of electricity, or to cause a reputable independent electrical engineer, which shall be mutually selected, to survey and determine the quantity of electricity consumed by such excessive use. The cost of any such survey or meters and of installation, maintenance and repair thereof shall be paid by Tenant. Tenant agrees to pay Landlord (or the utility company, if direct service is provided by the utility company), promptly upon demand therefor, for all such electricity consumption as shown by said meters, or a flat monthly charge determined by the survey, as applicable, at the rates charged for such service by the local public utility company. If Tenant’s cost of electricity based on meter readings is to be paid to Landlord, Tenant shall pay a service charge related thereto.

 

(e) Excessive Heat Generation . Landlord shall not be liable for its failure to maintain comfortable atmospheric conditions in all or any portion of the Demised Premises, due to heat generated by any equipment or machinery installed by Tenant (with or without Landlord’s consent) that exceeds generally accepted engineering design practices for normal office purposes. If Tenant desires additional cooling to offset excessive heat generated by such equipment or machinery, Tenant shall pay for auxiliary cooling equipment and its operating costs, including without limitation electricity, gas, oil and water, or for excess electrical consumption by the existing cooling system, as appropriate.

 

(f) Security . Any security measures that Landlord may undertake are for protection of the Building only and shall not be relied upon by Tenant to protect Tenant, its property, its employees or their property.

 

(g) Utility Selection . Landlord may, at any time, in its sole discretion, change the utility provider which provides electricity or any other utility service to the Building. In the event of such change, Tenant shall cooperate with Landlord and allow access to the Demised Premises for purposes of effectuating such change. Landlord shall provide prior written notice before gaining access to the Demised Premises for such purposes.

 

11. Maintenance and Repairs .

 

(a) Landlord Responsibilities . Landlord shall make structural repairs to the Demised Premises necessary for safety and tenantability, and shall maintain and repair all Building equipment serving the Demised Premises and all exterior plate glass in the Demised Premises, and the cost of all such repairs or maintenance shall be included in Building operating expenses unless necessitated by the act or omission of Tenant, its agents, employees, licensees, invitees or contractors, in which event Tenant shall pay such cost to Landlord, as Additional Rent, promptly upon demand. Tenant agrees to report immediately in writing to Landlord any defective condition in or about the Demised Premises known to Tenant which Landlord is required to repair. Tenant waives the right to make repairs at Landlord’s expense under any law, statute or ordinance now or hereafter in effect. Landlord is responsible for any structural repairs to the Building and foundation and for utility improvements outside of the Building.

 

(b) Americans with Disabilities Act . Within ten (10) days after receipt, Tenant shall advise Landlord in writing, and provide copies of (as applicable) any notices alleging violation of the Americans with Disabilities Act of 1990 (“ADA”) relating to any portion of the Demised Premises or the Building, any claims made or threatened in writing regarding noncompliance with the ADA and relating to any portion

 

-12-

of the Demised Premises or the Building, or any governmental or regulatory actions or investigations instituted or threatened regarding noncompliance with the ADA and relating to any portion of the Demised Premises or the Building.

 

(c) Tenant Responsibilities . Tenant will keep the Demised Premises and the fixtures and equipment therein in good order and condition, will take good care thereof and will suffer no waste or damage thereto. At the expiration or other termination of the Deed of Lease Term, Tenant will surrender the Demised Premises broom clean and in as good order and condition in which they were on the Rent Commencement Date, ordinary wear and tear excepted. All repairs and maintenance required to be performed by Tenant shall be made or performed immediately upon the occurrence of the necessity therefor, and shall be made or performed in a first class manner, using first class materials, by a contractor approved by Landlord and bonded unless waived by Landlord, and shall be made or performed in accordance with (i) all laws and all applicable governmental codes and requirements, and (ii) insurance requirements set forth in this Deed of Lease or otherwise established by Landlord. Maintenance and repair of equipment such as auxiliary air-conditioning equipment, private bathroom fixtures and any other type of special equipment, together with related plumbing or electrical services, whether installed by Tenant or by Landlord on behalf of Tenant, shall be the sole responsibility of Tenant, and Landlord shall have no obligation in connection therewith. Tenant shall be responsible for the replacement of all light bulbs and tubes in the Demised Premises except Building Standard four foot (4’) fluorescent tubes. If Tenant refuses or neglects to promptly commence and complete repairs or maintenance necessary to satisfy the provisions of this Section, the Landlord may, but shall not be required to, make and complete said repairs or maintenance and Tenant shall pay the cost therefor (including reasonable overhead) to Landlord upon demand, as Additional Rent. Upon Tenant’s written request to Landlord, Landlord’s agent may elect to perform certain repairs, maintenance and installation in and to the Demised Premises, which are either desired by Tenant or required to be performed by Tenant as set forth herein. Tenant shall pay all costs in connection with such repairs, maintenance and installation, which costs shall include, but not be limited to labor, materials and a reasonable management fee (as determined by Landlord’s agent and subject to change from time to time.) Landlord shall have no liability to Tenant in connection with such repairs, maintenance and installation.

 

(d) Landlord’s Reserved Rights . Landlord reserves the right at any time and from time to time, as often as Landlord deems desirable, without the same constituting an actual or constructive eviction and without incurring any liability to Tenant or otherwise affecting Tenant’s obligations under this Deed of Lease, to make changes, alterations, additions, improvements, repairs, relocations or replacements in or to the Building and the fixtures and equipment thereof, as well as in or to the street entrances, halls, passages, stairways and other common facilities thereof, and to change the name by which the Building is commonly known and/or the Building’s address. Landlord reserves the right from time to time to install, use, maintain, repair and replace pipes, ducts, conduits, wires and appurtenant meters and equipment for service to other parts of the Building, above the ceiling surfaces, below the floor surfaces, within the walls and in the central core areas, and to relocate any pipes, ducts, conduits, wires and appurtenant meters and equipment included in the Demised Premises which are located in the Demised Premises or located elsewhere outside the Demised Premises, and to expand and/or build additional stories on the Building, Landlord shall use reasonable efforts to minimize interruption of Tenant’s business. Landlord further reserves the right at any time to alter, expand or reduce the parking facilities, to change the means of ingress thereto and egress therefrom and to impose charges for parking in such facilities, provided Tenant shall not have such charges imposed on it for the duration of the Lease Term. Nothing contained herein shall be deemed to relieve Tenant of any duty, obligation or liability with respect to making any repair, replacement or improvement or complying with any law, order or requirement of any government or other authority and nothing contained herein shall be deemed or construed to impose upon Landlord any obligation, responsibility or liability whatsoever, for the care, supervision or repair of the Building, or any part thereof, other than as expressly provided in this Deed of Lease.

 

-13-

12. Alterations .

 

(a) Landlord Consent . Tenant will not make any alterations, installations, changes, replacements, additions or improvements, structural or otherwise (collectively, “Alterations”) in or to the Demised Pre