EXHIBIT 10.1
PROPERTY MANAGEMENT FILE COPY
OFFICE LEASE AGREEMENT
BY AND BETWEEN
CHASE TOWER ASSOCIATES, L.L.C.
(as landlord)
AND
CAPITALSOURCE FINANCE LLC
(as tenant)
TABLE OF CONTENTS
ARTICLE I DEFINITIONS..................................................... 1
ARTICLE II PREMISES........................................................ 2
ARTICLE III TERM............................................................ 3
ARTICLE IV BASE RENT....................................................... 6
ARTICLE V INCREASES IN OPERATING EXPENSES AND REAL ESTATE TAXES........... 7
ARTICLE VI USE OF PREMISES................................................. 11
ARTICLE VII ASSIGNMENT AND SUBLETTING....................................... 13
ARTICLE VIII MAINTENANCE AND REPAIRS......................................... 16
ARTICLE IX ALTERATIONS..................................................... 17
ARTICLE X SIGNS........................................................... 20
ARTICLE XI SECURITY DEPOSIT................................................ 20
ARTICLE XII INSPECTION...................................................... 22
ARTICLE XIII INSURANCE....................................................... 23
ARTICLE XIV SERVICES AND UTILITIES.......................................... 24
ARTICLE XV LIABILITY OF LANDLORD........................................... 25
ARTICLE XVI RULES........................................................... 26
ARTICLE XVII DAMAGE OR DESTRUCTION........................................... 27
ARTICLE XVIII CONDEMNATION.................................................... 28
ARTICLE XIX DEFAULT......................................................... 28
ARTICLE XX BANKRUPTCY...................................................... 31
ARTICLE XXI SUBORDINATION................................................... 32
ARTICLE XXII HOLDING OVER.................................................... 33
ARTICLE XXIII COVENANTS OF LANDLORD........................................... 34
ARTICLE XXIV PARKING......................................................... 35
ARTICLE XXV ESTOPPELS....................................................... 36
ARTICLE XXVI GENERAL PROVISIONS.............................................. 37
EXHIBIT A - Plan Showing Premises
EXHIBIT B - [Intentionally omitted.]
EXHIBIT C - Rules
EXHIBIT D - Certificate Affirming Lease Commencement Date
EXHIBIT E - Description of Base Building
EXHIBIT F - Base Rent Schedule; Tenant Improvements Reimbursement Rent Schedule
EXHIBIT G - Cleaning Specifications
EXHIBIT H - Form of Subordination, Nondisturbance and Attornment Agreement
EXHIBIT I - Form of Estoppel Certificate
OFFICE LEASE AGREEMENT
THIS OFFICE LEASE AGREEMENT (this "LEASE") is dated as of the 8th day
of December 2000, by and between CHASE TOWER ASSOCIATES, L.L.C., a Delaware
limited liability company ("LANDLORD"), and CAPITALSOURCE FINANCE LLC, a
Delaware limited liability company ("TENANT").
ARTICLE I
DEFINITIONS
1.1 Building: a twelve (12) story building containing
approximately two hundred eighteen thousand eight hundred ninety-seven (218,897)
square feet of office rentable area and two hundred twenty-eight thousand five
hundred (228,500) square feet of total rentable area as of the date hereof and
located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇.
1.2 Premises: approximately sixteen thousand seven hundred
ninety-nine (16,799) square feet of rentable area located on the twelfth (12th)
floor of the Building, as more particularly designated on Exhibit A.
1.3 Lease Term: one hundred twenty (120) months.
1.4 Anticipated Possession Delivery Date: August 1, 2001.
1.5 Base Rent: Six Hundred Forty-Six Thousand Seven Hundred
Sixty-One and 50/100 Dollars ($646,761.50) for the first Lease Year, divided
into twelve (12) equal monthly installments of Fifty-Three Thousand Eight
Hundred Ninety-Six and 79/100 Dollars ($53,896.79) for the first Lease Year.
1.6 Base Rent Annual Escalation Percentage: Three percent (3%),
except with respect to Lease Year 6, at which time the then Base Rent shall be
increased by an amount equal to the product of (i) Two Dollars ($2.00)
multiplied by (ii) the rentable square footage of the Premises, that is,
Thirty-Three Thousand Five Hundred Ninety-Eight Dollars ($33,598.00), which
$33,598.00 is hereinafter referred to as the "SIXTH LEASE YEAR ESCALATION
AMOUNT," as shown on Exhibit E hereto.
1.7 Operating Charges Base Year: Calendar year 2002.
1.8 Real Estate Taxes Base Year: Calendar year 2002.
1.9 Security Deposit Amount: Three Hundred Twenty-Three Thousand
Three Hundred Eighty and 75/100 Dollars ($323,380.75), subject to increase as
provided in Section 11.5 hereof.
1.10 Brokers: Insignia/ESG, Inc., as agent of Landlord, and The
▇▇▇▇▇ Group, LTD., as agent of Tenant.
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1.11 Tenant Notice Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇
▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ until Tenant has commenced beneficial use of the
Premises, and at the Premises, after Tenant has commenced beneficial use of the
Premises.
1.12 Landlord Notice Address: Chase Tower Associates, L.L.C., c/o
The JBG Companies, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇ , Attention: Ms. ▇▇▇▇▇▇ ▇▇▇▇▇▇, with a copy to: ▇▇▇▇▇▇▇▇▇▇ DeLorme &
▇▇▇▇▇, P.C., ▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, Attention:
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇, Esq.
1.13 Landlord Payment Address: Chase Tower Associates, L.L.C. and
delivered to TrizecHahn Management Services LLC at Bank of America, at a post
office box to be determined by Landlord, of which Tenant shall be given written
notice.
1.14 Building Hours: 7:00 a.m. to 7:00 p.m. on Monday through
Friday (excluding legal holidays) and 9:00 a.m. to 1:00 p.m. on Saturday
(excluding legal holidays), and such other hours, if any, as Landlord from time
to time determines. As of the date of this Lease, the legal holidays observed by
Landlord are the dates on which the federal government observes New Year's Day,
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ Day, Washington's Birthday (President's Day), Memorial Day,
Independence Day, Labor Day, Columbus Day, Veteran's Day, Thanksgiving Day and
Christmas Day; provided, however, that Landlord retains the right, in its sole
discretion, to increase or to decrease the legal holidays which it observes;
provided, however, that in the event that at any time the lease of any other
office tenant in the Building excludes any of the foregoing holidays as a legal
holiday, such holiday shall also be excluded as a legal holiday from this
Section 1.14 during the period that it is excluded as a legal holiday from such
other tenant's lease.
1.15 Guarantor(s): Intentionally omitted.
1.16 Complex: that certain complex [of which the Building, the
Land, a retail building comprising approximately twenty-two thousand (22,000)
rentable square feet and the land upon which it is constructed are a part] known
as Chase Tower, and including all easements, rights, and appurtenances thereto
(including private streets, storm detention facilities, and any other service
facilities).]
1.17 Parking Permits: Thirty (30).
ARTICLE II
PREMISES
2.1 Landlord leases the Premises to Tenant and Tenant leases the
Premises from Landlord for the term and upon the conditions and covenants set
forth in this Lease. Tenant will have the non-exclusive right to use (a) the
common and public areas of the Building and (b) subject to such requirements
(other than the payment of any fee therefor) and limitations as Landlord, in its
sole and absolute discretion, may impose, the telephone room located on the
twelfth (12th) floor of the Building. Except as may otherwise be expressly
provided in this Lease, the lease of the Premises does not include the right to
use the roof, mechanical rooms, electrical closets, janitorial closets, parking
areas or other non-common or non-public areas of the Building.
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2.2 The rentable area in the Building and in the Premises shall be
determined by Landlord's architect in accordance with the Building Owners and
Managers Association International Standard Method for Measuring Floor Area in
Office Buildings, ANSI/BOMA Z65.1-1996. Landlord shall have the option,
exercisable by written notice to Tenant at any time during the first one hundred
eighty (180) days of the Term, to have the rentable floor area of the Premises
remeasured by Landlord's architect in the manner described above or any
successor thereto irrespective of whether any option to expand or contract the
Premises is exercised by Tenant. Upon such remeasurement by the Landlord's
architect, Landlord may, at its option, give Tenant written notice of the
rentable floor area so determined, in which event the rentable area as thus
remeasured shall be deemed to be the rentable floor area of the Premises for all
purposes of this Lease, all Rent theretofore paid by Tenant to Landlord during
the Term shall be retroactively adjusted, and any deficiency shall be paid by
Tenant to Landlord within thirty (30) days after Landlord's notice to Tenant
setting forth the rentable floor area of the Premises.
ARTICLE III
TERM
3.1 All of the provisions of this Lease shall be in full force and
effect from and after the date first above written. The Lease Term shall
commence on the Lease Commencement Date specified in Section 3.2. If the Lease
Commencement Date is not the first day of a month, then the Lease Term shall be
the period set forth in Section 1.3 plus the partial month in which the Lease
Commencement Date occurs. The Lease Term shall also include any properly
exercised renewal or extension of the term of this Lease which is specifically
provided for in this Lease.
3.2 The "LEASE COMMENCEMENT DATE" shall be the later of (a)
November 1, 2001 or (b) the ninetieth (90th) day following the date on which
Landlord delivers possession of the Premises to Tenant with those portions of
the base Building which are located within the Premises having been
substantially completed by Landlord, as certified to Landlord by Landlord's
architect; provided, however, that if Tenant commences its business operations
in the Premises on a date which is earlier than the date which is determinable
pursuant to the foregoing clauses (a) and (b), then the Lease Commencement Date
shall be such date as Tenant commences its business operations in the Premises.
Promptly after the Lease Commencement Date is ascertained, Landlord and Tenant
shall execute the certificate confirming the Lease Commencement Date attached to
this Lease as Exhibit D.
The base building shall be constructed by Landlord substantially in
accordance with the description attached hereto as Exhibit E and made a part
hereof.
3.3 It is presently anticipated that the Premises will be
delivered to Tenant on or about the Anticipated Possession Delivery Date;
provided, however, that if Landlord does not deliver possession of the Premises
by such date, Landlord shall not have any liability whatsoever except as
hereinafter provided, and this Lease shall not be rendered void or voidable, as
a result thereof.
Notwithstanding the foregoing, in the event that (A) Landlord
does not deliver possession of the Premises to Tenant with those portions of the
base Building which are located within the Premises having been substantially
completed by Landlord on or before August 1,
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2001, and (B) the Lease Commencement Date has not occurred under this Lease on
or before November 1, 2001 for reasons other than the failure of Tenant to
expeditiously commence and diligently pursue the completion of Tenant's Work (as
hereinafter defined in Section 9.1 hereof) then, subject to the occurrence of
all of the conditions set forth in this Section 3.3, Landlord shall credit or
pay to Tenant (as hereinafter provided) the "Existing Sublease Holdover Premium
Amount" (as hereinafter defined). "EXISTING SUBLEASE HOLDOVER PREMIUM AMOUNT"
shall mean an amount equal to the difference between (a) the amount paid by
Tenant as base rent and premiums or penalties, or both, each month under that
certain Sublease Agreement dated as of November 1, 2000, by and between Tenant,
as subtenant thereunder, and Health Care Financial Partners REIT, as sublandlord
thereunder (the "EXISTING SUBLANDLORD"), for premises subleased to Tenant at
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇▇▇▇▇▇, ▇.▇. (the "EXISTING SUBLEASE"),
solely for obligations of Tenant first arising under the Existing Sublease with
respect to base rent for the period commencing on November 1, 2001 and
continuing through and including the day preceding the Lease Commencement Date
under this Lease and (b) the amount which was payable by Tenant as base rent
under the Existing Sublease for October 2001, subject to the following
conditions: (i) this Lease shall be non-contingent, binding on both parties and
in full force and effect according to its terms; (ii) no Event of Default by
Tenant, nor any circumstance with which the giving of notice, the passage of
time, or both would constitute an Event of Default, shall then exist under this
Lease; (iii) Landlord shall have received from Tenant a copy of a written
receipt from the Existing Sublandlord (or other reasonable written proof, as
determined by Landlord in its sole but reasonable discretion) evidencing the
receipt by the Existing Sublandlord from Tenant of amounts paid by Tenant as
base rent and any holdover penalties or premium under the Existing Sublease or
any combination thereof; (iv) the Existing Sublease shall not have been modified
between the date of execution of this Lease and the Lease Commencement Date
under this Lease; and (v) the Lease Commencement Date as to the entire Premises
under this Lease shall have occurred and Tenant shall be in occupancy of the
Premises, shall be conducting its business operations therein and shall have
commenced paying Base Rent under this Lease. If all of the foregoing conditions
have been satisfied, the Existing Sublease Holdover Premium Amount shall be
credited or paid by Landlord to Tenant as follows, with the choice between the
options set forth in the following clauses (x) and (y) to be made by Landlord in
its sole and absolute discretion: (x) either Landlord shall pay the full amount
of the Existing Sublease Holdover Premium Amount to Tenant within forty-five
days following the Lease Commencement Date under this Lease or (y) Landlord
shall credit to the first installment(s) of Base Rent coming due under this
Lease the full amount of the Existing Sublease Holdover Premium Amount;
provided, however, that in the event that this Lease is terminated by Landlord
following a casualty to the Building or a condemnation thereof, Landlord shall
pay to Tenant, within ninety (90) days following the date of Landlord's notice
to Tenant that it has thus terminated this Lease, the amount of the Existing
Sublease Holdover Premium Amount which has been incurred by Tenant during the
period commencing on November 1, 2001 and ending on the thirtieth (30th) day
following the date of delivery by Landlord to Tenant of Landlord's termination
notice.
Notwithstanding anything to the contrary set forth in this
Section 3.3, in the event that Tenant receives from the Existing Sublandlord or
any other source any refund, credit or other reimbursement of any amount paid by
Tenant to the Existing Sublandlord as a holdover premium, holdover penalty, any
other form of compensation paid by Tenant with respect to its holdover tenancy
or any combination of the foregoing pursuant to the Existing
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Sublease, then, in either such event, either the amount to be credited by
Landlord or payable by Landlord under this Section 3.3 (if not theretofore
credited or paid under this Section 3.3) shall be reduced in an amount equal to
that portion of such refund, credit or other reimbursement which is equal to the
amount of the Existing Sublease Holdover Premium Amount which was paid by
Landlord to Tenant or credited by Landlord towards Base Rent hereunder, or
Tenant shall reimburse Landlord (if theretofore paid by Landlord under this
Section 3.3) in an amount equal to the amount of such refund or credit, on the
seventh (7th) business day following the date of Tenant's receipt of such refund
or credit.
3.4 "LEASE YEAR" shall mean a period of twelve (12) consecutive
months commencing on the Lease Commencement Date, and each successive twelve
(12) month period thereafter; provided, however, that if the Lease Commencement
Date is not the first day of a month, then the second Lease Year shall commence
on the first day of the month in which the first anniversary of the Lease
Commencement Date occurs.
3.5 Landlord hereby grants to CapitalSource Finance LLC, a
Delaware limited liability company, and any "successor entity" (as hereinafter
defined in Section 7.2) or "RELATED ENTITY" (as hereinafter defined in Section
7.2) (collectively, for the purposes of this Section 3.5, "TENANT") the
conditional right, exercisable at Tenant's option, to renew the term of this
Lease for one (1) five-year term (the "RENEWAL TERM"). If exercised, and if the
conditions applicable thereto have been satisfied, the Renewal Term shall
commence immediately following the end of the initial Lease Term provided in
Sections 1.3 and 3.1 of this Lease. The right of renewal herein granted to
Tenant shall be subject to, and shall be exercised in accordance with, the
following terms and conditions:
(a) Tenant shall exercise its right of renewal with
respect to the Renewal Term by giving Landlord written notice of such
election not later than nine (9) months prior to the expiration of the
initial Lease Term, and, if Tenant gives Landlord written notice of
such election earlier than the date which is fifteen (15) months prior
to the expiration of the initial Lease Term (the "FIFTEEN MONTH
THRESHOLD DATE") then the procedure which is hereinafter set forth for
determining annual base rent during the Renewal Term shall not commence
until the Fifteen Month Threshold Date. The parties shall have thirty
(30) days after Landlord's timely receipt of such notice in which to
agree on annual base rent payable during the Renewal Term which would
equal the prevailing market rent. Among the factors to be considered by
the parties during such negotiations in determining the prevailing
market rent shall be the general office rental market in Chevy Chase,
Maryland, the rental rates then being quoted by Landlord to comparable
tenants for comparable space in the Building, and the rents being
charged, and such tenant concessions (if any) as are then being offered
to similar tenants for similar office space in multi-tenanted,
multi-story, first-class office buildings in Chevy Chase, Maryland (it
being understood and agreed that the consideration of such factors by
the parties during such negotiations and determination of the
prevailing market rent shall not be deemed to necessarily mean that all
or any of such concessions shall in fact be made available to Tenant
during the Renewal Term). If during such thirty (30) day period the
parties agree on such base rent, escalation factor and additional
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rent payable during each year of the Renewal Term, then they shall
promptly execute an amendment to this Lease stating the rent so agreed
upon. If during such thirty (30) day period the parties are unable, for
any reason whatsoever, to agree on such base rent, escalation factor
and additional rent payable, then within five (5) days thereafter the
parties shall each appoint an independent real estate broker or real
estate salesperson who shall be licensed in the State of Maryland and
who specializes in the field of commercial office space leasing in the
Chevy Chase, Maryland market and has at least ten (10) years of
experience. Such two individuals shall each determine within ten (10)
days after their appointment such base rent, escalation factor and
additional rent (to be not less than the minimums specified in this
Section 3.5). If such individuals do not agree on such items, but the
higher of such two values is not more than one hundred five percent
(105%) of the lower of them, then the prevailing market rent shall be
deemed to be the average of the two values. If the higher of such two
values is more than one hundred five percent (105%) of the lower of
them, then the two brokers shall jointly appoint a third broker or real
estate salesperson within ten (10) days after the second of the two
determinations described above has been rendered. The third broker or
real estate salesperson shall independently make his determination of
the prevailing market rent within ten (10) days after his appointment.
The highest and the lowest determinations of value among the three
brokers or real estate salespeople shall be disregarded and the
remaining determination shall be deemed to be the prevailing market
rent and shall be final and conclusive. Landlord and Tenant shall each
bear the cost of its broker or real estate salesperson and shall share
equally the cost of the third broker or real estate salesperson. Upon
determination of the base rent, escalation factor and additional rent
payable pursuant to this Section, the parties shall promptly execute an
amendment to this Lease stating the rent so determined.
(b) If Tenant's renewal notice is not given timely, then
Tenant's right of renewal shall lapse and be of no further force or
effect.
(c) If Tenant is in default under this Lease on the date
Tenant sends a renewal notice (or if such notice is sent on a date
which is earlier than the Fifteen Month Threshold Date, then on such
Fifteen Month Threshold Date, as well) or on the date that the Renewal
Term is to commence, then, at Landlord's election, the Renewal Term
shall not commence and the term of this Lease shall expire at the
expiration of the initial term of this Lease.
(d) Tenant's right .of renewal under this Section 3.5 may
be exercised only by Tenant and may not be exercised by any transferee,
sublessee or assignee of Tenant other than as hereinabove provided in
this Section 3.5.
(e) If on the date that Tenant sends a renewal notice (or
if such notice is sent on a date which is earlier than the Fifteen
Month Threshold Date, then on such Fifteen Month Threshold Date, as
well) or on the date that the Renewal Term is to commence, more than
eight thousand (8,000) square feet of rentable area of the Premises has
been subleased or assigned, except to a successor entity
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and/or related entity (as each of such terms is defined in Section 7.2
hereof), or if this Lease has been terminated with respect to more than
eight thousand (8,000) square feet of rentable area of the Premises,
then Tenant's rights pursuant to this Section shall lapse and be of no
further force or effect.
ARTICLE IV
BASE RENT
4.1 From and after the Lease Commencement Date, Tenant shall pay
the Base Rent in equal monthly installments in advance on the first day of each
month during a Lease Year. On the first day of the second and each succeeding
Lease Year, the Base Rent in effect shall be increased by an amount equal to the
product of (a) the Base Rent Annual Escalation Percentage, multiplied by (b) the
Base Rent in effect immediately before the increase, calculated on a per square
foot basis and without regard to any rental abatement, allowance or other
concession granted by Landlord during such Lease Year, which Base Rent per
square foot shall be as set forth on Exhibit F attached hereto; provided,
however, that on the first day of the sixth (6th) Lease Year, the Base Rent in
effect shall be increased by the Sixth Lease Year Escalation Amount (in lieu of
being increased by the Base Rent Escalation Percentage), as set forth on Exhibit
F attached hereto.
4.2 Concurrently with Tenant's execution of this Lease, Tenant
shall pay an amount equal to one (1) monthly installment of the Base Rent
payable during the first Lease Year, which amount shall be credited toward the
monthly installment of the Base Rent payable for the first full calendar month
of the Lease Term. If the Lease Commencement Date is not the first day of a
month, then the Base Rent from the Lease Commencement Date until the first day
of the following month shall be prorated on a per diem basis at the rate of
one-thirtieth (1/30th) of the monthly installment of the Base Rent payable
during the first Lease Year, and Tenant shall pay such prorated installment of
the Base Rent on the Lease Commencement Date.
4.3 All sums payable by Tenant under this Lease, whether or not
stated to be Base Rent, additional rent or otherwise, shall be paid to Landlord
in legal tender of the United States, without setoff, deduction (except as
specifically provided herein) or demand, at the Landlord Payment Address, or to
such other party or such other address as Landlord may designate in writing.
Landlord's acceptance of rent after it shall have become due and payable shall
not excuse a delay upon any subsequent occasion or constitute a waiver of any of
Landlord's rights hereunder. Except as otherwise provided in this Lease, any
additional rent or other sum owed by Tenant to Landlord (other than Base Rent),
and any cost, expense, damage or liability incurred by Landlord for which Tenant
is liable, shall be considered additional rent payable pursuant to this Lease to
be paid by Tenant no later than ten (10) days after the date Landlord notifies
Tenant of the amount thereof. If any sum payable by Tenant under this Lease is
paid by check which is returned due to insufficient funds, stop payment order,
or otherwise, then: (a) such event shall be treated as a failure to pay such sum
when due; and (b) in addition to all other rights and remedies of Landlord
hereunder, Landlord shall be entitled (i) to impose, as additional rent, a
returned check charge of Fifty Dollars ($50.00) to cover Landlord's
administrative expenses and overhead for processing, and (ii) to require that
all future payments be remitted by wire transfer, money
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order, or cashier's or certified check for the twelve (12) months following the
month in which the check is returned to Landlord.
4.4 Landlord and Tenant agree that no rental or other payment for
the use or occupancy of the Premises is or shall be based in whole or in part on
the net income or profits derived by any person or entity from the Building or
the Premises. Tenant further agrees that it will not enter into any sublease,
license, concession or other agreement for any use or occupancy of the Premises
which provides for a rental or other payment for such use or occupancy based in
whole or in part on the net income or profits derived by any person or entity
from the Premises so leased, used or occupied. Nothing in the foregoing
sentence, however, shall be construed as permitting or constituting Landlord's
approval of any sublease, license, concession, or other use or occupancy
agreement not otherwise approved by Landlord in accordance with the provisions
of Article VII.
ARTICLE V
INCREASES IN OPERATING EXPENSES AND REAL ESTATE TAXES
5.1 For the purposes of this Article V, the term "BUILDING" shall
be deemed to include the site upon which the Building is constructed and all
associated easements (which site is sometimes referred to herein as the "LAND").
Landlord shall prorate the common expenses and costs for insurance premiums and
with respect to the garage serving the Complex, as well as Real Estate Taxes for
the Complex if not separately assessed against the Building and the Land with
respect to each such building or parcel of land in the Complex in such manner as
Landlord, in its sole but not arbitrary judgment, shall determine.
5.2 Commencing on the first anniversary of the Lease Commencement
Date, Tenant shall pay as additional rent Tenant's proportionate share of the
amount by which Operating Expenses [as defined in Section 5.2(a) hereof] for
each calendar year falling entirely or partly within the Lease Term exceed a
base amount (the "OPERATING CHARGES BASE AMOUNT") equal to the Operating
Expenses incurred during the Operating Charges Base Year. Tenant's proportionate
share with respect to Operating Expenses shall be that percentage which is equal
to a fraction, the numerator of which is the number of square feet of rentable
area in the Premises, and the denominator of which is the number of square feet
of office rentable area from time to time in the Building (excluding storage,
roof and garage space).
(a) "OPERATING EXPENSES" shall mean the sum of all
expenses actually incurred by Landlord in the ownership, operation, management,
maintenance, repair and cleaning of the Building, including, but not limited to,
the following: (1) electricity, gas, water, HVAC, sewer, telephone services and
other utility charges of every type and nature; (2) premiums and other charges
for insurance and deductibles under such insurance policies with respect to
repairs and replacements which would otherwise qualify as Operating Expenses
under this Section 5.2(a); (3) management fees and personnel costs of the
Building; (4) costs of service and maintenance contracts; (5) charges for
janitorial, trash removal and cleaning services and supplies furnished to the
Building; (6) any business, professional and occupational license tax or fee
payable by Landlord with respect to the Building; (7) reasonable reserves for
replacements, repairs and contingencies, the expenses of which would be
includable in
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Operating Expenses pursuant to this Section 5.2.(a); (8) costs of snow removal;
(9) costs incurred by Landlord during the Lease Term for the acquisition and/or
replacement of telecommunications systems, energy management systems, life
safety systems, equipment, systems or machinery intended to reduce Operating
Expenses or the rate of Operating Expenses from what it otherwise would have
been in the absence of such acquisition or replacement, or to comply with
insurance requirements or the requirements of any Laws (as hereinafter defined
in Section 6.1), or any other improvements or replacements made in order to
promote the efficient operation of the Building; provided however that Landlord
shall amortize such costs over the useful life of any such expenditure (as
reasonably determined by Landlord), together with interest thereon at twelve
percent (12%) per annum; (10) that portion of expenses incurred by Landlord in
the operation of the Complex which are allocable to the Building; and (11) any
other expense actually incurred by Landlord in owning, managing, maintaining,
repairing, operating or cleaning the Building, whether or not provided on the
Lease Commencement Date, and after excluding or deducting therefrom, as
applicable, any rebate received by Landlord of amounts which would otherwise be
(or had been) included in Operating Expenses. Operating Expenses shall not
include: (i) principal or interest payments on any Mortgages (as defined in
Section 21.1); (ii) leasing commissions or legal fees with respect to the
negotiation of leases; (iii) capital expenditures, except as specified above;
(iv) the costs of special services and utilities separately paid by particular
tenants of the Building; (v) costs which are reimbursed to Landlord by insurers
or by governmental authorities in eminent domain proceedings; (vii) advertising
for vacant space in the Building; (viii) the cost of tenant improvements; (ix)
amounts paid to any person, firm or corporation related to or otherwise
affiliated with Landlord which are in excess of arm's-length competitive prices
paid in the Washington, D.C. metropolitan area for the services or goods
provided; (x) costs of operation of the parking garage at the Complex (but not
of the maintenance or repair of same by Landlord, as opposed to any parking
operator), except that the costs of paving, power sweeping and power washing
shall be excluded from Operating Expenses in all events; (xi) ground rent,
except for any portion thereof which is utilized for the payment of Real Estate
Taxes, insurance premiums or the like; (xii) sums paid by Landlord as an
indemnification of any party and damages, fines, late charges, penalties or
interest for Landlord's violation of laws, provided that Tenant's act or
omission has not contributed to any such damages, fines, late charges, penalties
or interest and Tenant was then current in the payment of all Rent due and
payable under this Lease; (xiii) depreciation of the Building or equipment
therein, except as hereinabove provided with respect to certain capital
expenditures; (xiv) advertising and promotional expenditures; (xv) amounts which
have been reimbursed for any purpose, except through a tenant's payment of its
proportionate share of the Operating Expenses; (xvi) expenses in connection with
services or other benefits of a type or quantity beyond the scope of this Lease
which are not made available to Tenant but which are provided to one or more
other tenants or occupants of the Building; (xvii) any and all costs arising
from the presence of Hazardous Materials (as hereinafter defined) in or about
the Premises, the Building or the Land which are present on the date this Lease
is executed; (xviii) costs (including, in connection therewith, all attorneys'
fees and costs of settlement judgments and payments in lieu thereof) arising
from claims, disputes or potential disputes in connection with potential or
actual claims, litigation or arbitrations pertaining to monetary disputes with
tenants or the sale, financing, refinancing or leasing of the Building; (xix)
costs associated with the operation of the business of the partnership or entity
which constitutes Landlord, as the same are distinguished from the costs of
9
operation of the Building, including partnership accounting and legal matters;
(xx) costs of defending any lawsuits with any mortgagee (except as the actions
of Tenant may be in issue); (xxi) costs of selling, syndicating, financing,
mortgaging or hypothecating any of Landlord's interest in the Building; (xxii)
costs of any disputes between Landlord and its employees (if any) not engaged in
Building operations, disputes of Landlord with Building management, or outside
fees paid in connection with monetary disputes with other tenants; (xxiii) costs
of initial construction of the Building and the costs of preparing, replacing or
otherwise correcting defects (but not the costs of repair for normal wear and
tear) in the construction of the Building or any of its components; (xxiv) "Tap
Fees" or one-time lump sum sewer or water connection fees for the Building
payable in connection with the initial construction of the Building; (xxv)
rentals for any space in the Building which is set aside for conference
facilities, storage facilities or exercise facilities; and (xxvi) wages and
salaries for off-site employees (other than employees who are based off-site but
who provide some or all of their services at the Building with respect to the
operation, management, maintenance, repair and cleaning of the Building) and
employees at the Building above the level of Property Manager.
(b) If the average occupancy rate for the Building during
any calendar year (including the Operating Charges Base Year) is less than one
hundred percent (100%), or if any tenant is separately paying for (or does not
require) electricity or janitorial services furnished to its premises, then
Operating Expenses for such year shall be deemed to include all additional
expenses, as reasonably estimated by Landlord, which would have been incurred
during such year if such average occupancy rate had been one hundred percent
(100%) and if Landlord paid for electricity and janitorial services furnished to
such premises. In no event shall the provisions of this paragraph be used to
enable Landlord to collect from the tenants of the Building more than one
hundred percent (100%) of the costs and expenses incurred by Landlord in owning,
managing, maintaining, repairing, operating and cleaning the Building and the
Land.
(c) Tenant shall make estimated monthly payments to
Landlord on account of the amount by which Operating Expenses that are expected
to be incurred during each calendar year (or portion thereof) would exceed the
Operating Charges Base Amount. On or about the beginning of the Lease Term and
on or about the beginning of each calendar year thereafter, Landlord may submit
a statement setting forth Landlord's reasonable estimate of such excess and
Tenant's proportionate share thereof. Tenant shall pay to Landlord on the first
day of each month following receipt of such statement, until Tenant's receipt of
the succeeding annual statement, an amount equal to one-twelfth (1/12) of each
such share (estimated on an annual basis). From time to time during any calendar
year, Landlord may revise Landlord's estimate and adjust Tenant's monthly
payments to reflect Landlord's revised estimate. Within approximately one
hundred twenty (120) days after the end of each calendar year, or as soon
thereafter as is feasible, Landlord shall submit a statement showing (1)
Tenant's proportionate share of the amount by which Operating Expenses incurred
during the preceding calendar year exceeded the Operating Charges Base Amount,
and (2) the aggregate amount of Tenant's estimated payments made on account of
Operating Expenses during such year. If such statement indicates that the
aggregate amount of such estimated payments exceeds Tenant's actual liability,
then Landlord shall credit the net overpayment toward Tenant's next estimated
payment(s) pursuant to this Section. If such statement indicates that Tenant's
actual liability exceeds the aggregate amount of such estimated payments, then
Tenant shall pay the amount of such excess as additional rent within thirty (30)
days after Tenant's receipt of such statement.
10
(d) Tenant shall have the right to review, examine and/or
audit (collectively, "AUDIT"), Landlord's books, records and accounts of, or
pertaining to, increases in Operating Expenses ("INCREASED OPERATING EXPENSES")
and increased Real Estate Taxes ("INCREASED REAL ESTATE TAXES"). In order to
exercise such right Tenant must notify Landlord of Tenant's desire to do so
within thirty (30) days after Tenant's receipt of Landlord's statements of
actual Increased Operating Expenses and Increased Real Estate Taxes,
respectively, for the preceding year. Such audit shall be conducted at
Landlord's office in the Washington, D.C. metropolitan area, during normal
business hours, within thirty (30) days after Tenant's notice. Any such audit
shall be made only by Tenant's employees or by an auditor hired by Tenant who is
a Certified Public Accountant ("CPA"), and who is employed on other than a
contingent fee basis. Tenant shall notify Landlord of the results of such audit
in writing. In the event that any such audit reveals an overstatement or
understatement of Tenant's percentage of Increased Operating Expenses or
Tenant's percentage of Increased Real Estate Taxes, or both, for the preceding
year, and such overstatement or understatement as revealed thereby is agreed by
Landlord to be, or is conclusively determined by a court of competent
jurisdiction to be, correct (and all periods for appeal have expired and no
appeal is pending), then Tenant shall pay to Landlord its pro rata share of any
underpayment within thirty (30) days after the date such audit is agreed to by
Landlord or is conclusively determined by a court of competent jurisdiction to
be correct (and all periods for appeal have expired and no appeal is pending),
and Tenant shall have the right to a credit in the amount of Tenant's percentage
of any overpayment. Such credit shall be applied against the Rent next coming
due and payable hereunder. In the event that such audit reveals that Operating
Expenses, Real Estate Taxes, or both were overstated in the amount of five
percent (5%) or more, then Tenant shall have the right to receive from Landlord
a reimbursement of the reasonable costs and expenses incurred by Tenant in
connection with such audit of Operating Expenses or Real Estate Taxes or both.
In the event that such audit reveals that Operating Expenses, Real Estate Taxes
or both were not overstated or were overstated in an amount less than five
percent (5%), then Landlord shall have the right to receive from Tenant a
reimbursement of costs and expenses incurred by Landlord in connection with such
audit of Operating Expenses, Real Estate Taxes or both, including, but not
limited to, compensation for that portion, if any, of the time of Landlord's
property management personnel which is in excess of five (5) hours.
Tenant hereby agrees (i) that none of Tenant's members,
shareholders, directors, officers or partners or Office Manager, Administrator
or similarly titled personnel shall, or shall authorize anyone else to, initiate
any discussions with, or respond to any requests for information from, any
person as to the existence, status or results of any such audit and (ii) that
Tenant shall instruct Tenant's auditors and attorneys and their employees to
keep the results of such audit in strictest confidence; provided, however, that
Landlord hereby agrees that nothing set forth above shall preclude Tenant from
disclosing the results of such audit (A) in any judicial or quasi-judicial
proceeding, or pursuant to court order or discovery request, or (B) to any
current or prospective assignee or sublessee of Tenant, or (C) to any agent,
representative or employee of Landlord who or which requests the same, or (D) to
any mortgagee of the Building, the Land or both, who or which requests the same.
5.3 Commencing on the first anniversary of the Lease Commencement
Date, for each calendar year during the Lease Term, Tenant shall pay as
additional rent Tenant's proportionate share of the amount by which Real Estate
Taxes [as defined in Section 5.3(a) hereof] for each
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calendar year falling entirely or partly within the Lease Term exceed a base
amount (the "REAL ESTATE TAXES BASE AMOUNT") equal to the Real Estate Taxes
incurred during the Real Estate Taxes Base Year, as finally determined, which
shall mean that the Real Estate Taxes for the calendar year at issue are subject
to no further contest or appeal by Landlord or the taxing authority. Tenant's
proportionate share with respect to Real Estate Taxes shall be that percentage
which is equal to a fraction, the numerator of which is the number of square
feet of rentable area in the Premises, and the denominator of which is the
number of square feet of total rentable area from time to time in the Building
(excluding storage, roof and garage space).
(a) "REAL ESTATE TAXES" shall mean (1) all real estate
taxes, vault and/or public space rentals, business district or arena taxes,
front foot benefit charges, special user fees, rates, and assessments (including
general and special assessments, if any), ordinary and extraordinary, foreseen
and unforeseen, which are imposed upon Landlord or assessed against the Building
or the Land or Landlord's personal property used in connection therewith, (2)
any other present or future taxes or governmental charges that are imposed upon
Landlord or assessed against the Building or the Land which are in the nature of
or in substitution for real estate taxes, including any tax levied on or
measured by the rents payable by tenants of the Building, all taxes and
assessments for public improvements or any other purpose and any gross receipts
or receipts or similar taxes, and (3) expenses (including, without limitation,
reasonable attorneys' and consultants' fees and court costs) incurred in
reviewing, protesting or seeking a reduction of real estate taxes, whether or
not such protest or reduction is ultimately successful. Subject to the
foregoing, Real Estate Taxes shall not include any inheritance, estate, gift,
franchise, corporation, net income or net profits tax assessed against Landlord
from the operation of the Building or any personal property tax.
(b) [Intentionally omitted.]
(c) Tenant shall make estimated monthly payments to
Landlord on account of the amount by which Real Estate Taxes that are expected
to be incurred during each calendar year would exceed the Real Estate Taxes Base
Amount. At the beginning of the Lease Term and at the beginning of each calendar
year thereafter, Landlord may submit a statement setting forth Landlord's
reasonable estimate of such amount and Tenant's proportionate share thereof.
Tenant shall pay to Landlord on the first day of each month following receipt of
such statement, until Tenant's receipt of the succeeding annual statement, an
amount equal to one-twelfth (1/12) of such share [estimated on an annual basis
without proration pursuant to Section 5.3(d) hereof]. From time to time during
any calendar year, Landlord may revise Landlord's estimate and adjust Tenant's
monthly payments to reflect Landlord's revised estimate. After the end of each
calendar year Landlord shall submit a statement showing (1) Tenant's
proportionate share of the amount by which Real Estate Taxes incurred during the
preceding calendar year exceeded the Real Estate Taxes Base Amount, and (2) the
aggregate amount of Tenant's estimated payments made during such year. If such
statement indicates that the aggregate amount of such estimated payments exceeds
Tenant's actual liability, then Landlord shall credit the net overpayment toward
Tenant's next estimated payment(s) pursuant to this Section, or, if the Lease
Term has expired at the time of Landlord's issuance of such statement, then
Landlord shall pay to Tenant the proportionate share of such refund to which
Tenant is entitled pursuant to this Section 5.3 within thirty (30) days
following Landlord's issuance of such statement. If such statement indicates
that Tenant's actual liability exceeds the aggregate amount of such estimated
payments,
12
then Tenant shall pay the amount of such excess as additional rent within thirty
(30) days after Tenant's receipt of such statement.
(d) If the Lease Term commences or expires on a day other
than the first day or the last day of a calendar year, respectively, then
Tenant's liabilities pursuant to this Article for such calendar year shall be
apportioned by multiplying the respective amount of Tenant's proportionate share
thereof for the full calendar year by a fraction, the numerator of which is the
number of days during such calendar year falling within the Lease Term, and the
denominator of which is three hundred sixty-five (365).
5.4 Tenant Improvements Reimbursement Rent (as defined in Section
9.1 hereof) shall be due and payable by Tenant in consecutive equal monthly
installments, commencing on the Lease Commencement Date, the amount of which
shall be as set forth on Exhibit F attached hereto, at the times, in the manner,
at the place, and upon the same terms and conditions as apply to payments of
Base Rent under this Lease; provided, however, that (i) there shall be no
abatement of Tenant Improvements Reimbursement Rent and (ii) in the event that
this Lease is terminated by Landlord in accordance with the provisions of this
Lease at any time prior to the expiration of the initial ten (10) year Lease
Term hereof, the then remaining balance of the Tenant Improvements Reimbursement
Rent shall be immediately due and payable by Tenant to Landlord. Notwithstanding
the foregoing, Tenant shall have the right to pay to Landlord all Tenant
Improvements Reimbursement Rent in a lump sum at any time during the Lease Term,
in which case interest thereon shall be paid only to such date of payment in
full.
ARTICLE VI
USE OF PREMISES
6.1 Tenant shall use and occupy the Premises solely for general
(non-medical and non-governmental) office purposes for a business and in a
manner that is consistent with the first-class image of the Building and which
is in compliance with the requirements of this Article VI and is compatible with
the other uses within, and the terms of other leases with respect to, the
Building, and for no other use or purpose. Tenant shall not use or occupy the
Premises for any unlawful purpose, or in any manner that will violate the
certificate of occupancy for the Premises or the Building or that will
constitute waste, nuisance or unreasonable annoyance to Landlord or any other
tenant or user of the Building (in each case, in Landlord's reasonable
judgment), or in any manner that will increase the number of parking spaces
required for the Building or its full occupancy as required by law. Tenant shall
comply with all present and future laws (including, without limitation, the
Americans with Disabilities Act (the "ADA") and the regulations promulgated
thereunder, as the same may be amended from time to time), ordinances (including
without limitation, zoning ordinances and land use requirements), regulations,
orders and recommendations (including, without limitation, those made by any
public or private agency having authority over insurance rates) (collectively,
"LAWS") concerning the use, occupancy and condition of the Premises and all
machinery, equipment, furnishings, fixtures and improvements therein, all of
which shall be complied with in a timely manner at Tenant's sole expense.
Notwithstanding the foregoing, Landlord shall be responsible for compliance of
the Common Areas, Land and base building components within the Premises (except
to the extent of any Alterations made by Tenant) with all applicable Laws,
including, but not limited to, the ADA,
13
throughout the Lease Term. If any such Law requires an occupancy or use permit
or license for the Premises or the operation of the business conducted therein
(including a certificate of occupancy or nonresidential use permit), then Tenant
shall obtain and keep current such permit or license at Tenant's expense and
shall promptly deliver a copy thereof to Landlord. Use of the Premises is
subject to all covenants, conditions and restrictions of record. Tenant shall
not use any space in the Building for the sale of goods to the public at large
or for the sale at auction of goods or property of any kind. Tenant shall not
conduct any operations, sales, promotions, advertising or special events in, on
or about the Complex outside of the Premises. Tenant shall have the right to
contest any attempted enforcement by any governmental agency of any of the Laws
against Tenant, and provided that Tenant is diligently pursing such contest,
then Tenant shall not be deemed to be in default under this Lease with respect
to any compliance with such Laws unless and until such contest has been finally
adjudicated and is not subject to any further contest or appeal.
6.2 Tenant shall pay before delinquency any business, rent or
other taxes or fees that are now or hereafter levied, assessed or imposed upon
Tenant's use or occupancy of the Premises, the conduct of Tenant's business at
the Premises, or Tenant's equipment, fixtures, furnishings, inventory or
personal property. If any such tax or fee is enacted or altered so that such tax
or fee is levied against Landlord or so that Landlord is responsible for
collection or payment thereof, then Tenant shall pay as additional rent the
amount of such tax or fee.
6.3 Tenant shall not cause or permit any Hazardous Materials to be
generated, used, released, stored or disposed of in or about the Building, the
Land, or the Complex, provided that Tenant may use and store reasonable
quantities of standard cleaning materials and office supplies as may be
reasonably necessary for Tenant to conduct normal general office use operations
in the Premises provided the same are handled, stored and disposed of in
accordance with all Laws. At the expiration or earlier termination of this
Lease, Tenant shall surrender the Premises to Landlord free of Hazardous
Materials which are brought into the Premises by Tenant or any Invitees (as
hereinafter defined) by Tenant and free of any Environmental Default on the part
of Tenant. "HAZARDOUS MATERIALS" means (a) asbestos and any asbestos containing
material and any substance that is then defined or listed in, or otherwise
classified pursuant to, any Environmental Law or any other applicable Law as a
"HAZARDOUS SUBSTANCE," "HAZARDOUS MATERIAL," "HAZARDOUS WASTE," "INFECTIOUS
WASTE," "TOXIC SUBSTANCE," "TOXIC POLLUTANT" or any other formulation intended
to define, list, or classify substances by reason of deleterious properties such
as ignitability, corrosively, reactivity, carcinogenicity, toxicity,
reproductive toxicity, or Toxicity Characteristic Leaching Procedure (TCLP)
toxicity, (b) any petroleum and drilling fluids, produced waters, and other
wastes associated with the exploration, development or production of crude oil,
natural gas, or geothermal resources, and (c) any petroleum product,
polychlorinated biphenyls, urea formaldehyde, radon gas, radioactive material
(including any source, special nuclear, or by-product material), medical waste,
chlorofluorocarbon, lead or lead-based product, and any other substance whose
presence could be detrimental to the Building, the Land, or the Complex or
hazardous to health or the environment. "ENVIRONMENTAL LAW" means any present
and future Law and any amendments (whether common law, statute, rule, order,
regulation or otherwise), permits and other requirements or guidelines of
governmental authorities applicable to the Building or the Land and relating to
the environment and environmental conditions or to any Hazardous Material.
14
(a) Notwithstanding any termination of this Lease, Tenant
shall indemnify and hold Landlord, its employees and agents harmless from and
against any damage, injury, loss, liability, charge, demand or claim based on or
arising out of the presence or removal of, or failure to remove, Hazardous
Materials generated, used, released, stored or disposed of by Tenant or any
Invitee in or about the Building, whether before or after Lease Commencement
Date. In addition, Tenant shall give Landlord immediate verbal and follow-up
written notice of any actual or threatened Environmental Default, which
Environmental Default Tenant shall cure in accordance with all Environmental
Laws and to the satisfaction of Landlord and only after Tenant has obtained
Landlord's prior written consent, which shall not be unreasonably withheld. An
"ENVIRONMENTAL DEFAULT" means any of the following by Tenant or any Invitee: a
violation of an Environmental Law; a release, spill or discharge of a Hazardous
Material on or from the Premises, the Land or the Building; an environmental
condition requiring responsive action; or an emergency environmental condition.
Upon any Environmental Default, in addition to all other rights available to
Landlord under this Lease, at law or in equity, Landlord shall have the right
but not the obligation to immediately enter the Premises, to supervise and
approve any actions taken by Tenant to address the Environmental Default, and,
if Tenant fails to immediately address same to Landlord's satisfaction, to
perform, at Tenant's sole cost and expense, any lawful action necessary to
address same. If any lender or governmental agency shall require testing to
ascertain whether an Environmental Default is pending or threatened, then Tenant
shall pay the reasonable costs therefor as additional rent. Promptly upon
request, Tenant shall execute from time to time affidavits, representations and
similar documents concerning Tenant's best knowledge and belief regarding the
presence of Hazardous Materials at or in the Building, the Land or the Premises.
(b) In the event that Landlord receives written notice
from a governmental agency of the presence of Hazardous Materials in the
Premises or in any of the Common Areas of the Building which are utilized by
Tenant in a quantity and of a nature that violates any applicable governmental
laws or regulations and that were not introduced to the Building by or on behalf
of Tenant, Landlord shall take such action, if any, as may be required to comply
with such governmental laws or regulations; provided, however, that Landlord
shall have the right to contest any such notice of violation, in which case
Landlord's obligation to cure shall not arise until after the final adjudication
of the validity of the violation notice.
6.4 Landlord at its expense (subject to reimbursement pursuant to
Article V to the extent permitted thereby) shall take steps necessary to comply
with Title III of the ADA to the extent same applies directly to the common
areas of the Building as a whole; provided, however, that to the extent any
non-compliance is a result of the use or occupancy of the Premises or any action
or inaction of Tenant or any Invitee (as defined in Article VIII), or if any
improvements made by Landlord to comply with the ADA benefit solely the
Premises, then such compliance shall be at Tenant's cost. Tenant at its sole
cost and expense shall be solely responsible for taking any and all measures
which are required to comply with the ADA concerning the Premises (including
means of ingress and egress thereto) and the business conducted therein. Any
Alterations made or constructed by Tenant for the purpose of complying with the
ADA or which otherwise require compliance with the ADA shall be done in
accordance with this Lease; provided, that Landlord's consent to such
Alterations shall not constitute either Landlord's assumption, in whole or in
part, of Tenant's responsibility for compliance with the ADA, or
15
representation or confirmation by Landlord that such Alterations comply with the
provisions of the ADA.
6.5 If Landlord receives written notice from a governmental agency
of the presence, in the Premises or in any of the Common Areas of the Building,
of a condition that violates any applicable laws or governmental regulations and
that was not created or caused by or on behalf of Tenant, Landlord shall timely
take such action, if any, as may be required to comply with such law or
governmental regulations; provided, however, that Landlord shall have the right
to contest any such notice or violation, in which case Landlord's obligation to
cure shall not arise until after the final adjudication of the validity of the
violation notice.
ARTICLE VII
ASSIGNMENT AND SUBLETTING
7.1 Tenant shall not assign, transfer or otherwise encumber
(collectively, "ASSIGN") this Lease or all or any of Tenant's rights hereunder
or interest herein, or sublet or permit anyone to use or occupy (collectively,
"SUBLET") the Premises or any part thereof, without obtaining the prior written
consent of Landlord, which consent may be withheld or granted in Landlord's sole
and absolute discretion. No assignment or right of occupancy hereunder may be
effectuated by operation of law or otherwise without the prior written consent
of Landlord. Notwithstanding any of the foregoing to the contrary, provided that
Tenant is not in default under this Lease, and subject to Landlord's rights and
Tenant's obligations pursuant to Sections 7.4 and 7.5 below, Landlord shall not
unreasonably withhold its consent to any proposed subletting of all or any
portion of the Premises. Without limiting the generality of the immediately
preceding sentence, and except as hereinafter provided in this Section 7.l, it
is specifically agreed that it shall be reasonable for Landlord to withhold its
consent if (i) the proposed subtenant is engaged in a business, or the Premises
will be used in a manner, that is inconsistent with the first-class image of the
Building; or (ii) Landlord is not satisfied with the financial capacity of the
proposed subtenant to pay the subrent provided for in the proposed sublease; or
(iii) the proposed use of the Premises is not in compliance with Article VI or
is not compatible with the other uses within, and the terms of other leases with
respect to, the Building; or (iv) the initial Tenant does not remain fully
liable as a primary obligor for the payment of all rent and other charges
payable by Tenant under this Lease and for the performance of all other
obligations of Tenant under this Lease; or (v) the proposed subtenant is a
governmental or quasi-governmental agency; or (vi) the proposed use of the
Premises shall increase the pedestrian traffic in the Building above the level
of traffic generated by normal and customary office usage; provided, however,
that if the Proposed Sublet or Assignment Space, as hereinafter defined (when
aggregated with all other space subleased by Tenant) comprises not more than
eight thousand (8,000) square feet of rentable area of the Premises, exclusive
of any space which is then subleased to or has then been assigned to a related
entity or a successor entity) (as each of such terms is defined in Section 7.2
hereof), it is specifically agreed that it shall be reasonable for Landlord to
withhold its consent if and only if (a) the proposed use of the Premises is not
in compliance with Article VI or is not compatible with the other uses within,
and the terms of other leases with respect to, the Building, (b) the proposed
subtenant has a demonstrated unsuitability to sublease the proposed subleased
premises and to occupy space in the Building, and (c) Tenant is not then in
default in the performance of any of its obligations under this Lease, and for
no other reason. Any attempted
16
assignment, transfer or other encumbrance of this Lease or all or any of
Tenant's rights hereunder or interest herein, and any sublet or permission to
use or occupy the Premises or any part thereof not in accordance with this
Article VII shall be void and of no force or effect. Any assignment or
subletting, Landlord's consent thereto, or Landlord's collection or acceptance
of rent from any assignee or subtenant shall not be construed either as waiving
or releasing Tenant from any of its liabilities or obligations under this Lease
as a principal and not as a guarantor or surety, or as relieving Tenant or any
assignee or subtenant from the obligation of obtaining Landlord's prior written
consent to any subsequent assignment or subletting. As security for this Lease,
Tenant hereby collaterally assigns to Landlord the rent due from any assignee or
subtenant of Tenant. For any period during which an Event of Default on the part
of Tenant is continuing, Tenant hereby authorizes each such assignee or
subtenant to pay said rent directly to Landlord upon receipt of notice from
Landlord specifying same. Landlord's collection of such rent shall not be
construed as an acceptance of such assignee or subtenant as a tenant. Tenant
shall not mortgage, pledge, hypothecate or encumber (collectively "MORTGAGE")
this Lease without Landlord's prior written consent, which consent may be
granted or withheld in Landlord's sole and absolute discretion. To reimburse
Landlord for expenses incurred by Landlord in connection with Tenant's request
for Landlord to give its consent to any assignment, subletting, or mortgage,
Tenant shall pay to Landlord (a) an administrative fee of one thousand dollars
($1,000) and (b) Landlord's reasonable attorney's fees actually incurred;
provided, however, that the administrative fee described in clause (a) of this
sentence shall not apply to any sublease with respect to which the Proposed
Sublet or Assignment Space (when all aggregated with all other space subleased
by Tenant) comprises not more than eight thousand (8,000) square feet of
rentable area of the Premises nor to any sublease to any successor entity,
related entity or both (as such terms are defined in Section 7.2 hereof). Any
sublease, assignment or mortgage shall, at Landlord's option, be effected on
forms approved by Landlord in its reasonable judgment. Tenant shall deliver to
Landlord a fully-executed copy of each agreement evidencing a sublease,
assignment or mortgage within ten (10) days after Tenant's execution thereof and
such agreement shall be of no force or effect until Landlord has executed a
consent in form and substance acceptable to Landlord in its reasonable
discretion and in accordance with the provisions of this Section 7.1.
7.2 If Tenant is a partnership, then any event (whether voluntary,
concurrent or related) resulting in a dissolution of Tenant, any withdrawal or
change (whether voluntary, involuntary or by operation of law) of partners
owning a controlling interest in Tenant (including each general partner), or any
structural or other change having the effect of limiting the liability of the
partners to Landlord shall be deemed a voluntary assignment of this Lease
subject to the provisions of this Article. If Tenant is a corporation (or a
partnership with a corporate general partner), then any event (whether
voluntary, concurrent or related) resulting in a dissolution, merger,
consolidation or other reorganization of Tenant (or such corporate general
partner), or the sale or transfer or relinquishment of the interest of
shareholders who, as of the date of this Lease, own a controlling interest of
the capital stock of Tenant (or such corporate general partner), shall be deemed
a voluntary assignment of this Lease subject to the provisions of this Article;
provided, however, that the foregoing portion of this sentence shall not apply
to corporations whose stock is traded through a national or regional exchange or
over-the-counter market or issued pursuant to an initial or any secondary public
offering. If Tenant is a limited liability company, then any dissolution of
Tenant or a withdrawal or change, whether voluntary, involuntary or by operation
of law, of members owning a controlling interest in Tenant shall be
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deemed a voluntary assignment of this Lease. In addition, a transfer of all or
substantially all of the assets of Tenant, either by merger, consolidation, or
otherwise shall be deemed to be an assignment under this Article VII. Whether
Tenant is a partnership, corporation or any other type of entity, then at the
option of Landlord, a sale of all or substantially all of its assets, a change
in its name of which Landlord has not received prior notice, or a conversion
into any other type of entity shall also be deemed a voluntary assignment of
this Lease. Notwithstanding anything contained in this Article VII to the
contrary, provided that Tenant is not in default hereunder, Tenant may, upon at
least fifteen (15) days prior written notice to Landlord but without Landlord's
prior written consent and without being subject to Landlord's rights and
Tenant's obligations set forth in Sections 7.4, 7.5 and 7.6 below, assign or
transfer its entire interest in this Lease or sublease the entire Premises or
any portion thereof (a) to a corporation or other business entity (herein
sometimes referred to as a "SUCCESSOR ENTITY") into or with which Tenant or
CapitalSource Holding LLP shall be merged or consolidated, or to which
substantially all of the assets of Tenant may be transferred, provided that such
successor corporation shall have a creditworthiness, net worth and liquidity
factor which are all at least equal to the net worth and liquidity factor of
Tenant as of the date hereof, and provided that the successor entity shall
assume in writing all of the obligations and liabilities of Tenant under this
Lease; or (b) to a corporation or other business entity (herein sometimes
referred to as a "RELATED ENTITY") which shall, directly or indirectly, control,
be controlled by or be under common control with Tenant. In the event of any
such assignment or subletting, Tenant shall remain fully liable as a primary
obligor for the payment of all rent and other charges required hereunder and for
the performance of all obligations to be performed by Tenant hereunder. For
purposes of clause (b) above, "CONTROL" shall be deemed to be ownership of more
than fifty percent (50%) of the stock or other voting interest of the controlled
corporation or other business entity. Together with Tenant's notice to Landlord
pursuant to this Section 7.2, Tenant shall submit to Landlord sufficient
information regarding the transaction as is reasonably necessary for Landlord to
confirm that the transaction meets the qualifications set forth in this Section
7.2.
7.3 If at any time during the Lease Term Tenant desires to assign,
sublet or mortgage all or part of this Lease or the Premises, then in connection
with Tenant's request to Landlord for Landlord's consent thereto, Tenant shall
give notice to Landlord in writing ("TENANT'S REQUEST NOTICE") containing: the
identity of the proposed assignee, subtenant or other party and a description of
its business; the terms of the proposed assignment, subletting or other
transaction; the commencement date of the proposed assignment, subletting or
other transaction (the "PROPOSED SUBLEASE OR ASSIGNMENT COMMENCEMENT DATE"); the
area proposed to be assigned, sublet or otherwise encumbered (the "PROPOSED
SUBLET OR ASSIGNMENT SPACE"); the most recent financial statement or other
evidence of financial responsibility of such proposed assignee, subtenant or
other party; and a certification executed by Tenant and such party stating
whether or not any premium or other consideration is being paid for the
assignment, sublease or other transaction. Notwithstanding the foregoing, in the
event that Tenant desires to determine whether Landlord will exercise its right
to terminate this Lease with respect to the Proposed Sublet or Assignment Space
in accordance with the provisions of Section 7.4 hereof, Tenant shall have the
right to submit a request to Landlord without including therein the information
described in the immediately preceding sentence of this Section 7.3 and instead
including therein the following information: (i) the number of square feet of
rentable area which Tenant intends to sublease or, if it intends to assign its
interest in this Lease, then the fact that the proposed transaction would be an
assignment, and (ii) the term of the proposed sublease with respect to the
18
Proposed Sublet or Assignment Space. Landlord shall then have thirty (30) days
following its receipt of Tenant's notice (such notice being hereinafter referred
to as "TENANT'S SPECIAL REQUEST NOTICE") to advise Tenant whether Landlord would
exercise its right to terminate this Lease with respect to the Proposed Sublet
or Assignment Space. If within such 30-day period following Landlord's receipt
of Tenant's Special Request Notice, Landlord advises Tenant that Landlord
intends to exercise its recapture right pursuant to Section 7.4, then the date
of termination of this Lease with respect to the Proposed Sublet or Assignment
Space shall be the ninetieth (90th) day following the date on which Landlord
delivers its response to Tenant. If Landlord does not deliver a response to
Tenant's Special Request Notice within such 30-day period, or if Landlord
advises Tenant in writing within such 30-day period that Landlord does not
intend to exercise its termination right pursuant to Section 7.4 hereof, then,
if Tenant submits a Tenant's Special Request Notice to Landlord to assign its
interest in this Lease or to sublease the Proposed Sublet or Assignment Space,
Landlord shall not have the right to terminate this Lease with respect to such
proposed assignment or sublease, except that if (i) Tenant's Request Notice
which proposes a specific proposed assignment or sublease is not received by
Landlord within one hundred twenty (120) days following the date of Landlord's
delivery of its response to Tenant's Special Request Notice, or (ii) there is a
change of more than five hundred (500) square feet of rentable area from the
number of square feet of rentable area described in Tenant's Special Request
Notice, or a change in the form of the proposed transaction (that is, whether a
sublease or assignment) or a change in the term of a proposed sublease such that
the term is more than three (3) months shorter or longer than the term as
described in Tenant's Special Request Notice, then Landlord's right to terminate
this Lease, or to terminate this Lease with respect to the Proposed Sublet or
Assignment Space (as the case may be) in accordance with the provisions of
Section 7.4 hereof, shall then again apply fully to Tenant's Request Notice.
7.4 If the term of the proposed sublease (including all applicable
renewal terms) constitutes ninety percent (90%) or more of the remaining Lease
Term and if the Proposed Sublet or Assignment Space (when aggregated with all
other space subleased by Tenant) comprises more than eight thousand (8,000)
square feet of rentable area of the Premises, then Landlord shall have the right
in its sole and absolute discretion to terminate this Lease with respect to the
Proposed Sublet or Assignment Space by sending Tenant written notice of such
termination within thirty (30) days after Landlord's receipt of Tenant's Request
Notice. If the Proposed Sublet or Assignment Space does not constitute the
entire Premises but constitutes more than eight thousand (8,000) square feet of
rentable area of the Premises and Landlord exercises its option to terminate
this Lease with respect to the Proposed Sublet or Assignment Space, then (a)
Tenant shall tender the Proposed Sublet or Assignment Space to Landlord on the
Proposed Sublease or Assignment Commencement Date and such space shall
thereafter be deleted from the Premises, and (b) as to that portion of the
Premises which is not part of the Proposed Sublet or Assignment Space, this
Lease shall remain in full force and effect except that Base Rent and additional
rent shall be reduced pro rata. The cost of any construction required to permit
the operation of the Proposed Sublet or Assignment Space separate from the
balance of the Premises shall be paid by Tenant to Landlord as additional rent
hereunder. If the Proposed Sublet or Assignment Space constitutes the entire
Premises and Landlord elects to terminate this Lease, then Tenant shall tender
the Proposed Sublet or Assignment Space to Landlord, and this Lease shall
terminate, on the Proposed Sublease or Assignment Commencement Date. If the term
of the proposed sublease (including all applicable renewal teens) constitutes
less than ninety percent (90%) of the remaining Lease Term and if the Proposed
Sublet or Assignment Space
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(when aggregated with all other space subleased by Tenant) comprises more than
eight thousand (8,000) square feet of rentable area of the Premises, exclusive
of any space sublet or assigned to a related entity or to a successor entity,
then Landlord shall have the right in its sole and absolute discretion to
terminate this Lease with respect to the Proposed Sublet or Assignment Space for
the term of the proposed sublease by sending Tenant written notice of such
termination within thirty (30) days after Landlord's receipt of Tenant's Request
Notice.
7.5 If any sublease or assignment (whether by operation of law or
otherwise, including without limitation an assignment pursuant to the provisions
of the Bankruptcy Code or any other Insolvency Law), other than a sublease or
assignment to a related entity or successor entity (as to which this Section 7.5
shall not apply), provides that the subtenant or assignee thereunder is to pay
any amount in excess of the rental and other charges due under this Lease, then
whether such excess be in the form of an increased monthly or annual rental, a
lump sum payment, payment for the sale, transfer or lease of Tenant's fixtures,
leasehold improvements, furniture and other personal property, or any other form
(and if the subleased or assigned space does not constitute the entire Premises,
the existence of such excess shall be determined on a pro-rata basis), Tenant
shall pay to Landlord fifty percent (50%) of any such excess or other premium
applicable to the sublease or assignment (after deducting Tenant's reasonable,
out-of-pocket costs incurred in subleasing [consisting of attorneys' fees,
leasehold improvements and allowances for same, advertising expenses, moving
allowances, any other monetary allowances (other than rent abatement) and
brokerage commissions], but not deducting any costs attributable to vacancy
periods or "DOWNTIME"), which amount shall be paid by Tenant to Landlord (unless
such payment is otherwise waived, in whole or in part, by Landlord in writing)
as additional rent upon such terms as shall be specified by Landlord and in no
event later than ten (10) days after any receipt thereof by Tenant; provided,
however, that the provisions of this sentence shall not apply unless the
Proposed Sublet or Assignment Space (when aggregated with all other space
subleased by Tenant) comprises more than eight thousand (8,000) square feet of
rentable area of the Premises, exclusive of any space sublet or assigned to a
related entity or to a successor entity; further provided, that Landlord shall
have the right, which shall be exercisable in its sole and absolute discretion,
to advise Tenant that the provisions of this Section 7.5 shall not apply to one
or more proposed subleases or assignments. Acceptance by Landlord of any
payments due under this Section shall not be deemed to constitute approval by
Landlord of any sublease or assignment, nor shall such acceptance waive any
rights of Landlord hereunder. Landlord shall have the right to inspect and audit
Tenant's books and records relating to any sublease or assignment.
7.6 All restrictions and obligations imposed pursuant to this
Lease on Tenant shall be deemed to extend to any subtenant, assignee, licensee,
concessionaire or other occupant or transferee, and Tenant shall cause such
person to comply with such restrictions and obligations. Any assignee shall be
deemed to have assumed obligations as if such assignee had originally executed
this Lease and at Landlord's request shall execute promptly a document
confirming such assumption. Each sublease is subject to the condition that if
the Lease Term is terminated or Landlord succeeds to Tenant's interest in the
Premises by voluntary surrender or otherwise, at Landlord's option the subtenant
shall be bound to Landlord for the balance of the term of such sublease and
shall attorn to and recognize Landlord as its landlord under the then executory
terms of such sublease or, at Landlord's sole option, the subtenant shall
execute a direct lease with Landlord on Landlord's then-current standard form.
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ARTICLE VIII
MAINTENANCE AND REPAIRS
8.1 Except as specifically provided in this Lease, Tenant, at
Tenant's sole cost and expense, shall promptly make all repairs, perform all
maintenance, and make all replacements in and to the Premises that are necessary
or desirable to keep the Premises in first class condition and repair, in a
clean, safe and tenantable condition, and otherwise in accordance with all Laws
and the requirements of this Lease. Tenant shall maintain all fixtures,
furnishings and equipment located in, or exclusively serving, the Premises in
clean, safe and sanitary condition, shall take good care thereof and make all
required repairs and replacements thereto; provided, however, that this sentence
shall not be deemed to obligate Tenant to maintain, repair or replace any of the
restrooms located on the twelfth (12th) floor of the Building, such
responsibility being solely that of Landlord, all costs of which shall be
included in Operating Expenses to the extent permitted by Section 5.2(a) hereof.
Tenant shall give Landlord prompt written notice of any defects or damage to the
structure of, or equipment or fixtures in, the Building or any part thereof.
Tenant shall suffer no waste or injury to any part of the Premises, and shall,
at the expiration or earlier termination of the Lease Term, surrender the
Premises in an order and condition equal to or better than their order and
condition on the Lease Commencement Date, except for ordinary wear and tear and
as otherwise provided in Section 9.3 and Article XVII. Except as otherwise
provided in Article XVII, all injury, breakage and damage to the Premises and to
any other part of the Building or the Land caused by any act or omission of any
invitee, agent, employee, subtenant, assignee, contractor, client, family
member, licensee, customer or guest of Tenant (collectively, "INVITEES") or
Tenant, shall be repaired by and at Tenant's expense, except that Landlord shall
have the right at Landlord's option to make any such repair and to charge Tenant
for all costs and expenses incurred in connection therewith.
8.2 Except as otherwise provided in this Lease, Landlord shall
(subject to reimbursement pursuant to Article V) keep the exterior and demising
walls, load bearing elements, foundations, roof and common areas that form a
part of the Building, and the building standard mechanical, electrical, HVAC and
plumbing systems, pipes and conduits that are provided by Landlord in the
operation of the Building (collectively, the "BUILDING STRUCTURE AND SYSTEMS"),
clean and in good operating condition and, promptly after becoming aware of any
item needing repair, will make repairs thereto. Notwithstanding any of the
foregoing to the contrary: (a) maintenance and repair of special tenant areas,
facilities, finishes and equipment (including, but not limited to, any special
fire protection equipment, telecommunications and computer equipment,
kitchen/galley equipment, air-conditioning equipment serving the Premises only
and all other furniture, furnishings and equipment of Tenant and all
Alterations) shall be the sole responsibility of Tenant and shall be deemed not
to be a part of the Building Structure and Systems; and (b) Landlord shall have
no obligation to make any repairs brought about by any gross negligence or any
act of willful misconduct on the part of Tenant or any of its Invitees.
ARTICLE IX
ALTERATIONS
9.1 The original improvement of the Premises shall be accomplished
in accordance with the provisions of this Section 9.1 and, except as specified
in Section 3.2 hereof with respect
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to the delivery of possession of the Premises to Tenant by Landlord, Landlord is
under no obligation to make any structural or other alterations, decorations,
additions, improvements or other changes (collectively, "ALTERATIONS") in or to
the Premises or the Building except as (if any) or as otherwise expressly
provided in this Lease. Notwithstanding the foregoing, Landlord shall make
available (i) for the performance of Tenant's Work (as hereinafter defined) and
(ii) in an amount not to exceed twenty-five percent (25%) of the Tenant
Allowance (as hereinafter defined), for space planning, architectural and
engineering services related thereto, legal fees and relocation expenses
relating to Tenant's move to the Premises, Tenant's internal security system and
equipment or rental thereof for use in the Premises, as well as Landlord's
coordination fee, as hereinafter described, an allowance (the "TENANT
ALLOWANCE") in an amount equal to the product of (a) Thirty Dollars ($30.00)
multiplied by (b) the number of square feet of rentable area comprising the
Premises. Landlord shall pay the Tenant Allowance to Tenant in increments, in
each case following Tenant's completion of Tenant's Work (as hereinafter
defined) and Landlord's receipt from Tenant of (i) invoices reasonably
evidencing work or services performed with respect to the portion of Tenant's
Work (as hereinafter defined) for which disbursement of a portion of the Tenant
Allowance is being requested, (ii) receipted bills or other evidence that the
aforesaid invoices for which disbursement of a portion of the Tenant Allowance
is being requested have been paid in full, and (iii) waivers or releases of
liens from each of Tenant's contractors, subcontractors and suppliers in
connection with the work performed or materials supplied as evidenced by the
aforesaid invoices for which disbursement of a portion of the Tenant Allowance
is being requested; provided, however, that in no event shall Tenant have the
right to request a disbursement of the Tenant Allowance more often than once per
month.
If requested by Tenant, Landlord shall make a loan to Tenant in an
amount not to exceed the product of (x) Ten Dollars ($10.00) multiplied by (y)
the number of square feet of rentable area comprising the Premises (such amount
actually provided to Tenant by Landlord being hereinafter referred to as the
"TENANT LOAN") for the same purposes, and subject to the same conditions, as the
Tenant Allowance is made available, pursuant to this Section 9.1 for Tenant's
Work. Tenant shall pay the full amount of the Tenant Loan, together with
interest on the declining balance thereof at the rate of ten percent (10%) per
annum in accordance with the terms of Section 5.4 hereof (such Tenant Loan and
such interest thereon being referred to in this Lease as the Tenant Improvements
Reimbursement Rent).
Tenant shall improve the Premises in accordance with the Tenant's Plans
(as hereinafter defined). Tenant shall submit to Landlord Tenant's final plans
and specifications for improvements to the Premises (the "TENANT'S PLANS"),
which shall be subject to Landlord's prior written approval (the work set forth
in the Tenant's Plans being referred to herein as "TENANT'S WORK") which
approval shall not be unreasonably withheld or delayed with respect to items
which do not affect any of the structural components of the Building, any of the
Building's systems or the exterior aesthetics of the Building. From and after
the date of Landlord's approval of the Tenant's Plans, any changes to the
Tenant's Plans shall not be binding unless approved in writing by both Landlord
and Tenant. Landlord's approval of the Tenant's Plans shall constitute approval
of Tenant's design concept only and shall in no event be deemed a representation
or warranty by Landlord as to whether the Tenant's Plans comply with any and all
legal requirements applicable to the Tenant's Plans and Tenant's Work.
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In the performance of Tenant's Work, Tenant shall comply with all
applicable laws, codes and regulations. Tenant shall obtain all permits,
certificates and other governmental approvals from all governmental entities
having jurisdiction thereover which are necessary for the prosecution and
completion of Tenant's Work. Tenant's Work shall include, but not be limited to,
the cost of all permits and governmental inspections, all architectural and
engineering fees, the preparation and delivery to Landlord of a complete set of
"AS-BUILT" plans showing Tenant's Work, in hard copy and an acceptable
electronic version thereof (which "as-built" plans shall be delivered to
Landlord not later than the tenth (10th) day following the completion of
Tenant's Work).
Prior to commencing Tenant's Work, Tenant shall provide to Landlord the
name and address of each contractor and subcontractor which Tenant intends to
employ to perform Tenant's Work, the use of which subcontractors and contractors
shall be subject to Landlord's prior written approval, which shall not be
unreasonably withheld, conditioned or delayed if (1) the contractor or
subcontractor is properly licensed, (2) Landlord has had no prior experience
with such contractor or subcontractor which was unsatisfactory to Landlord or
any of Landlord's affiliates and (3) Landlord knows of no prior unsatisfactory
experience that a third party has had with such contractor or subcontractor.
Prior to the commencement of any of Tenant's Work, Tenant shall deliver to
Landlord, with respect to each contractor and subcontractor which Tenant intends
to employ to perform any of Tenant's Work, a certificate of insurance from each
such contractor or subcontractor specifying Landlord as a named insured and
evidencing that each such contractor or subcontractor has obtained the insurance
coverages set forth in clause (1), (4), (5) and (6) of Section 13.2 of this
Lease. Said contractors and subcontractors shall also comply with other
reasonable industry requirements of Landlord.
9.2 Tenant shall not make or permit anyone to make any Alterations
in or to the Premises or the Building, without the prior written consent of
Landlord, which consent may be withheld or granted in Landlord's sole and
absolute discretion. Notwithstanding the foregoing, Landlord shall not
unreasonably withhold its consent to any non-structural Alteration which Tenant
may desire to make to the Premises; provided, however, that Landlord shall
retain sole and absolute discretion to withhold its consent to any Alteration,
whether structural or non-structural, which may, in the sole and absolute
judgment of Landlord (i) adversely affect the marketability of the Premises,
(ii) exceed the capacity of, hinder the effectiveness of, interfere with, or
will be connected to the electrical, mechanical, heating, ventilating, air
conditioning, or plumbing systems of the Premises or the Building, or (iii) be
visible from outside the Premises. Notwithstanding the foregoing, Tenant shall
have the right, after providing at least ten (10) days prior written notice to
Landlord, but without the necessity of obtaining Landlord's consent, to
recarpet, repaint, or to make purely "COSMETIC" or "DECORATIVE" non-structural
Alterations in and to the Premises that (I) do not fall within clauses (i)
through (iii) above, (II) do not require the issuance of a building permit, and
(III) with respect to such "COSMETIC" or "DECORATIVE" non-structural Alterations
which consist of work other than repainting or recarpeting, do not cost, when
aggregated with all other Alterations made during the previous twelve (12)
months, more than ten thousand dollars ($10,000.00). Any Alterations made by
Tenant shall be made: (a) in a good, workmanlike, first-class and prompt manner;
(b) using new materials only; (c) by a contractor, on days, at times and under
the supervision of an architect approved in writing by Landlord; (d) in
accordance with plans and specifications prepared by an engineer or architect
reasonably acceptable to Landlord, which plans and
23
specifications shall be approved in writing by Landlord, and all third party
architectural or engineering fees incurred by Landlord in connection therewith
shall be reimbursed by Tenant to Landlord as additional rent to cover Landlord's
administrative expenses and overhead for processing; (e) in accordance with all
Laws and the requirements of any insurance company insuring the Building or any
portion thereof; (f) after having obtained any required consent of the holder of
any Mortgage; (g) after obtaining public liability and worker's compensation
insurance policies approved in writing by Landlord, which policies shall cover
every person who will perform any work with respect to such Alteration; and (h)
upon request, after Tenant has delivered to Landlord documentation reasonably
satisfactory to Landlord evidencing Tenant's financial ability to complete the
Alteration in accordance with the provisions of this Lease. Solely with respect
to the original improvement of the Premises by Tenant which is described in
Section 9.1 hereof, prior to each payment to any contractor, subcontractor,
laborer, or material supplier for all work, labor, and services to be performed
and materials to be furnished in connection with Alterations, Tenant shall
obtain and deliver to Landlord written, waivers of mechanics' and materialmen's
liens (or partial waivers thereof, as applicable) against the Premises and the
Building, which may be conditioned upon payment of a specific amount of money,
from all proposed contractors, subcontractors, laborers and material suppliers
for all work, labor and services performed and materials furnished in connection
with Alterations to the extent the costs thereof have been paid and, at a
minimum, through the previous invoice submitted for payment. If any lien (or a
petition to establish such lien) is filed in connection with any Alteration,
such lien (or petition) shall be discharged by Tenant within ten (10) days
thereafter, at Tenant's sole cost and expense, by the payment thereof or by the
filing of a bond acceptable to Landlord. If Landlord gives its consent to the
making of any Alteration, such consent shall not be deemed to be an agreement or
consent by Landlord to subject its interest in the Premises or the Building to
any liens which may be filed in connection therewith. All Alterations involving
structural, electrical, mechanical or plumbing work, the heating, ventilation
and air conditioning system of the Premises or the Building, and the roof of the
Building shall, at Landlord's election, be performed by Landlord's designated
contractor or subcontractor at Tenant's expense. Whether or not Landlord
performs such work, then Landlord's property manager shall be paid additional
rent in an amount equal to five percent (5%) of the cost of such work which is
other than "cosmetic" or "decorative" non-structural Alterations the cost of
which, when aggregated with all other Alterations made during the previous
twelve (12) months, is not more than Ten Thousand Dollars ($10,000.00), any
recarpeting and any repainting. Promptly after the completion of an Alteration,
Tenant at its expense shall deliver to Landlord three (3) sets of accurate
as-built drawings showing such Alteration in place. Tenant shall reimburse
Landlord, its employees and agents for (as additional rent), and shall
indemnify, defend upon request and hold them harmless from and against all
costs, damages, claims, liabilities, expenses (including attorneys' fees),
losses, penalties and court costs suffered by or claimed against them, directly
or indirectly, based on or arising out of in whole or in part, the construction
or installation of Alterations.
9.3 If any Alterations are made without the prior written consent
of Landlord, Landlord shall have the right at Tenant's expense to remove and
correct such Alterations and restore the Premises and the Building to their
condition immediately prior thereto, or to require Tenant to do the same. All
Alterations to the Premises or the Building made by either party shall
immediately become the property of Landlord and shall remain upon and be
surrendered with the Premises as a part thereof at the expiration or earlier
termination of the Lease Tern; provided,
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however, that (a) if Tenant is not in default under this Lease, then Tenant
shall have the right to remove, prior to the expiration or earlier termination
of the Lease Term, all movable furniture, furnishings and equipment (including
trade fixtures) installed in the Premises solely at the expense of Tenant, and
(b) Tenant shall remove all Alterations and other items in the Premises or the
Building which Landlord designates in writing for removal. Notwithstanding the
foregoing, Tenant, upon submitting its request to Landlord to make Alterations,
shall have the right to request therein that Landlord specify whether and to
what extent Landlord will require Tenant to remove the Alterations in question
at the end of the Term, provided that Tenant refers therein to the provisions of
this Section 9.3. If Tenant shall fail to request such information in its
request to make any Alterations, such right shall be deemed null and void as to
the Alterations in question, and all such Alterations shall thereafter be
subject to the exercise of Landlord's right and to tenant's obligations set
forth in the first sentence of this Section 9.3. If Tenant submits it request
for such information in accordance with the foregoing provisions and Landlord
consents to the Alterations requested, Landlord shall, together with its
consent, specify in writing whether and to what extent it will require Tenant to
remove the Alterations in question at the end of the Term, and if Landlord fails
so to specify, Tenant shall have no further obligation to remove the Alterations
which were the subject of Tenant's request. Landlord shall have the right at
Tenant's expense to repair all damage and injury to the Premises or the Building
caused by such removal or to require Tenant to do the same. If such furniture,
furnishings and equipment are not removed by Tenant prior to the expiration or
earlier termination of the Lease Term, the same shall at Landlord's option
become the property of Landlord and shall be surrendered with the Premises as a
part thereof, provided, however, that Landlord shall have the right at Tenant's
expense to remove from the Premises such furniture, furnishings and equipment
and any Alteration which Landlord designates in writing for removal or to
require Tenant to do the same. If Tenant fails to return the Premises to
Landlord as required by this Section, then Tenant shall pay to Landlord, as
additional rent, all costs (including a construction management fee) incurred by
Landlord in effecting such return.
ARTICLE X
SIGNS
10.1 Landlord will, at Landlord's cost, list Tenant's name in the
Building directory, together with a number of listings on such directory which
is equal to a fraction, the numerator of which is the number of square feet of
rentable area in the Premises and the denominator of which is the number of
square feet of office rentable area in the Building on the Lease Commencement
Date, and Landlord shall provide Building standard signage on one suite entry
door of the Premises. No other sign, advertisement or notice referring to Tenant
shall be inscribed, painted, affixed or otherwise displayed on any part of the
exterior or interior of the Building (including windows and doors) without the
prior written approval of Landlord, which may be granted or withheld in
Landlord's sole and absolute discretion. If any such item that has not been
approved by Landlord is so displayed, then Landlord shall have the right to
remove such item at Tenant's expense or to require Tenant to do the same.
Landlord reserves the right to install and display signs, advertisements and
notices on any part of the exterior or interior of the Building.
Tenant, at Tenant's sole cost and expense, shall have the right to
place signage in the Common Areas of the floor of the Building on which the
Premises are located and on or adjacent
25
to the suite entries to the Premises, in locations mutually agreed upon by
Landlord and Tenant, each acting in their reasonable discretion, the design,
size, quality, and method of fabrication of which shall be subject to the prior
written approval of Landlord, which may be granted or withheld in Landlord's
sole and absolute discretion. In addition, Tenant shall be permitted to place
signage on the outdoor marquee serving the Building, the design, size, quality,
location, color and method of fabrication of which shall all be subject to the
prior written approval of Landlord, which may be granted or withheld in
Landlord's sole and absolute discretion.
ARTICLE XI
SECURITY DEPOSIT
11.1 Simultaneously with Tenant's execution of this Lease, Tenant
shall deposit with Landlord the Security Deposit Amount (as defined in Section
1.9 hereof) as a security deposit which shall be security for the performance by
Tenant of all of Tenant's obligations, covenants, conditions and agreements
under this Lease. Landlord shall not be required to maintain such security
deposit in a separate account. Within approximately thirty (30) days after the
later of the expiration or earlier termination of the Lease Term or Tenant's
vacating the Premises, Landlord shall return such security deposit to Tenant,
together with interest thereon, the amount of which interest shall be the amount
which is earned by Landlord with respect to the Security Deposit Amount in the
interest-bearing account in which Landlord shall maintain such Security Deposit
Amount, which account shall be determined by Landlord in its sole and absolute
discretion, less such portion thereof as Landlord shall have appropriated to
satisfy any of Tenant's obligations, or any default by Tenant, under this Lease.
If there shall be any default under this Lease by Tenant, then Landlord shall
have the right, but shall not be obligated, to use, apply or retain all or any
portion of the security deposit for the payment of any (a) Base Rent, additional
rent or any other sum as to which Tenant is in default, or (b) amount Landlord
may spend or become obligated to spend, or for the compensation of Landlord for
any losses incurred, by reason of Tenant's default (including, but not limited
to, any damage or deficiency arising in connection with the reletting of the
Premises). If any portion of the security deposit is so used or applied, then
within three (3) business days after Landlord gives written notice to Tenant of
such use or application, Tenant shall deposit with Landlord cash in an amount
sufficient to restore the security deposit to the original Security Deposit
Amount, and Tenant's failure to do so shall constitute an Event of Default under
this Lease.
11.2 Tenant shall have the right to deliver to Landlord an
unconditional, irrevocable letter of credit in substitution for the cash
security deposit, subject to the following terms and conditions. Such letter of
credit shall be (a) in form and substance satisfactory to Landlord in its sole
discretion; (b) at all times equal to the Security Deposit Amount (as defined in
Section 1.9 hereof and as may be adjusted pursuant to Section 11.5 hereof), and
shall permit multiple draws without a corresponding reduction in the amount of
the letter of credit (which requirement may also be satisfied by Tenant
delivering to Landlord, within five (5) business days following the draw by
Landlord on the letter of credit, either (i) a replacement letter of credit in
the full amount of the Security Deposit Amount or (ii) an additional letter of
credit in the amount which the existing letter of credit was reduced as a result
of the draw by Landlord upon such letter of credit); (c) issued by a commercial
bank acceptable to Landlord in its sole and absolute discretion from time to
time and located in the Washington, D.C. metropolitan area and capable
26
of being drawn upon in the Washington, D.C. metropolitan area; (d) made payable
to, and expressly transferable and assignable at no charge by, the owner from
time to time of the Building (which transfer/assignment shall be conditioned
only upon the execution of a written document in connection therewith); (e)
payable at sight upon presentment to a local branch of the issuer of a simple
sight draft or certificate stating that Tenant is in default under this Lease
and the amount that Landlord is owed in connection therewith; (f) of a term not
less than one year; and (g) at least thirty (30) days prior to the then current
expiration date of such letter of credit, either (1) renewed (or automatically
and unconditionally extended) from time to time through the ninetieth (90th) day
after the expiration of the Lease Term, or (2) replaced with cash equal to the
Security Deposit Amount. Notwithstanding anything in this Lease to the contrary,
any cure or grace periods set forth in Section 19.1 shall not apply to any of
the foregoing, and, specifically, if Tenant fails to timely comply with the
requirements of subsection (g) above, then Landlord shall have the right to
immediately draw upon the letter of credit without notice to Tenant and apply
the proceeds to the security deposit. Each letter of credit shall be issued by a
commercial bank that has a credit rating with respect to certificates of
deposit, short term deposits or commercial paper of at least P-2 (or equivalent)
by ▇▇▇▇▇'▇ Investor Service, Inc., or at least A-2 (or equivalent) by Standard &
Poor's Corporation, and shall be otherwise acceptable to Landlord in its sole
and absolute discretion. If the issuer's credit rating is reduced below P-2 (or
equivalent) by ▇▇▇▇▇'▇ Investors Service, Inc. or below A-2 (or equivalent) by
Standard & Poor's Corporation, or if the financial condition of such issuer
changes in any other materially adverse way, then Landlord shall have the right
to require that Tenant obtain from a different issuer a substitute letter of
credit that complies in all respects with the requirements of this Section 11.2,
and Tenant's failure to obtain such substitute letter of credit within ten (10)
days following Landlord's written demand therefor (with no other notice or cure
or grace period being applicable thereto, notwithstanding anything in this Lease
to the contrary) shall entitle Landlord to immediately draw upon the then
existing letter of credit in whole or in part, without notice to Tenant. In the
event the issuer of any letter of credit held by Landlord is placed into
receivership or conservatorship by the Federal Deposit Insurance Corporation, or
any successor or similar entity, then, effective as of the date such
receivership or conservatorship occurs, said letter of credit shall be deemed to
not meet the requirements of this Section 11.2, and, within ten (10) days
thereof, Tenant shall replace such letter of credit with other collateral
acceptable to Landlord in its sole and absolute discretion (and Tenant's failure
to do so shall, notwithstanding anything in this Lease to the contrary,
constitute an Event of Default for which there shall be no notice or grace or
cure periods being applicable thereto other than the aforesaid ten (10) day
period). Any failure or refusal of the issuer to honor the letter of credit
shall be at Tenant's sole risk and shall not relieve Tenant of its obligations
hereunder with respect to the security deposit.
11.3 In the event of any purchase or other transfer of Landlord's
interest in the Property (other than to a Mortgagee) Landlord shall transfer the
security deposit to the purchaser or other transferee of Landlord's interest in
the Property, then Tenant shall look only to such purchaser or transferee for
the return of the security deposit, and Landlord shall be released from all
liability to Tenant for the return of such security deposit. Tenant acknowledges
that the holder of any Mortgage shall not be liable for the return of any
security deposit made by Tenant hereunder unless such holder actually receives
such security deposit. Tenant shall not pledge, mortgage, assign or transfer the
Security Deposit or any interest therein.
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11.4 Within ten (10) days after Landlord's request, Tenant shall
submit to Landlord an audited financial statement covering the preceding
calendar year, which has been prepared in accordance with generally accepted
accounting principles by an independent certified public accountant.
11.5 In the event that Tenant does not demonstrate to Landlord's
satisfaction that, as of October 1, 2001, (i) Tenant has actually loaned at
least One Hundred Million Dollars ($100,000,000.00) to other business entities
and (ii) Tenant has had a positive cash flow in an amount equal to at least Two
Million Five Hundred Thousand Dollars ($2,500,000.00) for the period commencing
on July 1, 2001 and concluding on September 30, 2001, then, not later than
October 11, 2001, Tenant shall deposit with Landlord as an additional security
deposit the amount of Three Hundred Twenty-Three Thousand Three Hundred Eighty
and 75/100 Dollars ($323,380.75) (the "ADDITIONAL SECURITY DEPOSIT"), which
Additional Security Deposit, together with the initial amount comprising the
Security Deposit Amount, as set forth in Section 1.9 hereof, that is, a combined
amount of Six Hundred Forty-Six Thousand Seven Hundred Sixty-One and 50/100
Dollars ($646,761.50) shall thereupon constitute the Security Deposit Amount for
all purposes of this Lease.
ARTICLE XII
INSPECTION
12.1 At all times Tenant shall permit Landlord, its agents and
representatives, and the holder of any Mortgage, to enter the Premises without
charge therefor and without diminution of the rent payable by Tenant in order to
examine, inspect or protect the Premises and the Building, to make such
alterations and/or repairs as in the sole and absolute judgment of Landlord may
be deemed necessary or desirable, or to exhibit the same (i) during the last
twelve (12) months of the Lease Term, to brokers and prospective tenants, and
(ii) at any other time, to lenders, purchasers and others. Except in the event
of an emergency, Landlord shall provide advance notice to Tenant and endeavor to
minimize disruption to Tenant's normal business operations in the Premises in
connection with any such entry.
ARTICLE XIII
INSURANCE
13.1 Tenant shall not conduct or permit to be conducted any
activity, or place or permit to be placed any equipment or other item in or
about the Premises or the Building, which will in any way increase the rate of
fire insurance or other insurance on the Building. If any increase in the rate
of fire insurance or other insurance is due to any activity, equipment or other
item of Tenant, then (whether or not Landlord has consented to such activity,
equipment or other item) Tenant shall pay as additional rent due hereunder the
amount of such increase; provided, however, that Tenant shall not be obligated
to pay the amount of such increase if Tenant is then using the Premises solely
for the use permitted by this Lease and in accordance with all of the provisions
of this Lease and all applicable Laws and governmental regulations. The
statement of any applicable insurance company or insurance rating organization
(or other organization exercising similar functions in connection with the
prevention of fire or the correction of
28
hazardous conditions) that an increase is due to any such activity, equipment or
other item shall be conclusive evidence thereof.
13.2 Throughout the Lease Term, Tenant shall obtain and maintain
(1) commercial general liability insurance (written on an occurrence basis)
including contractual liability coverage insuring the obligations assumed by
Tenant under this Lease (including those set forth in Sections 6.3 and 15.2),
premises and operations coverage, broad form property damage coverage and
independent contractors coverage, and containing an endorsement for personal
injury, (2) business interruption insurance, (3) all-risk property insurance,
(4) comprehensive automobile liability insurance (covering automobiles owned by
Tenant, if any), (5) workers' compensation insurance, and (6) employer's
liability insurance. Such commercial general liability insurance shall be in
minimum amounts typically carried by prudent tenants engaged in similar
operations, but in no event shall be in an amount less than Two Million Dollars
($2,000,000) combined single limit per occurrence with a Four Million Dollar
($4,000,000) annual aggregate. Such business interruption insurance shall be in
minimum amounts typically carried by prudent tenants engaged in similar
operations, but in no event shall be in an amount less than the Base Rent then
in effect during any Lease Year. Such property insurance shall be in an amount
not less than that required to replace all of the original tenant improvements
installed in the Premises pursuant to Exhibit B, all Alterations and all other
contents of the Premises (including, without limitation, Tenant's trade
fixtures, decorations, furnishings, equipment and personal property). Such
automobile liability insurance shall be in an amount not less than One Million
Dollars ($1,000,000) bodily injury and property damage for each accident. Such
workers' compensation insurance shall carry minimum limits as defined by the law
of the jurisdiction in which the Building is located (as the same may be amended
from time to time) but not less than Five Hundred Thousand Dollars ($500,000)
for each accident. Such employer's liability insurance shall be in an amount not
less than One Million Dollars ($1,000,000) for each accident, One Million
Dollars ($1,000,000) disease-policy limit, and One Million Dollars ($1,000,000)
disease-each employee.
(a) All such insurance shall: (1) be issued by a company
that is licensed to do business in the jurisdiction in which the Building is
located, that has been approved in advance by Landlord and that has a rating
equal to or exceeding A:XI from Best's Insurance Guide; (2) name Landlord, the
managing agent of the Building and the holder of any Mortgage as additional
insureds/loss payees (as applicable); (3) contain an endorsement that such
policy shall remain in full force and effect notwithstanding that the insured
may have waived its right of action against any party prior to the occurrence of
a loss (Tenant hereby waiving its right of action and recovery against and
releasing Landlord and its employees and agents from any and all liabilities,
claims and losses for which they may otherwise be liable to the extent Tenant is
covered by insurance carried or would have been covered by insurance it is
required to carry under this Lease); (4) provide that the insurer thereunder
waives all right of recovery by way of subrogation against Landlord, its
partners, agents, employees, and representatives, in connection with any loss or
damage covered by such policy; (5) be acceptable in form and content to
Landlord; (6) be primary and non-contributory; (7) contain an endorsement for
cross liability (or an equivalent provision) and severability of interests, if
there are multiple named insureds on such insurance; and (8) provide for a
certificate of insurance with standard language whereby the insurer undertakes
to notify the certificate holder in writing thirty (30) days prior to
cancellation, failure to renew, reduction of amount of insurance or change in
coverage. No such policy shall
29
contain any deductible provision except as otherwise approved in writing by
Landlord, which approval shall not be unreasonably withheld. Landlord reserves
the right from time to time to require Tenant to obtain higher minimum amounts
or different types of insurance if it becomes customary for other landlords of
first-class office buildings in the Washington, D.C., metropolitan area to
require similar sized tenants in similar industries to carry insurance of such
higher minimum amounts or of such different types of insurance. Tenant shall
deliver a certificate (on ▇▇▇▇▇ Form 27) of all such insurance and receipts
evidencing payment therefor (and, upon request, copies of all required insurance
policies, including endorsements and declarations) to Landlord concurrently with
Tenant's execution of this Lease and at least annually thereafter. Tenant shall
give Landlord immediate notice in case of fire, theft or accident in the
Premises, and in the case of fire, theft or accident in the Building if
involving Tenant, its agents, employees or Invitees. Neither the issuance of any
insurance policy required under this Lease nor the minimum limits specified
herein shall be deemed to limit or restrict in any way Tenant's liability
arising under or out of this Lease.
13.3 Landlord agrees to carry and maintain all-risk property
insurance (with replacement cost coverage) covering the Building and Landlord's
property therein in an amount required by its insurance company to avoid the
application of any coinsurance provision and as Landlord reasonably deems
appropriate, based upon coverages carried by landlords of comparable buildings
in ▇▇▇▇▇▇▇▇▇▇ County, Maryland. Landlord hereby waives its right of recovery
against Tenant and releases Tenant from any and all liabilities, claims and
losses for which Tenant may otherwise be liable to the extent Landlord is
covered by property insurance therefor. Landlord shall use reasonable efforts to
secure a waiver of subrogation endorsement from its insurance carrier. Landlord
also agrees to carry and maintain commercial general liability insurance in
limits it reasonably deems appropriate (but in no event less than the limits
required of Tenant pursuant to Section 13.2) and as Landlord reasonably deems
appropriate, based upon coverages carried by landlords of comparable buildings
in ▇▇▇▇▇▇▇▇▇▇ County, Maryland.
ARTICLE XIV
SERVICES AND UTILITIES
14.1 Subject to Tenant's performance of its obligations specified
in this Lease: (a) Landlord will furnish to the Premises air-conditioning and
heating during the seasons they are required in Landlord's reasonable judgment;
and (b) Landlord will provide janitorial service on Monday through Friday after
5:00 p.m. (or, at Landlord's option, Sunday through Thursday) only (excluding
legal holidays) in accordance with the cleaning specifications which are
attached hereto as Exhibit G, electricity sufficient for lighting purposes and
normal office use only, hot and cold water for lavatory purposes and cold water
for drinking purposes, elevator service (with at least one (1) elevator in
operation at all times, except in the event of an emergency), and exterior
window-cleaning service shall be provided in a manner consistent with the manner
in which such services are provided in comparable multi-story office buildings
in, ▇▇▇▇▇▇▇▇▇▇ County, Maryland, taking into account the age, finishes on the
Lease Commencement Date, method of construction and system design of the
Building and of such comparable buildings. Landlord shall not be liable for any
failure to maintain comfortable atmosphere conditions in all or any portion of
the Premises due to excessive heat generated by any equipment or machinery
30
installed by Tenant (with or without Landlord's consent), due to any adverse
impact that Tenant's furniture, equipment, machinery or millwork may have upon
the delivery of HVAC to the Premises or due to the occupancy load. If Tenant
requires air-conditioning or heat beyond the Building Hours, then Landlord will
furnish the same, provided Tenant gives Landlord sufficient advance notice of
such requirement. Tenant shall pay, as additional rent, for such extra service
in accordance with Landlord's then-current schedule, which shall reflect
Landlord's cost of providing such service, including labor, cost of electricity,
wear and tear on equipment, and an allowance to cover general overhead. If the
same after-hours service is also requested by other tenants on the same floor as
Tenant, the charge therefor to each tenant requesting such after-hours service
shall be a pro-rated amount based upon the square footage of the leased premises
of all tenants on the same floor requesting such after-hours services.
Notwithstanding anything above to the contrary, Tenant shall have access to the
Building twenty-four (24) hours per day each day of the year (except in the
event of an emergency). Landlord shall provide and install replacement tubes for
Building standard fluorescent light fixtures (subject to reimbursement pursuant
to Article V); all other bulbs and tubes for the Premises shall be provided and
installed by Tenant at Tenant's expense.
14.2 Landlord may install checkmeters to electrical circuits
serving Tenant's equipment to verify that Tenant is not consuming excessive
electricity. If such checkmeters indicate that Tenant's electricity consumption
is excessive, then Landlord may install at Tenant's expense submeters to
ascertain Tenant's actual electricity consumption, and Tenant shall thereafter
pay for such consumption at the then-current price per kilowatt hour charged
Landlord by the utility, as well as the cost of the checkmeters. Tenant's
electricity consumption shall be deemed excessive if the electricity consumption
in the Premises per square foot of rentable area (including, without limitation,
electricity consumed in connection with outlets and lighting use) during any
billing period exceeds the average electricity consumption per square foot of
rentable area during the same period for typical, similarly situated tenants in
the Building, as reasonably calculated by Landlord.
14.3 Tenant shall reimburse Landlord for the cost of any excess
water, sewer and chiller usage in the Premises. Excess usage shall mean the
excess of the estimated usage in the Premises (per square foot of rentable area)
during any billing period over the average usage (per square foot of rentable
area) during the same period for the entire Building, as reasonably calculated
by Landlord.
14.4 Landlord shall not have any liability to Tenant, and Tenant
shall not be entitled to terminate this Lease or receive a rent abatement, in
the event of Landlord's failure or inability to furnish any of the utilities or
services required to be furnished by Landlord hereunder; provided, however, that
Landlord shall use reasonable efforts to restore such failure or inability so
long as such failure or inability is within Landlord's reasonable control and if
(a) such failure or inability is the result of Landlord's negligent or willful
misconduct, (b) Landlord is not proceeding diligently to correct such failure or
inability, (c) all or substantially all of the Premises is rendered unusable by
Tenant for a continuous period of ten (10) consecutive business days after
Tenant gives Landlord written notice thereof, and (d) Tenant does not in fact
use the Premises for its business purposes during such period, then, so long as
Tenant is not in default under this Lease, Tenant shall be entitled to an
abatement of the Base Rent payable hereunder for the period
31
beginning on the day after such ten (10) business day period ends and continuing
until the use of the Premises is restored to Tenant.
14.5 Tenant agrees that (a) it shall not install or operate in the
Premises any equipment or other machinery that, in the aggregate, will cause
Tenant to use more electrical power than is described on Exhibit E attached
hereto and made a part hereof and (b) Tenant shall not place any load upon the
floor of the Premises which exceeds the following per square foot load which
Landlord has been advised that the floor in the Premises was designed to carry:
eighty (80) pounds per square foot for live loads and twenty (20) pounds per
square foot for dead loads.
ARTICLE XV
LIABILITY OF LANDLORD
15.1 Except as otherwise specifically provided for in this Section,
Landlord, its employees and agents shall not be liable to Tenant, any Invitee or
any other person or entity for any damage (including indirect and consequential
damage), injury, loss or claim (including claims for the interruption of or loss
to business) based on or arising out of any cause whatsoever (except as
otherwise provided in this Section), including without limitation the following:
repair to any portion of the Premises or the Building; interruption in the use
of the Premises or any equipment therein; any accident or damage resulting from
any use or operation (by Landlord, Tenant or any other person or entity) of
elevators or heating, cooling, electrical, sewerage or plumbing equipment or
apparatus; termination of this Lease by reason of damage to the Premises or the
Building; any fire, robbery, theft, vandalism, mysterious disappearance or any
other casualty; actions of any other tenant of the Building or of any other
person or entity; failure or inability to furnish any service specified in this
Lease; and except with respect to actual damages (but in no event any
consequential or special damages) resulting from the gross negligence or willful
misconduct of Landlord or any of its employees or agents, leakage in any part of
the Premises or the Building from water, rain, ice or snow that may leak into,
or flow from, any part of the Premises or the Building, or from drains, pipes or
plumbing fixtures in the Premises or the Building. If any condition exists which
may be the basis of a claim of constructive eviction, then Tenant shall give
Landlord written notice thereof and a reasonable opportunity to correct such
condition, and in the interim Tenant shall not claim that it has been
constructively evicted or is entitled to a rent abatement. Any property placed
by Tenant or any Invitee in or about the Premises or the Building shall be at
the sole risk of Tenant, and Landlord shall not in any manner be held
responsible therefor. Any person receiving an article delivered for Tenant shall
be acting as Tenant's agent for such purpose and not as Landlord's agent. For
purposes of this Article, the term "BUILDING" shall be deemed to include the
Land. Notwithstanding the foregoing provisions of this Section, Landlord shall
not be released from liability to Tenant for any physical injury to any natural
person caused by Landlord's gross negligence or willful misconduct to the extent
such injury is not covered by insurance (a) carried by Tenant or such person, or
(b) required by this Lease to be carried by Tenant; provided, however, that
Landlord shall not under any circumstances be liable for any consequential or
indirect damages.
15.2 Subject to the provisions of Section 13.3 hereof, Tenant shall
reimburse Landlord, its employees and agents for (as additional rent), and shall
indemnify, defend upon request and hold them harmless from and against all
costs, damages, claims, liabilities, expenses (including
32
attorneys' fees), losses, penalties and court costs (collectively, "DAMAGES")
suffered by or claimed against them, directly or indirectly, based on or arising
out of, in whole or in part, (a) use and occupancy of the Premises or the
business conducted therein, (b) any act or omission of Tenant or any of its
agents, employees or contractors, (c) any breach of Tenant's obligations under
this Lease, including failure to comply with Laws or surrender the Premises upon
the expiration or earlier termination of the Lease Term, or (d) any act or
omission by Tenant or any of its agents, employees or contractors during any
entry upon the Land prior to the Lease Commencement Date, except to the extent
any such damages are directly caused by Landlord's gross negligence or willful
misconduct.
15.3 No landlord hereunder shall be liable for any obligation or
liability based on or arising out of any event or condition occurring during the
period that such landlord was not the owner of the Building or a landlord's
interest therein. Within ten (10) business days after request, Tenant shall
attorn to such transferee and execute, acknowledge and deliver any document
submitted to Tenant confirming such attornment.
15.4 Tenant shall not have the right to set off, recoup, ▇▇▇▇▇
(except as specifically provided herein) or deduct any amount allegedly owed to
Tenant pursuant to any claim against Landlord from any rent or other sum payable
to Landlord. Tenant's sole remedy for recovering upon such claim shall be to
institute an independent action against Landlord, which action shall not be
consolidated with any action of Landlord.
15.5 If Tenant or any Invitee is awarded a money judgment against
Landlord, then recourse for satisfaction of such judgment shall be limited to
execution against Landlord's estate and interest in the Building (which shall
include any insurance proceeds payable by Landlord's insurance carrier to Tenant
as a result of a claim by Tenant) and Landlord's operating account for the
Building. No other asset of Landlord, any partner, director, member, officer or
trustee of Landlord (each, an "OFFICER") or any other person or entity shall be
available to satisfy or be subject to such judgment, nor shall any officer or
other person or entity be held to have personal liability for satisfaction of
any claim or judgment against Landlord or any officer.
ARTICLE XVI
RULES
16.1 Tenant and Invitees shall at all times abide by and observe
the rules specified in Exhibit C. Tenant and Invitees shall also abide by and
observe any other rule that Landlord may promulgate from time to time for the
operation and maintenance of the Building, provided that notice thereof is given
and such rule is not inconsistent with the provisions of this Lease, does not
increase Tenant's monetary obligations hereunder in more than a de minimis way
and is generally applicable to all office tenants in the Buildings. All rules
shall be binding upon Tenant and enforceable by Landlord as if they were
contained herein. Nothing contained in this Lease shall be construed as imposing
upon Landlord any duty or obligation to enforce such rules, or the terms,
conditions or covenants contained in any other lease, as against any other
tenant, and Landlord shall not be liable to Tenant for the violation of such
rules by any other tenant or its employees, agents, assignees, subtenants,
invitees or licensees. Landlord shall use reasonable
33
efforts not to enforce any rule or regulation in a manner which unreasonably
discriminates among similarly situated tenants.
ARTICLE XVII
DAMAGE OR DESTRUCTION
17.1 If the Premises or the Building are totally or partially
damaged or destroyed thereby rendering the Premises totally or partially
inaccessible or unusable, then Landlord shall diligently repair and restore the
Premises and the Building to substantially the same condition they were in prior
to such damage or destruction (except as otherwise set forth below); provided,
however, that if in Landlord's judgment such repair and restoration cannot be
completed within one hundred eighty(180) days after the occurrence of such
damage or destruction (taking into account the time needed for effecting a
satisfactory settlement with any insurance company involved, removal of debris,
preparation of plans and issuance of all required governmental permits), then
Landlord or Tenant shall have the right to terminate this Lease by giving
written notice of termination to the other party within sixty (60) days after
the occurrence of such damage or destruction. If this Lease is terminated
pursuant to this Article, then rent shall be apportioned (based on the portion
of the Premises which is usable after such damage or destruction) and paid to
the date of termination. If this Lease is not terminated as a result of such
damage or destruction, then until such repair and restoration of the Premises
are substantially complete, Tenant shall be required to pay rent only for the
portion of the Premises that is usable while such repair and restoration are
being made; provided, however, that if such damage or destruction was caused by
the act or omission of Tenant or any of its employees, agents or contractors or,
to the extent covered by insurance, any Invitee, then Tenant shall not be
entitled to any such rent reduction. After receipt of all insurance proceeds
(including proceeds of insurance maintained by Tenant), Landlord shall proceed
with and bear the expenses of such repair and restoration of the Premises and
the Building; provided, however, that (a) if such damage or destruction was
caused by the gross negligence or any act of willful misconduct on the part of
Tenant or any of its employees, agents or contractors or, to the extent covered
by insurance, any Invitee, then Tenant shall pay Landlord's deductible and the
amount by which such expenses exceed the insurance proceeds, if any, actually
received by Landlord on account of such damage or destruction, (b) Tenant shall
pay the amount by which the cost of restoring any item which Landlord is
required to restore and Tenant is required to insure exceeds the insurance
proceeds received with respect thereto, and (c) Landlord shall not be required
to repair or restore any of the original tenant improvements installed pursuant
to Exhibit B, any Alterations or any other contents of the Premises (including,
without limitation, Tenant's trade fixtures, decorations, furnishings, equipment
or personal property). Notwithstanding anything herein to the contrary, Landlord
shall have the right to terminate this Lease if (1) insurance proceeds are
insufficient to pay the full cost of such repair and restoration, (2) the holder
of any Mortgage fails or refuses to make such insurance proceeds available for
such repair and restoration, (3) zoning or other applicable Laws or regulations
do not permit such repair and restoration, or (4) the Building is damaged by
fire or casualty (whether or not the Premises has been damaged) to such an
extent that Landlord decides, in its sole and absolute discretion, not to
rebuild or reconstruct the Building.
34
ARTICLE XVIII
CONDEMNATION
18.1 If one-third or more of the Premises, or the use or occupancy
thereof, shall be taken or condemned by any governmental or quasi-governmental
authority for any public or quasi-public use or purpose or sold under threat of
such a taking or condemnation, and such taking or condemnation would preclude
Tenant's efficient conduct of its business operations in the Premises,
(collectively, "CONDEMNED"), then this Lease shall terminate on the day prior to
the date title thereto vests in such authority and rent shall be apportioned as
of such date. If less than one-third of the Premises or occupancy thereof is
condemned, then this Lease shall continue in full force and effect as to the
part of the Premises not so condemned, except that as of the date title vests in
such authority Tenant shall not be required to pay rent with respect to the part
of the Premises so condemned. Notwithstanding anything herein to the contrary,
if twenty-five percent (25%) or more of the Land or the Building is condemned,
then whether or not any portion of the Premises is condemned, Landlord shall
have the right to terminate this Lease as of the date title vests in such
authority.
18.2 All awards, damages and other compensation paid on account of
such condemnation shall belong to Landlord, and Tenant assigns to Landlord all
rights to such awards, damages and compensation. Tenant shall not make any claim
against Landlord or such authority for any portion of such award, damages or
compensation attributable to damage to the Premises, value of the unexpired
portion of the Lease Term, loss of profits or goodwill, leasehold improvements
or severance damages. Nothing contained herein, however, shall prevent Tenant
from pursuing a separate claim against the authority for relocation expenses and
for the value of furnishings, equipment and trade fixtures installed in the
Premises at Tenant's expense and which Tenant is entitled pursuant to this Lease
to remove at the expiration or earlier termination of the Lease Term, provided
that such claim shall in no way diminish the award, damages or compensation
payable to or recoverable by Landlord in connection with such condemnation.
ARTICLE XIX
DEFAULT
19.1 Each of the following shall constitute an "EVENT OF DEFAULT":
(a) Tenant's failure to make when due any payment of the Base Rent, additional
rent or other sum; provided, however, that with respect to the first two (2)
such failures in any twelve (12) month period only, no Event of Default shall be
deemed to have occurred unless such failure continues for a period of five (5)
days after Landlord delivers written notice thereof to Tenant; (b) Tenant's
failure to perform or observe any covenant or condition of this Lease not
otherwise specifically described in this Section 19.1, which failure continues
for thirty (30) days after Landlord delivers written notice thereof to Tenant;
provided, however, that if the failure on the part of Tenant is not capable of
being cured within such 30-day period but Tenant expeditiously commences to cure
same and diligently proceeds with such cure, Tenant's time to cure such failure
shall be extended for the time necessary to cure same, but in no event longer
than sixty (60) days, inclusive of the original 30-day period; provided,
however, that such cure period shall not be applicable if, in Landlord's sole
and absolute discretion, such failure raises a life/safety issue with respect to
the Building or its occupants or visitors, including but not limited to, a
threat of personal injury or
35
continuing physical injury to the Building, or if such failure is affecting
another tenant's use or occupancy of the Building or its premises; (c) Tenant's
abandonment of or failure to occupy continuously the Premises without Landlord's
prior written consent; provided, however, that if (i) Tenant gives Landlord at
least thirty (30) days prior written notice that it intends to vacate the
Premises, (ii) Tenant pays the full amount of all Rent when due under this Lease
while the Premises are vacant, and (iii) Tenant leaves the Premises in the
condition required by this Lease and continues to maintain the Premises in the
condition required by this Lease throughout the remainder of the Term, then, and
in such event only, Tenant shall not be deemed to be in default under this
Section 19.1(g); (d) an Event of Bankruptcy as specified in Article XX; (e)
Tenant's dissolution or liquidation; or (f) any Environmental Default as
specified in Section 6.3; (g) any subletting, assignment, transfer, mortgage or
other encumbrance of the Premises or this Lease not permitted by Article VII; or
(h) any default by Tenant or any affiliate of Tenant under any other instrument
or lease entered into with or for the benefit of Landlord or any affiliate of
Landlord.
19.2 If there shall be an Event of Default (even if prior to the
Lease Commencement Date), then the provisions of this Section shall apply.
Landlord shall have the right, at its sole option, to terminate this Lease. In
addition, with or without terminating this Lease, Landlord may re-enter,
terminate Tenant's right of possession and take possession of the Premises. The
provisions of this Article shall operate as a notice to quit, and Tenant hereby
waives any other notice to quit or notice of Landlord's intention to re-enter
the Premises or terminate this Lease. If necessary, Landlord may proceed to
recover possession of the Premises under applicable Laws, or by such other
proceedings, including re-entry and possession, as may be applicable. If
Landlord elects to terminate this Lease and/or elects to terminate Tenant's
right of possession, everything contained in this Lease on the part of Landlord
to be done and performed shall cease without prejudice, however, to Tenant's
liability for all Base Rent, additional rent and other sums specified herein.
Whether or not this Lease and/or Tenant's right of possession is terminated,
Landlord shall have the right, at its sole option, to terminate any renewal or
expansion right contained in this Lease and to grant or withhold any consent or
approval pursuant to this Lease in its sole and absolute discretion. Landlord
may relet the Premises or any part thereof, alone or together with other
premises, for such term(s) (which may extend beyond the date on which the Lease
Term would have expired but for Tenant's default) and on such terms and
conditions (which may include any concessions or allowances granted by Landlord)
as Landlord, in its sole and absolute discretion, may determine, but Landlord
shall not be liable for, nor shall Tenant's obligations hereunder be diminished
by reason of, any failure by Landlord to relet all or any portion of the
Premises or to collect any rent due upon such reletting. Whether or not this
Lease and/or Tenant's right of possession is terminated or any suit is
instituted, Tenant shall be liable for any Base Rent, additional rent, damages
or other sum which may be due or sustained prior to such default, and for all
costs, fees and expenses (including, but not limited to, attorneys' fees and
costs, brokerage fees, expenses incurred in enforcing any of Tenant's
obligations under the Lease or in placing the Premises in first-class rentable
condition, advertising expenses, and any concessions or allowances granted by
Landlord) incurred by Landlord in pursuit of its remedies hereunder and/or in
recovering possession of the Premises and renting the Premises to others from
time to time plus other actual or consequential damages suffered or incurred by
Landlord on account of Tenant's default (including, but not limited to, late
fees or other charges incurred by Landlord under any Mortgage). Tenant also
shall be liable for additional damages which at Landlord's election shall be
either one or a combination of the following: (a) an amount equal to
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the Base Rent and additional rent due or which would have become due from the
date of Tenant's default through the remainder of the Lease Term, less the
amount of rental, if any, which Landlord receives during such period from others
to whom the Premises may be rented (other than any additional rent received by
Landlord as a result of any failure of such other person to perform any of its
obligations to Landlord), which amount shall be computed and payable in monthly
installments, in advance, on the first day of each calendar month following
Tenant's default and continuing until the date on which the Lease Term would
have expired but for Tenant's default, it being understood that separate suits
may be brought from time to time to collect any such damages for any month(s)
(and any such separate suit shall not in any manner prejudice the right of
Landlord to collect any damages for any subsequent month(s)), or Landlord may
defer initiating any such suit until after the expiration of the Lease Term (in
which event such deferral shall not be construed as a waiver of Landlord's
rights as set forth herein and Landlord's cause of action shall be deemed not to
have accrued until the expiration of the Lease Term), and it being further
understood that if Landlord elects to bring suits from time to time prior to
reletting the Premises, Landlord shall be entitled to its full damages through
the date of the award of damages without regard to any Base Rent, additional
rent or other sums that are or may be projected to be received by Landlord upon
reletting of the Premises; or (b) an amount equal to the sum of (i) all Base
Rent, additional rent and other sums due or which would be due and payable under
this Lease as of the date of Tenant's default through the end of the scheduled
Lease Term, plus (ii) all expenses (including broker and attorneys' fees)
projected by Landlord to be incurred in connection with the reletting of the
Premises, minus (iii) any Base Rent, additional rent and other sums which Tenant
proves by a preponderance of the evidence would be received by Landlord upon
reletting of the Premises from the end of the vacancy period projected by
Landlord through the expiration of the scheduled Lease Term. Such amount shall
be discounted using a discount factor of five percent (5%), and such resulting
amount shall be payable to Landlord in a lump sum on demand, it being understood
that upon payment of such liquidated and agreed final damages, Tenant shall be
released from further liability under this Lease with respect to the period
after the date of such payment. Landlord may bring suit to collect any such
damages at any time after an Event of Default shall have occurred. In the event
Landlord relets the Premises together with other premises or for a term
extending beyond the scheduled expiration of the Lease Term, it is understood
that Tenant will not be entitled to apply any base rent, additional rent or
other sums generated or projected to be generated by either such other premises
or in the period extending beyond the scheduled expiration of the Lease Term
(collectively, the "EXTRA RENT") against Landlord's damages. Similarly in
proving the amount that would be received by Landlord upon a reletting of the
Premises as set forth in clause (iii) above, Tenant shall not take into account
the Extra Rent. The provisions contained in this Section shall be in addition
to, and shall not prevent the enforcement of, any claim Landlord may have
against Tenant for anticipatory breach of this Lease. Nothing herein shall be
construed to affect or prejudice Landlord's right to prove, and claim in full,
unpaid rent accrued prior to termination of this Lease. If Landlord is entitled,
or Tenant is required, pursuant to any provision hereof to take any action upon
the termination of the Lease Term, then Landlord shall be entitled, and Tenant
shall be required, to take such action also upon the termination of Tenant's
right of possession.
19.3 Tenant hereby expressly waives, for itself and all persons
claiming by, through or under it, any right of redemption, re-entry or
restoration of the operation of this Lease under any present or future Law,
including without limitation any such right which Tenant would otherwise
37
have in case Tenant shall be dispossessed for any cause, or in case Landlord
shall obtain possession of the Premises as herein provided.
(a) All rights and remedies of Landlord set forth in this
Lease are cumulative and in addition to all other rights and remedies available
to Landlord at law or in equity, including those available as a result of any
anticipatory breach of this Lease. The exercise by Landlord of any such right or
remedy shall not prevent the concurrent or subsequent exercise of any other
right or remedy. No delay or failure by Landlord to exercise or enforce any of
Landlord's rights or remedies or Tenant's obligations shall constitute a waiver
of any such rights, remedies or obligations. Landlord shall not be deemed to
have waived any default by Tenant unless such waiver expressly is set forth in a
written instrument signed by Landlord. If Landlord waives in writing any default
by Tenant, such waiver shall not be construed as a waiver of any covenant,
condition or agreement set forth in this Lease except as to the specific
circumstances described in such written waiver.
19.4 If Landlord shall institute proceedings against Tenant and a
compromise or settlement thereof shall be made, then the same shall not
constitute a waiver of the same or of any other covenant, condition or agreement
set forth herein, nor of any of Landlord's rights hereunder. Neither the payment
by Tenant of a lesser amount than the monthly installment of Base Rent,
additional rent or of any sums due hereunder nor any endorsement or statement on
any check or letter accompanying a check for payment of rent or other sums
payable hereunder shall be deemed an accord and satisfaction. Landlord may
accept the same without prejudice to Landlord's right to recover the balance of
such rent or other sums or to pursue any other remedy. Notwithstanding any
request or designation by Tenant, Landlord may apply any payment received from
Tenant to any payment then due. No re-entry by Landlord, and no acceptance by
Landlord of keys from Tenant, shall be considered an acceptance of a surrender
of this Lease.
19.5 If Tenant fails to make any payment to any third party or to
do any act herein required to be made or done by Tenant, then Landlord may, but
shall not be required to, make such payment or do such act. The taking of such
action by Landlord shall not be considered a cure of such default by Tenant or
prevent Landlord from pursuing any remedy it is otherwise entitled to in
connection with such default. If Landlord elects to make such payment or do such
act, then all expenses incurred by Landlord, plus interest thereon at a rate
(the "DEFAULT RATE") equal to the greater of eighteen percent (18%) per annum or
the rate per annum which is three (3) whole percentage points higher than the
prime rate published in the Money Rates section of the Wall Street Journal, from
the date incurred by Landlord to the date of payment thereof by Tenant, shall
constitute additional rent due hereunder; provided, however, that nothing
contained herein shall be construed as permitting Landlord to charge or receive
interest in excess of the maximum rate then allowed by law.
19.6 If Tenant fails to make any payment of Base Rent, additional
rent or any other sum on or before the date such payment is due and payable,
then Tenant shall pay to Landlord a late charge of five percent (5%) of the
amount of such payment; provided, however, that if any payment of Rent is not
made on or before the fourth (4th) day following the date on which payment is
due on two occasions during the Lease Term, then thereafter the aforesaid late
fee shall be applied to each subsequent required payment which is not received
by the date on which such payment is due, rather than deferring such late fee
until after the fourth (4th) day following
38
the date on which such payment is due. In addition, such payment and such late
fee shall bear interest at the Default Rate from the date such payment or late
fee, respectively, became due to the date of payment thereof by Tenant;
provided, however, that nothing contained herein shall be construed as
permitting Landlord to charge or receive interest in excess of the maximum rate
then allowed by law. Such late charge and interest shall constitute additional
rent due hereunder without any notice or demand.
19.7 [Intentionally omitted.]
19.8 If more than one natural person or entity shall constitute
Tenant, then the liability of each such person or entity shall be joint and
several. If Tenant is a general partnership or other entity the partners or
members of which are subject to personal liability, then the liability of each
such partner or member shall be joint and several. No waiver, release or
modification of the obligations of any such person or entity shall affect the
obligations of any other such person or entity.
ARTICLE XX
BANKRUPTCY
20.1 An "EVENT OF BANKRUPTCY" is the occurrence with respect to any
of Tenant, a Guarantor or any other person liable for Tenant's obligations
hereunder [including, without limitation, any general partner (or, if Tenant is
a limited liability company, any member of Tenant) of Tenant (a "GENERAL
PARTNER")] of any of the following: (a) such person becoming insolvent, as that
term is defined in Title 11 of the United States Code (the "BANKRUPTCY CODE") or
under the insolvency laws of any state (the "INSOLVENCY LAWS"); (b) appointment
of a receiver or custodian for any property of such person, or the institution
of a foreclosure or attachment action upon any property of such person; (c)
filing by such person of a voluntary petition under the provisions of the
Bankruptcy Code or Insolvency Laws; (d) filing of an involuntary petition
against such person as the subject debtor under the Bankruptcy Code or
Insolvency Laws, which either (1) is not dismissed within thirty (30) days after
filing, or (2) results in the issuance of an order for relief against the
debtor; or (e) such person making or consenting to an assignment for the benefit
of creditors or a composition of creditors; (f) such person submitting (either
before or after execution hereof) to Landlord any financial statement containing
any material inaccuracy or omission; or (g) a decrease by fifty percent (50%) or
more of such person's net worth below the net worth of such person as of the
date hereof. At any time upon not less than five (5) days' prior written notice,
Tenant shall submit such information concerning the financial condition of any
such person as Landlord may request. Tenant warrants that all such information
heretofore and hereafter submitted is and shall be correct and complete.
20.2 Upon occurrence of an Event of Bankruptcy, Landlord shall have
all rights and remedies available pursuant to Article XIX; provided, however,
that while a case (the "CASE") in which Tenant is the subject debtor under the
Bankruptcy Code is pending, Landlord's right to terminate this Lease shall be
subject, to the extent required by the Bankruptcy Code, to any rights of Tenant
or its trustee in bankruptcy (collectively, "TRUSTEE") to assume or assume and
assign this Lease pursuant to the Bankruptcy Code. After the commencement of a
Case: (i) Trustee shall perform all post-petition obligations of Tenant under
this Lease; and (ii) if Landlord is
39
entitled to damages (including, without limitation, unpaid rent) pursuant to the
terms of this Lease, then all such damages shall be entitled to administrative
expense priority pursuant to the Bankruptcy Code. Any person or entity to which
this Lease is assigned pursuant to the Bankruptcy Code shall be deemed without
further act or deed to have assumed all of the obligations arising under this
Lease on and after the date of assignment, and any such assignee shall upon
request execute and deliver to Landlord an instrument confirming such
assumption. Trustee shall not have the right to assume or assume and assign this
Lease unless Trustee promptly (a) cures all defaults under this Lease, (b)
compensates Landlord for damages incurred as a result of such defaults, (c)
provides adequate assurance of future performance on the part of Trustee as
debtor in possession or Trustee's assignee, and (d) complies with all other
requirements of the Bankruptcy Code. If Trustee fails to assume or assume and
assign this Lease in accordance with the requirements of the Bankruptcy Code
within sixty (60) days after the initiation of the Case, then Trustee shall be
deemed to have rejected this Lease. If this Lease is rejected or deemed
rejected, then Landlord shall have all rights and remedies available to it
pursuant to Article XIX. Adequate assurance of future performance shall require,
among other things, that the following minimum criteria be met: (1) Tenant's
gross receipts in the ordinary course of business during the thirty (30) days
preceding the Case must be greater than ten (10) times the next monthly
installment of Base Rent and additional rent due; (2) Both the average and
median of Tenant's monthly gross receipts in the ordinary course of business
during the seven (7) months preceding the Case must be greater than the next
monthly installment of Base Rent and additional rent due; (3) Trustee must pay
its estimated pro-rata share of the cost of all services performed or provided
by Landlord (whether directly or through agents or contractors and whether or
not previously included as part of Base Rent) in advance of the performance or
provision of such services; (4) Trustee must agree that Tenant's business shall
be conducted in a first-class manner, and that no liquidating sale, auction or
other non-first-class business operation shall be conducted in the Premises; (5)
Trustee must agree that the use of the Premises as stated in this Lease shall
remain unchanged and that no prohibited use shall be permitted; (6) Trustee must
agree that the assumption or assumption and assignment of this Lease shall not
violate or affect the rights of other tenants of the Building and the Complex;
(7) Trustee must pay at the time the next monthly installment of Base Rent is
due, in addition to such installment, an amount equal to the monthly
installments of Base Rent, and additional rent due for the next six (6) months
thereafter, such amount to be held as a security deposit; (8) Trustee must agree
to pay, at any time Landlord draws on such security deposit, the amount
necessary to restore such security deposit to its original amount; (9) Trustee
must comply with all duties and obligations of Tenant under this Lease; and (10)
All assurances of future performance specified in the Bankruptcy Code must be
provided.
ARTICLE XXI
SUBORDINATION
21.1 This Lease is subject and subordinate to the lien, provisions,
operation and effect of all mortgages, deeds of trust, ground leases or other
security instruments which may now or hereafter encumber the Building or the
Land (collectively, "MORTGAGES"), to all funds and indebtedness intended to be
secured thereby, and to all renewals, extensions, modifications, recastings or
refinancings thereof. The holder of any Mortgage to which this Lease is
subordinate shall have the right (subject to any required approval of the
holders of any superior
40
Mortgage) at any time to declare this Lease to be superior to the lien,
provisions, operation and effect of such Mortgage and Tenant shall execute,
acknowledge and deliver all documents required by such holder in confirmation
thereof. Notwithstanding the foregoing, (a) Landlord shall obtain from the
holder of the existing Mortgage which encumbers the Building and Land a
non-disturbance agreement for the benefit of tenant in such holder's usual form
and (b) with respect to any future Mortgage on the Building, the Land or both,
if (i) at the time that any such Mortgage is placed Tenant is then paying all of
its obligations to its creditors on a timely basis as such obligations become
due, and (ii) there shall then be no default existing under this Lease then, in
such event, Landlord shall use commercially reasonable efforts to obtain from
the holder of such future Mortgage a non-disturbance agreement for the benefit
of Tenant in such holder's usual form; provided, however, that in each case (A)
Tenant shall pay all costs incurred by Landlord which are imposed by such holder
of a Mortgage with respect to such non-disturbance agreement, and (B) in the
event that Landlord does not obtain a non-disturbance agreement which it is
obligated to obtain pursuant to clause (a) of this Section 21.1 or which
Landlord is obligated to use commercially reasonable efforts to obtain pursuant
to clause (b) of this Section 21.1, then Tenant's sole remedy shall be that this
Lease shall not be subject and subordinate to the lien of the Mortgage and
Landlord shall have no liability to Tenant on account of Landlord's failure to
obtain a non-disturbance agreement.
21.2 Tenant shall at Landlord's request promptly execute any
requisite or appropriate document confirming the foregoing subordination.
Attached hereto as Exhibit H is a copy of the subordination agreement acceptable
to the current holder of the Mortgage encumbering the Building. Tenant appoints
Landlord as Tenant's attorney-in-fact to execute any such document for Tenant
during the continuance of an Event of Default under this Lease. Tenant waives
the provisions of any statute or rule of law now or hereafter in effect which
may give or purport to give Tenant any right to terminate or otherwise adversely
affect this Lease and Tenant's obligations hereunder in the event any
foreclosure proceeding is prosecuted or completed or in the event the Building,
the Land or Landlord's interest therein is transferred by foreclosure, by deed
in lieu of foreclosure or otherwise. If this Lease is not extinguished upon any
such transfer or by the transferee following such transfer, then, at the request
of such transferee, Tenant shall attorn to such transferee and shall recognize
such transferee as the landlord under this Lease. Tenant agrees that upon any
such attornment, such transferee shall not be (a) bound by any payment of the
Base Rent or additional rent more than one (1) month in advance, except
prepayments in the nature of security for the performance by Tenant of its
obligations under this Lease, but only to the extent such prepayments have been
delivered to such transferee, (b) bound by any amendment of this Lease made
without the consent of the holder of each Mortgage existing as of the date of
such amendment, (c) liable for damages for any breach, act or omission of any
prior landlord, (d) subject to any offsets or defenses which Tenant might have
against any prior landlord, or (e) be obligated for construction of any
improvements otherwise to be constructed by Landlord under the Lease; provided,
however, that after succeeding to Landlord's interest under this Lease, such
transferee shall agree to perform in accordance with the terms of this Lease all
obligations of Landlord arising after the date of transfer. Within five (5) days
after the request of such transferee, Tenant shall execute, acknowledge and
deliver any requisite or appropriate document submitted to Tenant confirming
such attornment.
21.3 If any prospective or current holder of a Mortgage requires
that modifications to this Lease be obtained, and provided that such
modifications (a) are reasonable, (b) do not
41
adversely affect in a material manner Tenant's use of the Premises as herein
permitted, and (c) do not increase the rent and other sums to be paid by Tenant,
then Landlord may submit to Tenant an amendment to this Lease incorporating such
required modifications, and Tenant shall execute, acknowledge and deliver such
amendment to Landlord within five (5) days after Tenant's receipt thereof (with
no other notice or cure period applicable thereto).
21.4 If (i) the Building or the Land, or both, are at any time
subject to a Mortgage, (ii) this Lease and rent payable hereunder is assigned to
the holder of the Mortgage, and (iii) the Tenant is given notice of such
assignment, including the name and address of the assignee, then, in that event,
Tenant shall not terminate this Lease or make any abatement or offset in the
rent payable hereunder for any default on the part of the Landlord without first
giving notice, in the manner provided elsewhere in this Lease for the giving of
notices, to the holder of such Mortgage, specifying the default in reasonable
detail, and affording such holder a reasonable opportunity to make performance,
at its election, for and on behalf of the Landlord, except that (x) such holder
shall have at least thirty (30) days to cure the default; (y) if such default
cannot be cured with reasonable diligence and continuity within thirty (30)
days, such holder shall have any additional time as may be reasonably necessary
to cure the default with reasonable diligence and continuity; and (z) if the
default cannot reasonably be cured without such holder having obtained
possession of the Building, such holder shall have such additional time as may
be reasonably necessary under the circumstances to obtain possession of the
Building and thereafter to cure the default with reasonable diligence and
continuity. If more than one such holder makes a written request to Landlord to
cure the default, the holder making the request whose lien is the most senior
shall have such right.
ARTICLE XXII
HOLDING OVER
22.1 Tenant acknowledges that it is extremely important that
Landlord have substantial advance notice of the date on which Tenant will vacate
the Premises, because Landlord will require an extensive period to locate a
replacement tenant and because Landlord plans its entire leasing and renovation
program for the Building in reliance on its lease expiration dates. Tenant also
acknowledges that if Tenant fails to surrender the Premises or any portion
thereof at the expiration or earlier termination of the Lease Term, then it will
be conclusively presumed that the value to Tenant of remaining in possession,
and the loss that will be suffered by Landlord as a result thereof, far exceed
the Base Rent and additional rent that would have been payable had the Lease
Term continued during such holdover period. Therefore, if Tenant (or anyone
claiming through Tenant) does not immediately surrender the Premises or any
portion thereof upon the expiration or earlier termination of the Lease Term,
then this Lease and the rent payable by Tenant hereunder shall be increased to
equal (i) during the first thirty (30) days of such holdover period, one hundred
fifty percent (150%) of the Base Rent, additional rent and other sums that would
have been payable pursuant to the provisions of this Lease if the Lease Term had
continued during such holdover period and (ii) thereafter, two hundred percent
(200%) of the Base Rent, additional rent and other sums that would have been
payable pursuant to the provisions of this Lease if the Lease Term had continued
during such holdover period. Such rent shall be computed by Landlord and paid by
Tenant on a monthly basis and shall be payable on the first day of such holdover
period and the first day of each calendar month thereafter during
42
such holdover period until the Premises have been vacated. Notwithstanding any
other provision of this Lease, Landlord's acceptance of such rent shall not in
any manner adversely affect Landlord's other rights and remedies, including
Landlord's right to evict Tenant and to recover all damages. Any such holdover
shall be deemed to be a tenancy-at-sufferance and not a tenancy-at-will or
tenancy from month-to-month. In no event shall any holdover be deemed a
permitted extension or renewal of the Lease Term, and nothing contained herein
shall be construed to constitute Landlord's consent to any holdover or to give
Tenant any right with respect thereto.
ARTICLE XXIII
COVENANTS OF LANDLORD
23.1 Landlord covenants that it has the right to enter into this
Lease, and that if Tenant shall perform timely all of its obligations hereunder,
then, subject to the provisions of this Lease, Tenant shall during the Lease
Term peaceably and quietly occupy and enjoy the full possession of the Premises
without hindrance by Landlord or any party claiming through or under Landlord.
23.2 Landlord reserves the following rights: (a) to change the
street address and name of the Building and the Complex; provided, however that
unless such change is required by any governmental agency, Landlord shall
reimburse Tenant for the reasonable cost of reprinting Tenant's stationery then
on hand; (b) to change the arrangement and location of entrances, passageways,
doors, doorways, corridors, elevators, stairs, toilets or other public parts of
the Building and the Complex; (c) to erect, use and maintain pipes, wires,
structural supports, ducts and conduits in and through the Premises; (d) to
grant to anyone the exclusive right to conduct any particular business in the
Building and the Complex; (e) to exclusively use and/or lease the roof areas,
the sidewalks and other exterior areas; (f) to resubdivide the Land or to
combine the Land with other lands; (g) to relocate any parking areas designated
for Tenant's use to a similar location within the garage which is part of the
Complex; (h) if Tenant vacates the Premises prior to the expiration of the Lease
Term, to enter the Premises for any reason whatsoever and to make Alterations to
or otherwise prepare the Premises for reoccupancy without relieving Tenant of
its obligation to pay all Base Rent, additional rent and other sums due under
this Lease through such expiration; (i) to construct improvements (including
kiosks) on the Land and in the public and common areas of the Building; (j) to
prohibit smoking in the entire Building or portions thereof (including the
Premises) and on the Land, so long as such prohibitions are in accordance with
applicable law; and (k) if any excavation or other substructure work shall be
made or authorized to be made upon land adjacent to the Building or the Land, to
enter the Premises for the purpose of doing such work as is required to preserve
the walls of the Building and to preserve the land from injury or damage and to
support such walls and land by proper foundations. Landlord may exercise any or
all of the foregoing rights without being deemed to be guilty of an eviction,
actual or constructive, or a disturbance of Tenant's business or use or
occupancy of the Premises.
Landlord's activities and installations in the Premises shall
not unreasonably interfere with Tenant's business operations in the Premises
pursuant to this Section 23.2, and all such installations in the Premises by
Landlord pursuant to this Section 23.2 shall be appropriately concealed.
43
ARTICLE XXIV
PARKING
24.1 (a) During the Lease Term, Tenant shall have the right to
use (on a non-exclusive first-come, first-served basis) the Parking Permits (as
defined in Section 1.17 hereinabove) for the unreserved parking of passenger
automobiles in the areas of the garage serving the Complex (the "GARAGE")
designated from time to time by Landlord for the use of tenants of the Building.
The charge for such permits shall be the prevailing rate charged form time to
time by Landlord or the operator of the Garage (the "GARAGE OPERATOR"), it being
understood and agreed that the initial rate for unreserved spaces for Tenant
shall be One Hundred Thirty Dollars ($130.00) per parking space, per month,
which charges shall be payable monthly in advance or on before the first day of
each month throughout the Lease Term to Landlord, or, at Landlord's option, to
the Garage Operator. The Garage Operator may operate or lease the Garage
pursuant to an agreement or lease with Landlord. Notwithstanding the foregoing,
Landlord does not guarantee the availability of such monthly parking permits to
Tenant after the sixth (6th) full month of the Lease Term if and to the extent
that Tenant does not purchase such monthly parking permits during the sixth
(6th) month and each subsequent month of the Lease Term. Landlord reserves the
right to institute either a valet parking system or a self parking system,
Tenant and its employees shall observe reasonable precautions in the use of the
Garage and shall at all times abide by all rules and regulations governing the
use of the Garage promulgated by Landlord or the Garage Operator, which rules
and regulations shall be of uniform application to all office tenants in the
Building, shall be consistent with the terms of this Lease and shall not
increase Tenant's monetary obligations under this Lease in other than a de
minimis way. The Garage will remain open on Monday through Friday (excluding
legal holidays) and during the Building Hours on such days. Landlord reserves
the right to close the Garage during periods of unusually inclement weather or
for repairs. At all times when the Garage is closed, monthly permit holders
shall be afforded access to the Garage by means of a magnetic card or other
procedure provided by Landlord or the Garage Operator. Landlord does not assume
and responsibility and shall not be held liable for any damage or loss to any
automobile or personal property in the or about the Garage or for any injury
sustained by any person in or about the Garage. The parties acknowledge that
Tenant's parking rights shall be subject to the terms and conditions of
Landlord's agreement with the Garage Operator, if any. The right to access the
Garage may be by means of an electronic access gate operated by electronic
access cards, in which case Tenant shall deposit with Landlord Twenty Dollars
($20.00) for each access card requested by Tenant which is either (i) in excess
of the number of such access cards which Tenant shall have received on the Lease
Commencement Date or (ii) in replacement of any access card previously given to
Tenant by Landlord or the Garage Operator. Landlord reserves the right to modify
in any way Landlord deems appropriate the manner in which the Garage is accessed
during the Lease Term.
(b) Subject to the limitations imposed thereon from time
to time by Landlord and/or the Garage Operator, Tenant's customers and visitors
shall have the right to use available spaces in the Garage for the purpose of
parking their vehicles therein while visiting the Premises. Tenant's customers
and visitors shall pay the then current hourly parking fees established by
Landlord and/or the Garage Operator, as adjusted from time to time, for the
privilege of using the Garage. The foregoing shall in no way be construed to
impose upon Landlord any obligation to provide customer parking for Tenant.
44
(c) Landlord's granting of parking rights hereunder does
not create a bailment between the parties, it being expressly agreed that the
only relationship created between Landlord and Tenant hereby is that of right
grantor and right grantee. All motor vehicles (including all contents thereof)
shall be in the Garage at the sole risk of their owners and Tenant, and Landlord
is not responsible for the protection and security of such vehicles. Neither
Landlord nor any agent, employee or contractor of Landlord shall have any
liability for any property damage or personal injury arising out of or in
connection with said motor vehicles, and Tenant shall indemnify and hold
Landlord and any agent, employee or contractor of Landlord harmless from and
against all demands, claims, damages, costs, expenses, liabilities, or causes of
action arising out of or connected with Tenant's or Tenant's Invitees' use of
the Garage, or any acts or omissions arising out of or in connection with said
motor vehicles.
(d) In its use of the Garage, Tenant will follow all
terms of all applicable Rules and Regulations enacted by Landlord with respect
to the Complex and/or the Garage, and will cause Tenant's Invitees to do the
same. Any violation of said applicable Rules and Regulations or failure by
Tenant to pay parking fees will constitute an Event of Default hereunder. Upon
any such Event of Default, in addition to Landlord's other rights and remedies,
Landlord may terminate Tenant's rights to lease parking spaces in the Garage in
accordance with the terms of subsection (a) above.
(e) If: (i) all or a portion of the Garage is damaged by
fire or other casualty or taken by power of eminent domain or purchased in lieu
thereof by any governmental authority, (ii) the insurance proceeds payable as a
result of a casualty to the Garage are applied to a Mortgage, or (iii) there is
any material uninsured loss to the Garage, Landlord may terminate Tenant's right
to lease spaces in the Garage in accordance with the terms of subsection (a)
above. If Landlord does not so elect to terminate such rights of Tenant pursuant
to the foregoing provisions of this subsection (e), then: (1) Landlord will
either (i) proceed to restore the Garage (and Landlord shall have no obligation
to provide any alternative parking while such restoration is being performed),
or (ii) not restore the Garage, but provide Tenant, at Tenant's sole cost and
expense, with alternate parking throughout the remainder of the Lease Term (if
such alternative parking is reasonably available under the circumstances).
24.2 Landlord reserves the right for itself or the operator of the
Garage (if any) to establish rates and fees for the use of the Garage and to
establish and modify or amend rules and regulations governing the use of such
parking areas. Landlord shall have the right to revoke a users parking
privileges in the event such user fails to abide by the rules and regulations
governing the use of such parking areas. Tenant shall be prohibited from using
the Garage for purposes other than for parking registered vehicles. The storage
or repair of vehicles in the Garage shall be prohibited.
24.3 Tenant shall not assign, sublet or transfer any Parking
Permits without Landlord's prior written consent (unless Landlord's consent is
not required to a proposed assignment or sublease pursuant to Section 7.2
hereof), except to a subtenant or assignee which has been approved by Landlord
in advance, in writing. Any other attempted assignment, sublet, or transfer
shall be void.
45
ARTICLE XXV
ESTOPPELS
25.1 At any time and from time to time, upon not less than ten (10)
days' prior written notice, Tenant and each subtenant, assignee, licensee or
concessionaire or occupant of Tenant shall execute, acknowledge and deliver to
Landlord and/or any other person or entity designated by Landlord, a written
statement certifying: (a) that this Lease is unmodified and in full force and
effect (or if there have been modifications, that this Lease is in full force
and effect as modified and stating the modifications); (b) the dates to which
the rent and any other charges have been paid; (c) whether or not Landlord is in
default in the performance of any obligation, and if so, specifying the nature
of such default; (d) the address to which notices to Tenant are to be sent; (e)
that this Lease is subject and subordinate to all Mortgages encumbering the
Building or the Land; (f) that Tenant has accepted the Premises and that all
work thereto has been completed (or if such work has not been completed,
specifying the incomplete work); and (g) such other matters as Landlord may
reasonably request. Any such statement may be relied upon by any owner of the
Building or the Land, any prospective purchaser of the Building or the Land, any
holder or prospective holder of a Mortgage or any other person or entity. Tenant
acknowledges that time is of the essence to the delivery of such statements and
that Tenant's failure to deliver timely such statements may cause substantial
damages resulting from, for example, delays in obtaining financing secured by
the Building. Tenant shall be liable for all such damages. If any such statement
is not delivered timely by Tenant, then all matters contained in such statement
shall be deemed true and accurate. Attached hereto as Exhibit I is a copy of the
estoppel certificate acceptable to the current holder of the Mortgage
encumbering the Building.
ARTICLE XXVI
GENERAL PROVISIONS
26.1 Tenant acknowledges that neither Landlord nor any broker,
agent or employee of Landlord has made any representation or promise with
respect to the Premises or the Building except as herein expressly set forth,
and no right, privilege, easement or license is being acquired by Tenant except
as herein expressly set forth.
26.2 Nothing contained in this Lease shall be construed as creating
any relationship between Landlord and Tenant other than that of landlord and
tenant. Tenant shall not use the name of the Building for any purpose other than
as the address of the business to be conducted by Tenant in the Premises, use
the name of the Building as Tenant's business address after Tenant vacates the
Premises, or do or permit to be done anything in connection with Tenant's
business or advertising which in the reasonable judgment of Landlord may reflect
unfavorably on Landlord or the Building or confuse or mislead the public as to
any apparent connection or relationship between Landlord, the Building and
Tenant.
26.3 Landlord and Tenant each warrants to the other that in
connection with this Lease it has not employed or dealt with any broker, agent
or finder, other than the Broker(s) set forth in Section 1.10. Landlord
acknowledges that Landlord shall pay any commission or fee due to the Broker(s)
pursuant to a separate agreement. Tenant shall indemnify and hold Landlord
harmless
46
from and against any claim for brokerage or other commissions asserted by any
broker, agent or finder employed by Tenant or with whom Tenant has dealt, other
than the Broker(s).
26.4 LANDLORD, TENANT, AND ALL OTHER PERSONS OR ENTITIES LIABLE
UNDER THIS LEASE EACH WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING, CLAIM OR
COUNTERCLAIM BROUGHT IN CONNECTION WITH ANY MATTER ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT HEREUNDER,
TENANTS USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OF INJURY OR DAMAGE.
TENANT CONSENTS TO SERVICE OF PROCESS AND ANY PLEADING RELATING TO ANY SUCH
ACTION AT THE PREMISES PROVIDED THAT TENANT IS THEN IN OCCUPANCY OF ANY PORTION
OF THE PREMISES; FURTHER PROVIDED, HOWEVER, THAT NOTHING HEREIN SHALL BE
CONSTRUED AS REQUIRING SUCH SERVICE AT THE PREMISES. LANDLORD, TENANT, AND ALL
OTHER PERSONS OR ENTITIES LIABLE UNDER THIS LEASE EACH WAIVES ANY OBJECTION TO
THE VENUE OF ANY ACTION FILED IN ANY COURT SITUATED IN THE JURISDICTION IN WHICH
THE BUILDING IS LOCATED, AND WAIVES ANY RIGHT, CLAIM OR POWER, UNDER THE
DOCTRINE OF FORUM NON CONVENIENS OR OTHERWISE, TO TRANSFER ANY SUCH ACTION TO
ANY OTHER COURT.
26.5 All notices or other communications required under this Lease
shall be in writing and shall be deemed duly given and received when delivered
in person (with receipt therefor), on the next business day after deposit with a
recognized overnight delivery service, or on the third (3rd ) day after being
sent by certified or registered mail, return receipt requested, postage prepaid,
to the following addresses: (a) if to Landlord, at each of the Landlord Notice
Addresses specified in Article I; (b) if to Tenant, at the Tenant Notice Address
specified in Article I. Either party may change its address for the giving of
notices by notice given in accordance with this Section. If Landlord or the
holder of any Mortgage notifies Tenant that a copy of any notice to Landlord
shall be sent to such holder at a specified address, then Tenant shall send (in
the manner specified in this Section and at the same time such notice is sent to
Landlord) a copy of each such notice to such holder, and no such notice shall be
considered duly sent unless such copy is so sent to such holder. Any such holder
shall have the rights set forth in Section 21.4. Any cure of Landlord's default
by such holder shall be treated as performance by Landlord.
26.6 Each provision of this Lease shall be valid and enforceable to
the fullest extent permitted by law. If any provision of this Lease or the
application thereof to any person or circumstance shall to any extent be invalid
or unenforceable, then such provision shall be deemed to be replaced by the
valid and enforceable provision most substantively similar to such invalid or
unenforceable provision, and the remainder of this Lease and the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby. Nothing contained in
this Lease shall be construed as permitting Landlord to charge or receive
interest in excess of the maximum rate allowed by law.
26.7 Feminine, masculine or neuter pronouns shall be substituted
for those of another form, and the plural or singular shall be substituted for
the other number, in any place in which the context may require such
substitution.
47
26.8 The provisions of this Lease shall be binding upon and inure
to the benefit of the parties and each of their respective representatives,
successors and assigns, subject to the provisions herein restricting assignment
or subletting.
26.9 This Lease contains and embodies the entire agreement of the
parties hereto and supersedes all prior agreements, negotiations, letters of
intent, proposals, representations, warranties, understandings, suggestions and
discussions, whether written or oral, between the parties hereto. Any
representation, inducement, warranty, understanding or agreement that is not
expressly set forth in this Lease shall be of no force or effect. This Lease may
be modified or changed in any manner only by an instrument signed by both
parties. This Lease includes and incorporates all Exhibits attached hereto.
26.10 This Lease shall be governed by the Laws of the jurisdiction
in which the Building is located. There shall be no presumption that this Lease
be construed more strictly against the party who itself or though its agent
prepared it, it being agreed that all parties hereto have participated in the
preparation of this Lease and that each party had the opportunity to consult
legal counsel before the execution of this Lease.
26.11 Headings are used for convenience and shall not be considered
when construing this Lease.
26.12 The submission of an unsigned copy of this document to Tenant
shall not constitute an offer or option to lease the Premises. This Lease shall
become effective and binding only upon execution and delivery by both Landlord
and Tenant subject to the following. This Lease is contingent upon any holder of
a Mortgage which encumbers the Building approving the Lease. In the event that
such holder does not approve the Lease, Landlord shall have the right to
terminate this Lease.
26.13 Time is of the essence with respect to each of Tenant's
obligations hereunder.
26.14 This Lease may be executed in multiple counterparts, each of
which shall be denied an original and all of which together constitute one and
the same document. Faxed signatures shall have the same binding effect as
original signatures.
26.15 Neither this Lease nor a memorandum thereof shall be recorded.
26.16 Landlord reserves the right to make reasonable changes and
modifications to the plans and specifications for the Building without Tenant's
consent, provided such changes or modifications do not materially and adversely
change the character of the Building.
26.17 Tenant's liabilities and obligations with respect to the
period prior to the expiration or earlier termination of the Lease Term shall
survive such expiration or earlier termination.
26.18 If Landlord or Tenant is in any way delayed or prevented from
performing any obligation due to fire, act of God, governmental act or failure
to act, strike, labor dispute, inability to procure materials, or any cause
beyond the other party's reasonable control (whether similar or dissimilar to
the foregoing events), then the time for performance of such obligation
48
shall be excused for the period of such delay or prevention and extended for a
period equal to the period of such delay, interruption or prevention; provided,
however, that nothing set forth in this Section 26.18 shall in any manner excuse
any failure on the part of Tenant to pay all Base Rent or additional rent in the
full amount due, as and when the same is due and payable under this Lease.
26.19 Landlord's review, approval and consent powers (including the
right to review plans and specifications) are for its benefit only. Such review,
approval or consent (or conditions imposed in connection therewith) shall be
deemed not to constitute a representation concerning legality, safety or any
other matter.
26.20 The deletion of any printed, typed or other portion of this
Lease shall not evidence the parties' intention to contradict such deleted
portion. Such deleted portion shall be deemed not to have been inserted in this
Lease.
26.21 At the expiration or earlier termination of the Lease Term,
Tenant shall deliver to Landlord all keys and security cards to the Building and
the Premises, whether such keys were furnished by Landlord or otherwise procured
by Tenant, and shall inform Landlord of the combination of each lock, safe and
vault, if any, in the Premises.
26.22 Tenant and the person executing and delivering this Lease on
Tenant's behalf each represents and warrants that such person is duly authorized
to so act; that Tenant is duly organized, is qualified to do business in the
jurisdiction in which the Building is located, is in good standing under the
Laws of the state of its organization and the Laws of the jurisdiction in which
the Building is located, and has the power and authority to enter into this
Lease; and that all action required to authorize Tenant and such person to enter
into this Lease has been duly taken.
26.23 Any elimination or shutting off of light, air, or view by any
structure which may be erected on lands adjacent to the Building shall in no way
effect this Lease or impose any liability on Landlord.
26.24 The parties intend that all payments made to Landlord under
this Lease will qualify as rents from real property for purposes of Section
512(b)(3) of the Internal Revenue Code of 1986, as amended ("Qualified Rents").
If Landlord, in its sole discretion, advises Tenant that there is any risk that
all or part of any payments made under this Lease will not qualify as Qualified
Rents, Tenant agrees (i) to cooperate with landlord to restructure this Lease in
such manner as may be necessary to enable such payments to be treated as
Qualified Rents, and (ii) to permit an assignment of this Lease, in each case
provided such restructuring or assignment will not have a material economic
impact on Tenant.
26.25 The Landlord is a party to a certain Traffic Mitigation
Agreement ("TMA") with ▇▇▇▇▇▇▇▇▇▇ County, Maryland, which is recorded among the
Land Records of ▇▇▇▇▇▇▇▇▇▇ County, Maryland in Liber 16192, at Folio 552, as may
be amended from time to time, and which TMA obligates Landlord to undertake
certain actions in order to reduce peak hour trips. Such action includes
appointing or employing a Building Transportation Coordinator to coordinate and
assist in efforts to promote alternatives to the use of single occupant vehicles
by
49
tenants and their employees, including, but not limited to, distributing
promotional materials, collecting applications and coordinating ridesharing and
coordination of activities with the Friendship Heights Transportation Management
District ("FHTMD").
Tenant shall cooperate with Landlord, the Building Transportation
Coordinator and the FHTMD in promoting ridesharing and the use of public
transportation among its employees. Such cooperation shall include, but not be
limited to, appointing an employee of Tenant to serve as a Tenant Transportation
Coordinator, who shall be responsible for the distribution of program
literature, registration forms and survey forms to Tenant's employees and
posting program brochures and posters on bulletin boards within the Premises.
In the event that the number of parking spaces in the Garage is reduced
pursuant to the TMA, irrespective of whether Tenant has complied with its
obligations under this Section 26.25, Tenant acknowledges and agrees that the
number of Parking Permits allocated or available to Tenant will be reduced
proportionately with the Parking Permits which are available to all other
tenants in the Building.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease
under seal as of the day and year first above written.
WITNESS: LANDLORD:
______/s/_________________ CHASE TOWER ASSOCIATES, L.L.C., a Delaware
limited liability company
By: JBG/JER CHASE TOWER INVESTORS, L.L.C., a
Delaware limited liability company, its
Managing Member
By: JBG/BANNOCKBURN PARTNERS, L.L.C., a
Delaware limited liability company, its
Operating Member
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ [SEAL]
-------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
WITNESS: TENANT:
______/s/_________________ CAPITALSOURCE FINANCE LLC, a Delaware limited
liability company
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ [SEAL]
-----------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President and General Counsel
50
EXHIBIT A
PLAN SHOWING PREMISES
12TH FLOOR
[GRAPHIC OF FLOOR PLAN]
5c.ale: 1" = 50'-0"
CHASE TOWER
FRIENDSHIP HEIGHTS MD
A-1
EXHIBIT B
[Intentionally omitted.]
B-1
EXHIBIT C
RULES AND REGULATIONS
The following rules and regulations have been formulated for the safety
and well-being of all tenants of the Building. Strict adherence to these rules
and regulations is necessary to guarantee that every tenant will enjoy a safe
and undisturbed occupancy of its premises. Any violation of these rules and
regulations by Tenant shall constitute a default by Tenant under the Lease. The
rules and regulations are as follows:
Tenant shall not obstruct or encumber or use for any purpose other than
ingress and egress to and from the Premises any sidewalk, entrance, passage,
court, elevator, vestibule, stairway, corridor, hall or other part of the
Building not exclusively occupied by Tenant. No bottles, parcels or other
articles shall be placed, kept or displayed on window ledges, in windows or in
corridors, stairways or other public parts of the Building. Tenant shall not
place any showcase, mat or other article outside the Premises.
1. Landlord shall have the right to control and operate the
public portions of the Building and the facilities furnished for common use of
the tenants, in such manner as Landlord deems best for the benefit of the
tenants generally. Tenant shall not permit the visit to the Premises of persons
in such numbers or under such conditions as to interfere with the use and
enjoyment of the entrances, corridors, elevators and other public portions or
facilities of the Building by other tenants. Tenant shall coordinate in advance
with Landlord's property management department all deliveries to the Building so
that arrangements can be made to minimize such interference. Tenant shall not
permit its employees and invitees to congregate in the elevator lobbies or
corridors of the Building. Canvassing, soliciting and peddling in the Building
are prohibited, and Tenant shall cooperate to prevent the same.
2. Tenant shall not attach, hang or use in connection with any
window or door of the Premises any drape, blind, shade or screen, without
Landlord's prior written consent. All awnings, drapes projections, curtains,
blinds, shades, screens and other fixtures shall be of a quality, type, design
and color, and shall be attached in a manner, approved in writing by Landlord.
Any Tenant-supplied window treatments shall be installed behind Landlord's
standard window treatments so that Landlord's standard window treatments will be
what is visible to persons outside the Building. Drapes (whether installed by
Landlord or Tenant) which are visible from the exterior of the Building shall be
cleaned by Tenant at least once a year, without notice from Landlord, at
Tenant's own expense.
3. Tenant shall not use the water fountains, water and wash
closets, and plumbing and other fixtures for any purpose other than those for
which they were constructed, and Tenant shall not place any debris, rubbish, rag
or other substance therein (including, without limitation, coffee grounds). All
damages from misuse of fixtures shall be borne by the tenant causing same.
4. Tenant shall not construct, maintain, use or operate within
the Premises any electrical device, wiring or apparatus in connection with a
loudspeaker system or other sound system, in connection with any excessively
bright, changing, flashing, flickering or moving light or lighting device, or in
connection with any similar device or system, without Landlord's prior
C-1
written consent. Tenant shall not construct, maintain, use or operate any such
device or system outside of its Premises or within such Premises so that the
same can be heard or seen from outside the Premises. No flashing, neon or search
lights shall be used which can be seen outside the Premises.
5. Tenant shall not bring any bicycle, vehicle, animal, bird or
pet of any kind into the Building, except seeing-eye or hearing-ear dogs for
handicapped persons visiting the Premises.
6. Except as specifically provided to the contrary in the Lease,
Tenant shall not ▇▇▇▇ or permit any cooking on the Premises, except for
microwave cooking and use of coffee machines by Tenant's employees for their own
consumption. Tenant shall not install any microwave oven or coffee machine in
the Premises without Landlord's prior written approval of such equipment and its
location within the Premises. Tenant shall not cause or permit any unusual or
objectionable odor to be produced upon or emanate from the Premises.
7. Tenant shall not make any unseemly or disturbing noise or
disturb or interfere with occupants of the Building.
8. Tenant shall not place on any floor a load exceeding the floor
load per square foot which such floor was designed to carry. Landlord shall have
the right to prescribe the weight, position and manner of installation of safes
and other heavy equipment and fixtures. Landlord shall have the right to repair
at Tenant's expense any damage to the Premises or the Building caused by
Tenant's moving property into or out of the Premises or to require Tenant to do
the same. Tenant shall not receive into the Building or carry in the elevators
any safes, freight, furniture, equipment or bulky item except as approved by
Landlord, and any such furniture, equipment and bulky item shall be delivered
only through the designated delivery entrance of the Building and the designated
freight elevator at designated times. Tenant shall remove promptly from any
sidewalk adjacent to the Building any furniture, furnishing, equipment or other
material there delivered or deposited for Tenant.
9. Tenant shall not place additional locks or bolts of any kind
on any of the doors or windows, and shall not make any change in any existing
lock or locking mechanism therein, without Landlord's prior written approval.
Tenant shall keep doors leading to a corridor or main hall closed at all times
except as such doors may be used for ingress or egress and shall lock such doors
during all times the Premises are unattended. Tenant shall, upon the termination
of its tenancy: (a) restore to Landlord all keys and security cards to stores,
offices, storage rooms, toilet rooms, the Building and the Premises which were
either furnished to, or otherwise procured by, Tenant, and in the event of the
loss of any keys so furnished, Tenant shall pay the replacement cost thereof;
and (b) inform Landlord of the combination of any lock, safe and vault in the
Premises. At Landlord's request, a charge of three dollars ($3.00) per key shall
be paid for all keys in excess of thirty (30) for each public entrance door to
the Premises. Tenant's key system shall be consistent with that for the rest of
the Building.
10. Tenant shall not install or operate in the Premises any
electrically operated equipment or machinery which would result in Tenant using
more electric power than the maximum capacity which is described in Section 14.5
hereof without obtaining the prior written consent of Landlord. Landlord may
condition such consent upon Tenant's payment of additional
C-2
rent in compensation for the excess consumption of electricity or other
utilities and for the cost of any additional wiring or apparatus that may be
occasioned by the operation of such equipment of machinery. Tenant shall not
install any equipment of any type or nature that will or may necessitate any
changes, replacements or additions to, or changes in the use of, the water
system, heating system, plumbing system, air-conditioning system, electrical
system or life safety system of the Premises or the Building, without obtaining
Landlord's prior written consent, which consent may be granted or withheld in
Landlord's sole and absolute discretion. If any machine or equipment of Tenant
causes noise or vibration that may be transmitted to such a degree as to be
objectionable to Landlord or any tenant in the Building, then Landlord shall
have the right to install at Tenant's expense vibration eliminators or other
devices sufficient to reduce such noise and vibration to a level satisfactory to
Landlord or to require Tenant to do the same.
11. Landlord reserves the right to exclude from the Building at
all times any person who does not properly identify himself to the Building
management or attendant on duty. Landlord shall have the right to exclude any
undesirable or disorderly persons from the Building at any time. Landlord may
require all persons admitted to or leaving the Building to show satisfactory
identification and to sign a register.
12. Tenant shall not permit or encourage any loitering in or about
the Premises and shall not use or permit the use of the Premises for lodging,
dwelling or sleeping.
13. Tenant, before closing and leaving the Premises at any time,
shall see that all windows are closed and all lights and equipment are turned
off, including, without limitation, coffee machines.
14. Tenant shall not request Landlord's employees to perform any
work or do anything outside of such employees' regular duties without Landlord's
prior written consent. Tenant's special requirements will be attended to only
upon application to Landlord, and any such special requirements shall be billed
to Tenant in accordance with the schedule of charges maintained by Landlord from
time to time or as is agreed upon in writing in advance by Landlord and Tenant.
Tenant shall not employ any of Landlord's employees for any purpose whatsoever
without Landlord's prior written consent.
15. There shall not be used in any space, or in the public halls
of the Building, either by any tenant or by jobbers or others in the delivery or
receipt of merchandise, any hand trucks, except those equipped with rubber tires
and side guards. Tenant shall be responsible for any loss or damage resulting
from any deliveries made by or for Tenant.
16. Tenant shall not install or permit the installation of any
wiring for any purpose on the exterior of the Premises.
17. Tenant acknowledges that it is Landlord's intention that the
Building be operated in a manner which is consistent with the highest standards
of cleanliness, decency and morals in the community which it serves. Toward that
end, Tenant shall not sell, distribute, display or offer for sale any item
which, in Landlord's judgment, is inconsistent with the quality of operation of
the Building or may tend to impose or detract from the moral character or image
of the Building. Tenant shall not use the Premises for any immoral or illegal
purpose.
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18. Unless otherwise expressly provided in the Lease, Tenant shall
not use, occupy or permit any portion of the Premises to be used or occupied for
the storage, manufacture, or sale of liquor.
19. If Tenant provides any of such services, Tenant shall purchase
or contract for waxing, rug shampooing, venetian blind washing, interior glass
washing, furniture polishing, janitorial work, removal of any garbage from any
dining or eating facility or for towel service in the Premises, only from
contractors, companies or persons approved by Landlord.
20. Tenant shall not remove, alter or replace the ceiling light
diffusers, ceiling tiles or air diffusers in any portion of the Premises without
the prior written consent of Landlord.
21. Tenant shall not purchase water, ice, coffee, soft drinks,
towels, or other merchandise or services from any company or person whose
repeated violation of Building regulations has caused, in Landlord's opinion, a
hazard or nuisance to the Building and/or its occupants.
22. Tenant shall not pay any employee on the Premises except those
actually employed therein; nor shall Tenant use the Premises as headquarters for
large scale employment of workers for other locations.
23. Landlord shall have the right, upon written notice to Tenant,
to require Tenant to refrain from or discontinue any advertising by Tenant which
uses the name or address of the Building, or both, or the name of Landlord, and
which, in Landlord's opinion, tends to impair the reputation of the Building or
its desirability for offices.
24. Tenant shall not in any manner deface any part of the Premises
or the Building. No stringing of wires, boring or cutting shall be permitted
except with Landlord's prior written consent. Any floor covering installed by
Tenant shall have an under layer of felt rubber, or similar sound deadening
substance, which shall not be affixed to the floor by cement or any other
non-soluble adhesive materials.
25. Should Tenant's use and occupancy of the Premises require the
installation of supplemental cooling, and should the Building contain a closed
loop, Tenant agrees that its supplemental cooling requirements will be serviced
by tapping into the Building's closed loop. Tenant shall be responsible for the
cost of connecting into the loop and agrees to pay to Landlord as additional
rent the monthly tap fee in accordance with Landlord's then-current rate
schedule. Should the Building not contain a closed loop, Tenant agrees to be
responsible for fees associated with placing equipment on the roof of the
Building.
26. Each Tenant shall handle its newspapers and "OFFICE PAPER" in
the manner required by Law and shall conform with any recycling plan instituted
by Landlord.
27. Except as provided in the Lease, Tenant shall not bring or
keep, or permit to be brought or kept, in the Building any weapon or flammable,
combustible or explosive fluid, chemical or substance.
C-4
28. Tenant shall comply with all workplace smoking Laws. There
shall be no smoking in the Premises nor in any bathrooms, elevator lobbies,
elevators, or other common areas.
29. Landlord may, upon request of Tenant, waive Tenant's
compliance with any of the rules, provided that (a) no waiver shall be effective
unless signed by Landlord, (b) no waiver shall relieve Tenant from the
obligation to comply with such rule in the future unless otherwise agreed in
writing by Landlord, (c) no waiver granted to any tenant shall relieve any other
tenant from the obligation of complying with these rules and regulations, and
(d) no waiver shall relieve Tenant from any liability for any loss or damage
resulting from Tenant's failure to comply with any rule.
The following rules shall be applicable to retail tenants only:
Tenant shall replace promptly any cracked or broken glass in the
Premises (including without limitation all windows, display cases, countertops
and doors) with glass of like color, kind and quality.
1. Tenant shall not operate its business in a manner which is
commonly known as a "DISCOUNT HOUSE", "WHOLESALE HOUSE", "CUT-RATE STORE", OR
"OUTLET STORE", and shall not conduct any "FIRE SALE," "GOING OUT OF BUSINESS
SALE," "BANKRUPTCY SALE" or auction within the Premises.
2. Tenant shall not receive or ship articles of any kind outside
the designated loading area for the Premises or other than during the designated
loading times.
3. Tenant shall keep any garbage, trash, rubbish or other refuse
in rat-proof containers within the interior of the Premises; deposit daily such
garbage, trash, rubbish and refuse in receptacles designated by Landlord; and
enclose and/or shield such receptacles in a manner approved by Landlord.
4. Tenant shall not sell, display or offer for sale any ▇▇▇▇▇
clip, water pipe, bong, coke spoon, cigarette papers, hypodermic syringe or
other paraphernalia which in Landlord's opinion are commonly used in connection
with illegal drugs, or any pornographic, lewd, suggestive or "ADULT" newspaper,
book, magazine, film, picture or merchandise of any kind.
5. Tenant shall not install burglar bars in or to the Premises
without Landlord's prior approval and if requested to do so by Landlord, install
a locking system compatible with the locking system being used by Landlord at
the Building.
C-5
EXHIBIT D
CERTIFICATE AFFIRMING THE LEASE COMMENCEMENT DATE
This Certificate is being provided pursuant to that certain Office
Lease Agreement dated as of December 8, 2000 (the "LEASE"), by and between CHASE
TOWER ASSOCIATES, L.L.C., a Delaware limited liability company ("LANDLORD") and
CAPITALSOURCE FINANCE LLC, a Delaware limited liability company ("TENANT"). The
parties to the Lease desire to confirm the following:
The Lease Commencement Date is 11/09/01.
The initial term of the Lease shall expire on 12/31/2011.
The date by which Tenant must give Landlord written notice of Tenant's
election to exercise its renewal option pursuant to Section 3.5(a) of the Lease
is 3/31/11,and the Fifteen Month Threshold Date described in Section 3.5(a) of
the Lease is 3/31/10.
Attached to this Certificate is evidence of payment of premiums for all
insurance required pursuant to the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Certificate
under seal on __________________,_________.
WITNESS: LANDLORD:
CHASE TOWER ASSOCIATES, L.L.C., a Delaware limited
liability company
By: CHASE TOWER INVESTORS, L.L.C., a Delaware limited
liability company
By: JBG/BANNOCKBURN PARTNERS, L.L.C., a Delaware
limited liability company, its Managing Member
By:_________________________[SEAL]
Name:_____________________________
Title:____________________________
WITNESS: TENANT:
CAPITALSOURCE FINANCE LLC, a Delaware limited
liability company
By:_________________________________[SEAL]
Name:_______________________________
Title:______________________________
D-1
EXHIBIT E
DESCRIPTION OF BASE BUILDING
E-1
EXHIBIT E
OFFICE SHELL DEFINITION
Structure Concrete frame with deck, 80 lbs/sq. ft.
live load capacity. 20 lbs/ sq. ft.
partition load.
Exterior Architectural precast concrete and stone
with low-E insulated windows and curtainwall
Column Spacing Varies 30 feet x 30 feet typical
Roof Modified bituminous roofing with a 20-year
warranty.
Floor to Floor 11.5 feet typical
Finished Ceiling Height 9 feet on typical office floors
HVAC System The HVAC system will be floor by floor,
water cooled, self contained, variable air
volume (VAV), air conditioning units. System
allows for independent operation on each
floor. Typical office area HVAC units will
be sized for 250 sq. ft. per ton. VAV boxes
will be provided at a ratio of 1 per 950
rentable square feet. Additional VAV boxes
to meet tenant requirements, diffusers, and
flex duct will be part of the tenant
improvement allowance.
Building HVAC design criteria shall be:
Heating: Maintain tenant area space
temperature at 70 degrees F DB +/- 2
degrees, when outdoor temperature is 10
degrees F DB. Indoor relative humidity is
expected to be approximately 25% +/5%.
Cooling: Maintain tenant area space
temperature at 75 degrees F DB +/-2 degrees,
indoor relative humidity 50%, when outdoor
temperature is 95 degrees F DB and 79
degrees WB (ASHRAE 1%).
Fresh air will be provided to each
mechanical room via medium pressure ducted
risers and VAV valves at the rate of 20 CFM
per person consistent with current ASHRAE
Guidelines.
A roof mounted cooling tower will provide
condenser water to risers with valved taps
at each floor for future tenant 24 hr./7day
supplemental units. There will be
approximately 100 tons of capacity dedicated
to all office tenant prospective needs. The
condenser water will be metered for each
tenant.
E-2
Electrical System Three (3) electrical service entrances with
utility company transformers located in
vaults on exterior of building will supply
three phase, four-wire 480/277 -volt
service. Typical building electrical
distribution system will include plug in bus
duct risers (2 per floor); double section
high and low voltage panels and K-13 rated
transformers. Power available for tenant use
will be 6.0 ▇▇▇▇▇/sq. ft. low voltage and
3.5 ▇▇▇▇▇/sq. ft. high voltage for lighting.
Power systems/capacities will be upgradeable
for tenant flexibility.
Space will be allotted within the first
level of the parking garage below grade for
a future tenant generator.
Life Safety Fire standpipe and base building fire alarm
system will be installed per high rise
building code. Upturned sprinkler heads will
be provided in accordance with NFPA 13 at a
spacing of one head per 225 sq. ft. The base
system will be sized to support a sprinkler
head density of 125 sq. ft. per head. Fire
Alarm system will be a fully supervised,
non-coded, addressable analog initiating,
voice alarm system conforming to ADA and
BOCA high rise codes. An emergency generator
will be provided for elevator recall, fire
pump, stair pressurization, emergency
lighting, fire alarm, and other life safety
systems.
Wet Columns Two wet columns are provided per floor for
use by Tenant. Each wet column consists of
sanitary, plumbing vent and domestic water
supply.
Window Coverings One inch aluminum, white slat venetian
blinds.
Energy Management An automated, direct digital control energy
management system will be installed under
base building.
Elevators Five traction passenger elevators, 400 feet
per minute, with 4,000 lb. capacity. One of
these is a dual use passenger/service
elevator with a rear door opening to a
service corridor on the 1st floor.
Security System Perimeter, elevators, and garage.
Rest Rooms One set of women's and men's restrooms will
be fully finished on each floor with base
building.
Typical Floor Lobbies Typical floor lobby finishes and finishes to
corridors connecting stairs will be included
in tenant allowance.
Fiber Optics Telephone and fiber optics sources will be
available via trunk ▇▇▇▇▇ located adjacent
to the property. Vertical riser sleeves are
provided at each floor telephone closet to
accommodate future T-1 lines for connection
to the Internet.
E-3
EXHIBIT F
BASE RENT SCHEDULE
Base Rent
Lease Per Square Foot Base Rent Base Rent
Year Per Annum Per Annum Per Month
1 $38.50 $646,761.50 $53,896.79
2 $39.66 $666,248.34 $55,520.70
3 $40.85 $686,239.15 $57,186.60
4 $42.08 $706,901.92 $58,908.49
5 $43.34 $728,068.66 $60,672.39
6 $45.34 $761,666.66 $63,472.22
7 $46.70 $784,513.30 $65,376.11
8 $48.10 $808,031.90 $67,335.99
9 $49.54 $832,222.46 $69,351.87
10 $51.03 $857,252.97 $71,437.75
TENANT IMPROVEMENTS REIMBURSEMENT RENT
Tenant Improvements
Reimbursement Rent Tenant Improvements Tenant Improvements
Lease Rent Per Square Reimbursement Rent Reimbursement Rent
Year Foot Per Annum Per Annum Per Month
---- -------------- --------- ---------
1 $1.59 $26,240.00 $ 2,220.00
2 $1.59 $26,240.00 $ 2,220.00
3 $1.59 $26,240.00 $ 2,220.00
4 $1.59 $26,240.00 $ 2,220.00
5 $1.59 $26,240.00 $ 2,220.00
6 $1.59 $26,240.00 $ 2,220.00
7 $1.59 $26,240.00 $ 2,220.00
8 $1.59 $26,240.00 $ 2,220.00
9 $1.59 $26,240.00 $ 2,220.00
10 $1.59 $26,240.00 $ 2,220.00
F-1
EXHIBIT G
CLEANING SPECIFICATIONS
LAVATORIES:
Lavatories - Daily:
Wash:
a. Shelves
b. Brightwork (Handles, Piping, Hinges)
c. Sinks
d. Urinals
e. Toilets
f. Floors
g. Tile Walls - Spot Clean
h. Partitions and Legs
i. Vents
j. Receptacles
k. Mirrors
Stock with supplies furnished by contractor:
a. Handsoap
b. Towels
c. Tissue
d. Sanitary Napkins
e. Seat Covers
Polish to remove water spots:
a. Brightwork
b. Mirrors
c. Shelves
d. Partitions
LAVATORIES - SPECIAL INSTRUCTIONS
Tile Floors
Tile floors will be mopped daily using a germicidal detergent. Any stained areas
will be machine scrubbed daily as required to maintain a uniform appearance.
Floors will be stripped and waxed as needed.
G-1
Tile Walls
Tile walls will be spot cleaned with disinfectant. Walls will be completely
cleaned monthly or as needed.
Partitions
Partitions will be entirely wiped clean daily. Supporting legs will be cleaned
monthly or as needed.
Trash Receptacles
Trash will be removed daily. Plastic liners will be provided and changed daily
in all types of receptacles.
Hand Soap Dispensers
Hand soap dispensers will be checked daily for adequate supply levels and will
be filled as necessary.
Paper Supplies
All paper dispensers will be filled completely each night. In some areas, it may
be necessary to place extra rolls of wrapped paper so that no shortages occur.
High Dusting
All high fixtures and lights will be dusted as needed.
Carpeted Floors
All carpeted bathroom areas will be vacuumed daily and shampooed as needed.
OFFICES, HALLWAYS, AND PUBLIC AREAS:
Waste Baskets - Daily
Waste baskets to be emptied daily. Plastic liners to be provided to tenant waste
baskets and changed as needed. Only remove trash in waste can or clearly marked
"trash".
Ashtrays - Daily
Ashtrays to be emptied and wiped clean daily. Sand levels will be maintained in
cigarette urns.
Dusting - Daily
G-2
All furniture and flat surfaces will be dusted daily with a treated cloth. Desks
and tables not cleared of paper and work materials will only be dusted where
desk is exposed. Papers are not to be moved. Telephones, glass desk tops and
tables will be damp wiped.
Spot Cleaning - Daily
All hand prints and spots will be removed from doors and light switches.
Woodwork and interior glass will be spot cleaned as needed.
Vacuuming - Daily/Weekly
All rugs and carpets will be vacuumed daily in all traffic areas. Hard-to-reach
spots, such as comers, under desks and chairs, behind plants, etc., shall be
vacuumed weekly with accessory tools, with light furniture moved to accomplish
cleaning.
Carpet Spot Cleaning - Daily
An effort will be made to remove carpet spots and stains.
Tile Floors - Daily
All tile floors will be dusted daily and mopped as needed. Extreme care shall be
exercised in all mopping so as to avoid splashing walls, furniture, or carpet.
All tile floors will be buffed as required to maintain a lustrous finish.
Water Coolers - Daily
Water coolers shall be cleaned and polished.
Main Lobby and Corridor Floors
Mop floors daily and buff as required to maintain a lustrous finish.
Elevators - Daily
Interior surfaces and all doors to be spot cleaned for fingerprints.
Entrance Door Glass - Daily
All entrance door glass shall be spot cleaned.
Stairways and Landings - Weekly
Spot cleaning of walls and doors will be done weekly. Handrails, ledges, fire
points, and miscellaneous hardware will be cleaned weekly. Day ▇▇▇▇▇▇ will be
responsible for sweeping and mopping stairwells and landings weekly.
G-3
Elevators - Monthly
Carpets will be shampooed as needed.
Glass Partitions and Doors - Monthly
All glass partitions and doors will be cleaned with ammonia using a squeegee,
clean rag, or paper towels.
Air Conditioning Grills - Monthly
All areas around air conditioning and return air grills will be cleaned once
each month or more often, if necessary. Care will be taken so as to prevent dirt
from falling on floor or other surfaces.
Tile Floors - Monthly
Machine stripping and/or scrubbing shall be accomplished as needed to remove
dirt-embedded finishes, stains, spillage and wax buildup. New wax and sealer, if
required, will then be applied.
Venetian Blinds - Monthly
All venetian blinds will be dusted and/or damp wiped as needed.
Entrance Mats - Monthly
Entrance mats will be shampooed as needed.
High Dusting - Quarterly
Pipes, ledges, ceilings, sprinklers, moldings, picture frames, etc., will be
dusted every three months or more frequently if necessary.
Lavatories - Quarterly
Strip and wax tile floors completely.
Carpet "Shampooing" - Annually
All carpeted public areas to be "shampooed."
Special Floor Coverings - As Necessary
Parquet, quarry, ceramic, raised computer floors, and other special floor
coverings will be treated with appropriate methods and materials.
Walls, Woodwork and Partitions - As Necessary
All walls and ceilings will be brushed down as necessary with approved wall
duster or a vacuum cleaner.
G-4
EXHIBIT H
[This instrument was prepared by _________________________________________ whose
address is ____________________________________.]
SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS AGREEMENT, made as of this _________day of ______________ , ______
between ____ ____________________________________, a ___________________
corporation (hereinafter referred to as "Lessee") and WACHOVIA BANK, N.A.
(hereinafter referred to as "Lender").
RECITALS:
1. Lender is now the owner and holder of a first [Deed
of Trust] [Mortgage] [Deed to Secure Debt], dated ___________ , in the principal
amount of __________________________________________________________________AND
NO/100 DOLLARS ($ ____________) (hereinafter referred to as the "Security
Instrument") on the real estate more particularly described in the Security
Instrument. The Security Instrument is recorded in the official real estate
records of ▇▇▇▇▇▇▇▇▇▇ County,.
2. Lessee is the holder of a lease (hereinafter referred
to as the "Lease"), dated ___________between ___________________________________
________________(hereinafter referred to as "Lessor"), as Lessor, and __________
____________ as Lessee, the demising for a term of years certain premises
described as: _________________________________________________(the "Premises").
3. Lessee and Lender desire to confirm their
understanding with respect to the Lease and the Security Instrument;
NOW, THEREFORE, in consideration of One Dollar ($1.00) and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Lender and Lessee hereby agree and covenant as follows:
FIRST: The Lease shall be subject and subordinate to the
Security Instrument and to all renewals, modifications or extensions thereof.
SECOND: So long as Lessee is not in default (beyond any period
given Lessee to cure such default) in the payment of rent or additional rent or
in the performance of any of the terms, covenants or conditions of the Lease on
Lessee's part to be performed, Lessee's possession of the premises described in
the Lease and Lessee's rights and privileges under the Lease, or any extensions
or renewals thereof which may be effected in accordance with any option therefor
in the Lease, shall not be diminished or interfered with by Lender and Lessee's
occupancy of said premises shall not be disturbed by Lender for any reason
whatsoever during the term of the lease or any extensions or renewals thereof.
THIRD: If the interests of Lessor shall be transferred to and
owned by Lender by reason of foreclosure or other proceedings brought by it or
by any other manner, and Lender
H-1
succeeds to the interest of the Lessor under the Lease, Lessee shall be bound to
Lender under all of the terms, covenants and conditions of the Lease for the
balance of the term thereof remaining and any extensions or renewals thereof
which may be effected in accordance with any option thereof in the Lease, with
the same force and effect as if Lender were the Lessor under the Lease, and
Lessee does hereby attorn to Lender as its Lessor, said attornment to be
effective and self-operative without the execution of any further instruments on
the part of either of the parties hereto immediately upon Lender succeeding to
the interest of the Lessor under the Lease; provided, however, that Lessee shall
be under no obligation to pay rent to Lender, as Lessor, pursuant to this
Agreement until Lessee receives written notice from Lender that it has succeeded
to the interest of Lessor under the Lease. The respective rights and obligations
of Lessee and Lender upon said attornment, to the extent of the then remaining
balance of the term of the Lease and any such extensions and renewals, shall be
and are the same as now set forth therein; it being the intention of the parties
hereto for this purpose to incorporate the Lease in this Agreement by reference
with the same force and effect as if set forth at length herein.
FOURTH: Lessee certifies that (a) the Lease is presently in
full force and effect; (b) no rent under the Lease has been paid more than
thirty (30) days in advance of its due date, except ; ___________(c) that
Lessee, as of this date, has no charge, lien or claim of offset under the Lease,
or otherwise, against the rents or other amounts due or to become due
thereunder, except ; __________(d) the Lessee is the owner of the "Tenant's" or
"Lessee's" interest in the Lease and has not transferred or assigned the Lease
or sublet the Premises demised thereby; (e) to the best knowledge of the Lessee,
neither the Lessee nor the Lessor is in any way in default under the Lease; (f)
the Lessee has accepted and now occupies the Premises, and is and has been open
for business since ; ____________(g) the lease term began _____________and the
rent for said Premises has been paid to and including ; ________________
(h) the fixed minimum annual rent being paid is $ _____________; and (i) no
actions, whether voluntary or otherwise, are pending against the Lessee under
the bankruptcy or insolvency laws of the United States or any state thereof.
[DRAFTING NOTE: ITEMS (f), (g) AND (h) ABOVE WILL NOT BE APPLICABLE FOR
CONSTRUCTION LOANS AND CAN BE DELETED.]
FIFTH: If Lender shall succeed to the interest of Lessor under
the Lease, Lender shall be bound to Lessee under all terms, covenants and
conditions of the Lease, and Lessee shall, from and after Lender's succession to
the interest of Lessor under the Lease, have the same remedies against Lender
for the breach of an agreement contained in the Lease that Lessee might have had
under the Lease against Lessor if Lender had not succeeded to the interest of
Lessor; provided further, however, that Lender shall not be:
(a) liable for any act or omission of any prior landlord
(including the Lessor), except to the extent that such act or omission
constitutes a default under the Lease that is continuing after Lender takes
title to and possession of the Property, and provided Lender received prior
written notice of such act or omission as required under this Agreement and was
afforded the right to cure in accordance with this Agreement; or
(b) subject to any offsets or defenses which the Lessee
might have against any prior landlord (including the Lessor); or
H-2
(c) liable for the return of any security deposits not
delivered to Lender; or
(d) bound by any rent or additional rent which Lessee might
have paid for more than the current month to any prior landlord (including
Lessor) for more than one (1) month in advance of its due date; or
(e) bound by any amendment or modification of the Lease
made without Lender's consent; or
(f) except for the obligation to pay the Tenant Allowance
to Tenant upon the terms and conditions set forth in the Lease obligated to
construct or finish the construction or to renovate or finish the renovation of
the premises described in the Lease, unless it expressly assumes such obligation
after it succeeds to the interest of the Lessor under the Lease.
SIXTH: The Lease now is, and shall at all times continue to
be, subject and subordinate in each and every respect, to the Security
Instrument and to any and all renewals, modifications and extensions thereof,
but any and all such renewals, modifications and extensions shall nevertheless
be subject to and entitled to the benefits of the terms of this Agreement.
SEVENTH: Lessee will notify Lender, by registered or certified
mail, return receipt requested, of any default of Lessor which would entitle
Lessee to cancel the Lease or ▇▇▇▇▇ the rent payable thereunder, and agrees that
notwithstanding any provision of the Lease, no notice of cancellation thereof,
nor any abatement shall be effective unless Lender has received the notice
aforesaid and has failed within 30 days of the date thereof to cure or if the
default cannot be cured within 30 days has failed to commence and to diligently
prosecute the cure of Lessor's default which gave rise to such right of
cancellation or abatement. The address of the Lender is ________________________
____________________________________________________________________,Attention:
__________________.
EIGHTH: This Agreement and the Lease may not be modified
except by an agreement in writing signed by the parties hereto.
NINTH: This Agreement may be recorded by either party at the
cost of the recording party.
IN WITNESS WHEREOF, the parties hereto have hereunto caused
this Agreement to be duly executed under seal as of the day and year first above
written.
LENDER:
[Insert Wachovia's signature
and notary or witness from the
signature/notary form for the
applicable state.]
H-3
LESSEE:
[Insert the appropriate
signature and notary or witness
for the lessee from the
signature/notary form for the
applicable state.]
H-4
EXHIBIT I
TENANT ESTOPPEL CERTIFICATE
Reference is made to that certain Lease dated __________ , __________
(the "Lease") entered into between______, as "Landlord" therein (the "Landlord")
and the undersigned, as "Tenant" therein, demising for a term of years certain
premises described as: _________________________________________________________
________________________________________________________________________________
____________________________________(the "Premises").
The undersigned certifies to WACHOVIA BANK, N.A. (the "Lender") as
follows:
1. The undersigned is the owner of the "Tenant's" or "Lessee's"
interest in the Lease and has not transferred or assigned the Lease or sublet
the Premises demised thereby.
2. The Lease is presently in full force and effect.
3. To the best knowledge of the undersigned, neither party to the
Lease is in any way in default thereunder.
4. No advance rent under the Lease has been paid more than one
(1) mouth in advance of its due date, except ________________.
5. The undersigned, as of this date, has no charge, lien, or
claim of offset under the Lease or otherwise, against rents or other charges due
or to become due thereunder, except
6. The undersigned has accepted and now occupies the Premises,
and is and has been open for business since ________________. The lease term
began ____________________________and the rent for said Premises has been paid
to and including ________________________ . The fixed minimum annual rent being
paid is $ _________________ .
7. No actions, whether voluntary or otherwise, are pending
against the undersigned under the bankruptcy or insolvency laws of the United
States or any state thereof.
I-1
The undersigned further agrees with the Lender, its successors and
assigns, that it has not heretofore and will not, from and after the date
hereof, without the prior written consent of the Lender, pay any rent under the
Lease more than one (1) month in advance of its due date or surrender or consent
to the modification of any of the terms of the Lease or to the termination
thereof by Landlord.
IN WITNESS WHEREOF, the undersigned has caused this Certificate to be executed
this day of ____________, _______.
_________________________
(Name of Tenant)
By: _____________________
Title: __________________
_________________________
(Name of Tenant)
I-2
FIRST AMENDMENT TO OFFICE LEASE AGREEMENT
THIS FIRST AMENDMENT TO OFFICE LEASE AGREEMENT ("First Amendment") is
made this 10th day of May, 2002, by and between CHASE TOWER ASSOCIATES, L.L.C.,
a Delaware limited liability company ("Landlord"), and CAPITALSOURCE FINANCE
LLC, a Delaware limited liability company ("Tenant").
W I T N E S S E T H:
WHEREAS, by that certain Office Lease Agreement dated December 8, 2000
(the "Lease"), Landlord leased to Tenant, and Tenant leased from Landlord,
approximately 16,799 square feet of rentable area on the twelfth (12th) floor,
known as Suite 1200 (the "Original Premises"), in the building located at ▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Chevy Chase, Maryland (the "Building"), upon the terms and
conditions set forth in the Lease;
WHEREAS, Tenant desires to lease from Landlord, and Landlord desires to
lease to Tenant, an additional 7,463 rentable square feet of space located on
the eleventh (11th) floor of the Building and known as Suite 1130 (the
"Expansion Space"), and the parties desire to extend the term of the Lease with
respect to the Original Premises upon the terms and conditions hereinafter set
forth;
WHEREAS, the Original Premises and the Expansion Space are hereinafter
collectively referred to as the "Premises"; and
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WHEREAS, Landlord and Tenant desire to amend the Lease to reflect their
understanding and agreement with regard to the lease of such additional space,
and to otherwise amend the Lease, as more particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual promises herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto mutually agree
as follows:
1. Any capitalized terms used in this First Amendment and not
otherwise defined herein shall have the meanings ascribed to them in the Lease.
2. The Term of the Lease is hereby extended for the period (such
period being hereinafter referred to as the "Extension Period") commencing on
November 1, 2011 (the "Extension Period Commencement Date") and continuing
through and including August 14, 2012 (the "Extension Period Expiration Date"),
as hereinafter defined, unless earlier terminated pursuant to the provisions of
the Lease as modified by the provisions of this First Amendment, or pursuant to
law.
3. The definition of "Premises" in Section 1.2 of the Lease is
hereby amended with respect to all periods beginning on and after the Expansion
Space Commencement Date (as hereinafter defined) by inserting the following
language at the end thereof:
"Notwithstanding the foregoing, commencing on the Expansion
Space Commencement Date, as hereinafter defined, the Expansion Space
shall be deemed a part of the Premises, and thereafter the Premises
shall consist of approximately 24,262 square feet of rentable space."
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4. The definition of "Operating Charges Base Year" in Section 1.7
of the Lease is hereby amended by inserting the following language at the end
thereof:
"Notwithstanding the foregoing, commencing on the Expansion
Space Commencement Date, as hereinafter defined, the Operating Charges
Base Year shall be Calendar year 2003."
5. The definition of "Real Estate Taxes Base Year" in Section 1.8
of the Lease is hereby amended by inserting the following language at the end
thereof:
"Notwithstanding the foregoing, commencing on the Expansion
Space Commencement Date, as hereinafter defined, the Real Estate Taxes
Base Year shall be Calendar year 2003."
6. The definition of "Parking Permits" in Section 1.17 of the
Lease is hereby amended with respect to all periods beginning on and after the
Expansion Space Commencement Date (as hereinafter defined) by inserting the
following language at the end thereof:
"Notwithstanding the foregoing, commencing on the Expansion
Space Commencement Date, as hereinafter defined, Tenant shall have the
right to use forty-three (43) Parking Permits as provided in Article
XXIV of this Lease."
7. As if the Expansion Space Commencement Date, as hereinafter
defined, "Premises" as used in Article V of the Lease (captioned "Increase in
Operating Expenses and Real Estate Taxes") shall mean the Original Premises and
the Expansion Space. Article V of the Lease is hereby amended as follows:
(i) Section 5.2 is amended by deleting therefrom the language:
"Commencing on the first anniversary of the Lease Commencement Date" and
inserting in lieu thereof the language:
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"Commencing on the first anniversary of the Expansion Space Commencement Date".
(ii) Section 5.2(b) is hereby amended by deleting all of the
language therefrom and inserting in lieu thereof the following language:
"(b) If the average occupancy rate for the Building during any
calendar year (including the Operating Charges Base Year and
the Real Estate Taxes Base Year) is less than one hundred
percent (100%) or, solely with respect to Operating Expenses,
if any tenant is separately paying for (or does not require)
electricity or janitorial services to be furnished to its
premises, then (i) Operating Expenses for such year shall be
deemed to include all additional expenses, as reasonably
estimated by Landlord, which would have been incurred during
such year if such average occupancy rate had been one hundred
percent (100%) and if Landlord paid for electricity and
janitorial services furnished to such premises, and (ii) Real
Estate Taxes for such year shall be deemed to include all
additional Real Estate Taxes, as reasonably estimated by
Landlord, which would have been incurred during such year if
such average occupancy rate had been one hundred percent
(100%). In no event shall the provisions of this paragraph be
used to enable Landlord to collect from the tenants of the
Building more than one hundred percent (100%) of the costs and
expenses incurred by Landlord in owning, managing,
maintaining, repairing, operating and cleaning the Building
and the Land or more than one hundred percent (100%) of the
Real Estate Taxes."
(iii) Section 5.3 is amended by deleting therefrom the language
"Commencing on the first anniversary of the Lease Commencement Date" and
inserting in lieu thereof the following language:
"Commencing on the first anniversary of the Expansion Space
Commencement Date".
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8. Tenant's payment of Tenant Improvements Reimbursement Rent
shall continue pursuant to the provisions of Section 5.4 of the Lease and shall
not be affected by the Extension Period or this First Amendment.
9. Notwithstanding anything to the contrary contained in the
Lease, commencing on the Expansion Space Commencement Date, as hereinafter
defined, and continuing through the Extension Period, Tenant shall pay Amended
Space Base Rent for the Premises (comprising both the Original Premises and the
Expansion Space) in the following amounts:
Amended Space Base Rent
Lease Per Square Foot Base Rent Base Rent
Year Per Annum Per Annum Per Month
---- --------- --------- ---------
1 $ 38.50 $ 934,087.00 $ 77,840.58
2 $ 39.66 $ 962,230.92 $ 80,185.91
3 $ 40.85 $ 991,102.70 $ 82,591.89
4 $ 42.08 $1,020,944.96 $ 85,078.75
5 $ 43.34 $1,051,515.08 $ 87,626.26
6 $ 45.34 $1,100,039.08 $ 91,669.92
7 $ 46.70 $1,133,035.40 $ 94,419.62
8 $ 48.10 $1,167,002.20 $ 97,250.18
9 $ 49.54 $1,201,939.48 $100,161.62
10 $ 51.03 $1,238,089.86 $103,174.16
As of the Expansion Space Commencement Date, an "Amended Space Lease
Year" shall mean that period of twelve (12) consecutive calendar months that
commences on the first day of the month in which the Expansion Space
Commencement Date occurs and each consecutive twelve (12) month period
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thereafter. The earliest such twelve (12) month period shall be referred to as
"Amended Space Lease Year 1", and each of the following Amended Space Lease
Years shall be similarly numbered for identification purposes. The Amended Space
Base Rent shall be payable at the times and in the manner set forth in this
Lease for the payment of Base Rent. The rent schedule set forth on Exhibit F to
the Lease (captioned "Base Rent Schedule") shall be of no further force and
effect with respect to all periods beginning on and after the Expansion Space
Commencement Date (as hereinafter defined).
10. Notwithstanding the foregoing, Tenant covenants and agrees to
pay to Landlord Base Rent for the Original Premises at the same rate per
rentable square foot as is payable under the Original Lease for the period
commencing on the date of this First Amendment through and including August 14,
2002.
11. The Lease is hereby amended by adding thereto a new Article
XXVII, to read as follows:
"ARTICLE XXVII
EXPANSION SPACE
27.1. Term. Landlord hereby leases unto Tenant, and Tenant
hereby leases from Landlord, approximately 7,463 square feet of
rentable floor area (the `Expansion Space') located on the eleventh
(11th) floor of the Building, which Expansion Space is hereby agreed to
be that certain space which is shown on Exhibit J attached hereto and
made a part hereof and known as Suite 1130, for a term (the `Expansion
Space Term') commencing on August 15, 2002 (the `Expansion Space
Commencement Date') and continuing through and including the Extension
Period Expiration Date, unless earlier terminated pursuant to the
provisions of this Lease.
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27.2. Expansion Space Tenant's Work. Landlord shall deliver
the Expansion Space to Tenant in Shell Condition, as defined in Exhibit
K attached hereto and made a part hereof, following the day on which
Landlord executes that certain First Amendment to Office Lease
Agreement (the `First Amendment') after the execution thereof by
Tenant. Landlord is under no obligation to make any other improvements
to the Original Premises or the Expansion Space. Notwithstanding the
foregoing, Landlord shall make available for the performance of
Expansion Space Tenant's Work (as hereinafter defined) an allowance
(the `Expansion Space Tenant Allowance') in an amount equal to the
product of (a) Thirty-Five Dollars ($35.00) multiplied by (b) the
number of square feet of rentable area comprising the Expansion Space.
Landlord shall pay the Expansion Space Tenant Allowance to Tenant
following Tenant's completion of Expansion Space Tenant's Work (as
hereinafter defined) and upon the terms and conditions set forth in
Section 9.1 of the Lease with respect to the Tenant Allowance for
Tenant's Work with respect to the Original Premises, except that there
shall be no Tenant Loan with respect to any such Expansion Space
Tenant's Work.
Tenant shall improve the Expansion Space in accordance with
plans and specifications for improvements to the Expansion Space (the
`Expansion Space Tenant's Plans'), which shall be subject to Landlord's
prior written approval (the work set forth in the Expansion Space
Tenant's Plans being hereinafter referred to as `Expansion Space
Tenant's Work'), which approval shall be upon the same terms and
conditions as are set forth in Section 9.1 of the Lease with respect to
Tenant's Work with respect to the Original Premises.
Landlord and Tenant acknowledge that the Expansion Space
Tenant's Work may include the construction of an internal stairwell
(the `Internal Stairwell'), which Internal Stairwell will connect the
Original Premises and the Expansion Space, and Tenant acknowledges and
agrees that Tenant shall, at its sole cost and expense, remove such
Internal Stairwell and restore all portions of both the twelfth (12th)
and eleventh (11th) floors of the Building which are affected by the
construction or the removal of the Internal Stairwell.
Notwithstanding the foregoing, and provided that any use by
Tenant of the Existing Stairs (as hereinafter defined) shall be in
compliance with all applicable Laws, Tenant may elect to use the
Building's existing stairs (the `Existing Stairs') between the eleventh
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(11th) and twelfth (12th) floors of the Building if and to the extent
permitted by applicable Laws, and may make such alterations to said
Existing Stairs (including, but not limited to, the stairwell and the
access doors) as are required by all applicable Laws, subject to
Landlord's prior written approval thereof pursuant to Article IX of
this Lease.
The provisions of Section 9.1 of the Lease with respect to
Tenant's Work shall also govern (including, but not limited to,
Landlord's approval of subcontractors and contractors) the performance
of Expansion Space Tenant's Work."
12. Simultaneously with Tenant's execution of this First
Amendment, Tenant shall deposit with Landlord an additional security deposit in
the amount of Twenty-Three Thousand Nine Hundred Forty-Three and 79/100 Dollars
($23,943.79), which shall be treated as part of the Security Deposit under
Article XI of the Lease (captioned "Security Deposit") for all purposes.
13. If requested by Landlord at any time during the Term, Tenant
shall promptly execute a declaration in the form attached hereto as Exhibit D-1.
14. The Lease is further amended by inserting therein Exhibits
D-1, J and K attached hereto, which Exhibits D-1, J and K are hereby
incorporated into the Lease by reference.
15. Landlord and Tenant represent and warrant to each other that
the person signing this First Amendment on its behalf has the requisite
authority and power to execute this First Amendment and to thereby bind the
party on whose behalf it is being signed.
16. Landlord and Tenant represent and warrant to each other that,
except as hereinafter provided, neither of them has employed any broker in
procuring or carrying on any negotiations relating to this First Amendment.
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Landlord and Tenant shall indemnify and hold each other harmless from any loss,
claim or damage relating to the breach of the foregoing representation and
warranty by the indemnifying party. Landlord recognizes only The ▇▇▇▇▇ Group, as
Tenant's agent, as broker with respect to this First Amendment and agrees to be
responsible for the payment of a commission to said broker pursuant to a
separate agreement with said broker.
17. Except as expressly amended and modified herein, all terms,
conditions and provisions of the Lease shall remain unmodified and in full force
and effect. In the event of any conflict between the terms and conditions of the
Lease and the terms and conditions of this First Amendment, the terms and
conditions of this First Amendment shall govern and control.
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IN WITNESS WHEREOF, Landlord and Tenant have executed this First
Amendment to Office Lease Agreement as of the day and year first hereinabove
written.
LANDLORD
WITNESS: CHASE TOWER ASSOCIATES, L.L.C., a
Delaware limited liability company
By: CHASE TOWER INVESTORS, L.L.C.,
a Delaware limited liability company
By: JBG/BANNOCKBURN PARTNERS, L.L.C.,
a Delaware limited liability
company, its Managing Member
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ [SEAL]
--------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Member
TENANT
ATTEST: CAPITALSOURCE FINANCE LLC, a
Delaware liability company
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ [SEAL]
----------------------- ---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Vice President and Its: Chief Executive Officer
Deputy General Counsel
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EXHIBIT D-1
DECLARATION BY LANDLORD AND TENANT
AS TO DATE OF DELIVERY AND ACCEPTANCE OF
POSSESSION, EXPANSION SPACE COMMENCEMENT, DATE, ETC.
This Certificate is being provided pursuant to that certain First
Amendment to Office Lease Agreement dated as of _________________, _________
(the "First Amendment"), by and between CHASE TOWER ASSOCIATES, L.L.C., a
Delaware limited liability company ("Landlord") and CAPITALSOURCE FINANCE LLC, a
Delaware limited liability company ("Tenant"). The parties to the Lease desire
to confirm the following:
The Expansion Space Commencement Date is August 15, 2002.
The term of the Extension Period shall expire on August 14, 2012.
The date by which Tenant must give Landlord written notice of Tenant's
election to exercise its renewal option pursuant to Section 3.5(a) of the Lease
is___________________, and the Fifteen Month Threshold Date described in Section
3.5(a) of the Lease is _____________.
Attached to this Certificate is evidence of payment of premiums for all
insurance required pursuant to the Lease.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Certificate
under seal on _____________________, ____________________________________.
LANDLORD
WITNESS: CHASE TOWER ASSOCIATES, L.L.C., a
Delaware limited liability company
By: CHASE TOWER INVESTORS,
L.L.C., a Delaware limited
liability company
By: JBG/BANNOCKBURN PARTNERS,
L.L.C., a Delaware limited
liability company, its
Managing Member
By: _________________________
Name: _______________________
Its: ________________________
D-1-1
TENANT
ATTEST: CAPITALSOURCE FINANCE LLC, a
Delaware liability company
By: ________________________________________ By: _______________ [SEAL]
Name: ______________________________________ Name: _____________________
Its: _______________________________________ Its: ______________________
D-1-2
EXHIBIT J
PLAN SHOWING EXPANSION SPACE
J-1
EXHIBIT J
[GRAPHIC OF FLOOR PLAN]
J-2
EXHIBIT K
SHELL CONDITION
Structure Concrete frame with deck, 80 lbs/ sq. ft.
live load capacity. 20 lbs/sq. ft.
partition load.
Exterior Architectural precast concrete and stone
with low-E insulated windows and
curtainwall.
Column Spacing Varies 30 feet x 30 feet typical
Roof Modified bituminous roofing with a 20-year
warranty.
Floor to Floor 11.5 feet typical
Finished Ceiling Height 9 feet on typical office floors
HVAC System The HVAC system will be floor by floor,
water cooled, self contained, variable air
volume (VAV), air conditioning units. System
allows for independent operation on each
floor. Typical office area HVAC units will
be sized for 300 sq. ft. per ton. The costs
and installation of VAV boxes shall be
Tenant's responsibility.
Building HVAC design criteria shall be:
Heating: Maintain tenant area space temperature at 70
degrees F DB + /-2 degrees, when outdoor
temperature is 10 degrees F DB. Indoor
relative humidity is expected to be
approximately 25% +/- 5%.
Cooling: Maintain tenant area space
temperature at 75 degrees F DB +/ - 2
degrees, indoor relative humidity 50%, when
outdoor temperature is 95 degrees F DB and
78 degrees WB (ASHRAE 1%).
Fresh air will be provided to each
mechanical room via medium pressure ducted
risers and VAV valves at the rate of 20 CFM
per person consistent with current ASHRAE
Guidelines.
A roof mounted cooling tower will provide
condenser water to risers with valved taps
at each floor for future tenant 24 hr./7 day
supplemental units. There will be
approximately 100 tons of capacity dedicated
to all office tenant prospective needs. The
condenser water will be metered for each
tenant.
Electrical System Three (3) electrical service entrances with
utility company transformers located in
vaults on exterior of building will supply
three phase, four-wire 480/277 volt service.
Typical building electrical distribution
system will include plug in bus duct risers
(2 per floor); double section high and low
voltage panels and K-13 rated transformers.
Power available for tenant use will be 6.0
▇▇▇▇▇/sq. ft. low voltage and 3.5 ▇▇▇▇▇/sq.
ft. high voltage for lighting. Power
systems/capacities will be upgradeable for
tenant flexibility.
Space will be allotted within the first
level of the parking garage below grade for
a future tenant generator.
K-1
Life Safety Fire standpipe and base building fire alarm
system will be installed per high rise
building code. Upturned sprinkler heads will
be provided in accordance with NFPA 13 at a
spacing of one head per 225 sq. ft. The base
system will be sized to support a sprinkler
head density of 125 sq. ft. per head. Fire
Alarm system will be a fully supervised,
non-coded, addressable analog initiating,
voice alarm system conforming to ADA and
BOCA high rise codes. An emergency generator
will be provided for elevator recall, fire
pump, stair pressurization, emergency
lighting, fire alarm, and other life safety
systems.
Wet Columns Two wet columns are provided per floor for
use by Tenant. Each wet column consists of:
sanitary, plumbing vent and domestic water
supply.
Window Coverings One inch aluminum, white slat venetian
blinds.
Energy Management An automated, direct digital control energy
management system will be installed under
base building.
Elevators Five traction passenger elevators, 400 feet
per minute, with 4,000 lb. capacity. One of
these is a dual use passenger/service
elevator with a rear door opening to a
service corridor on the 1ST floor.
Security System Perimeter, elevators, and garage.
Rest Rooms One set of women's and men's restrooms will
be fully finished on each floor with base
building.
Typical Floor Lobbies Typical floor lobby finishes and finishes to
corridors connecting stairs will be included
in tenant allowance.
Fiber Optics Telephone and fiber optics sources will be
available via trunk lines located adjacent
to the property. Vertical riser sleeves are
provided at each floor telephone closet to
accommodate future T-1 lines for connection
to the Internet.
Parking Attendant assisted parking totaling 407
spaces or approximately 1.8 spaces per 1000
rentable square feet.
Bike Lockers Bike Racks are provided in the parking
garage for use of the tenants.
K-2
SECOND AMENDMENT TO OFFICE LEASE AGREEMENT
THIS SECOND AMENDMENT TO OFFICE LEASE AGREEMENT
("Second Amendment") is made this 4th day of February, 2003, by and between
CHASE TOWER ASSOCIATES, L.L.C., a Delaware limited liability company
("Landlord"), and CAPITALSOURCE FINANCE LLC, a Delaware limited liability
company ("Tenant").
W I T N E S S E T H:
WHEREAS, by that certain Office Lease Agreement dated December 8, 2000
(the "Original Lease"), Landlord leased to Tenant, and Tenant leased from
Landlord, approximately 16,799 square feet of rentable area on the twelfth
(12th) floor, known as Suite 1200 (the "Original Premises"), in the building
located at ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Chevy Chase, Maryland (the "Building"), upon the
terms and conditions set forth in the Lease;
WHEREAS, by that certain First Amendment to Office Lease Agreement
dated May 10, 2002 (the "First Amendment"), Landlord leased to Tenant, and
Tenant leased from Landlord, an additional 7,463 square feet of rentable area
located on the eleventh (11th) floor of the Building and known as Suite 1130
(the "Expansion Space"), and the parties extended the term of the Original
Lease, upon the terms and conditions more specifically set forth therein;
WHEREAS, the Original Lease and the First Amendment are hereinafter
collectively referred to as the "Lease";
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WHEREAS, Tenant desires to lease from Landlord, and Landlord desires to
lease to Tenant, an additional 19,290 square feet of rentable area located on
the sixth (6th) floor of the Building and known as Suite 600 (the "Second
Expansion Space"), and the parties desire to extend the term of the Lease with
respect to the Original Premises and the Expansion Space upon the terms and
conditions hereinafter set forth;
WHEREAS, Landlord and Tenant desire to amend the Lease to reflect their
understanding and agreement with regard to the lease of the Second Expansion
Space and the extension of the term of the Lease with respect to the Original
Premises and the Expansion Space, and to otherwise amend the Lease, as more
particularly set forth herein.
NOW, THEREFORE, for and in consideration of the mutual promises herein
contained, and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto mutually agree
as follows:
1. Any capitalized terms used in this Second Amendment and not
otherwise defined herein shall have the meanings ascribed to them in the Lease.
2. The Lease is hereby amended by adding thereto a new Article
XXVIII, to read as follows:
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"ARTICLE XXVIII
SECOND EXPANSION SPACE
28.1. Term. Landlord hereby leases unto Tenant, and Tenant hereby
leases from Landlord, approximately 19,290 square feet of rentable area (the
`Second Expansion Space') located on the sixth (6th) floor of the Building,
which Second Expansion Space is hereby agreed to be that certain space which is
shown on Exhibit L attached hereto and made a part hereof and known as Suite
600, for a term (the `Second Expansion Space Term') commencing on February 3,
2003 (the `Second Expansion Space Commencement Date') and continuing through and
including Midnight on May 31, 2013 (the `Second Expansion Space Expiration
Date'), unless earlier terminated pursuant to the provisions of this Lease.
28.2. Second Expansion Space Tenant's Work. Landlord shall deliver the
Second Expansion Space to Tenant in shell condition, as defined in Exhibit M
attached hereto and made a part hereof, following the day on which Landlord
executes that certain Second Amendment to Office Lease Agreement (the `Second
Amendment') after the execution thereof by Tenant. Landlord is under no
obligation to make any other improvements to the Original Premises, the
Expansion Space or the Second Expansion Space. Notwithstanding the foregoing,
Landlord shall make available for the performance of Second Expansion Space
Tenant's Work (as hereinafter defined) an allowance (the `Second Expansion Space
Tenant Allowance') in an amount equal to the product of (a) Thirty-Six and
30/100 Dollars ($36.30) multiplied by (b) the number of square feet of rentable
area comprising the Second Expansion Space. Landlord shall pay the Second
Expansion Space Tenant Allowance to Tenant following Tenant's completion of
Second Expansion Space Tenant's Work (as hereinafter defined) and upon the terms
and conditions set forth in Section 9.1 of this Lease with respect to the Tenant
Allowance for Tenant's Work with respect to the Original Premises, including,
but not limited to, the payment by Landlord of the Second Expansion Space Tenant
Allowance in increments disbursed not more often than once per month, except
that there shall be no Tenant Loan with respect to any such Second Expansion
Space Tenant's Work.
Tenant shall improve the Second Expansion Space in accordance with the
construction drawings for permit dated January 6, 2003 (the `Second Expansion
Space Tenant's Plans') (the work set forth in the `Second Expansion Space
Tenant's Plans being hereinafter referred to as `Second Expansion Space Tenant's
Work').
The provisions of Section 9.1 of this Lease with respect to Tenant's
Work shall also govern (including, but not limited to, Landlord's approval of
subcontractors and contractors) the performance of Second Expansion Space
Tenant's Work.
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Landlord hereby approves Rand Construction as Tenant's general
contractor for the performance of Second Expansion Space Tenant's Work.
28.3. Second Expansion Space Base Rent. In addition to the Base Rent
for the Premises (i.e., the Original Premises and the Expansion Space) payable
pursuant to Section 4.1 hereof, the First Amendment and the Second Amendment,
commencing on June 1, 2003 and continuing thereafter throughout the Second
Expansion Space Term, Tenant covenants and agrees to pay to Landlord Base Rent
for the Second Expansion Space in the following amounts (the `Second Expansion
Space Base Rent'):
Second Second
Expansion Space Expansion Second
Second Base Rent Per Space Expansion Space
Expansion Space Square Foot Base Rent Base Rent
Lease Year Per Annum Per Annum Per Month
--------------- --------------- ----------- ---------------
1 $37.00 $713,730.00 $59,477.50
2 $38.11 $735,141.90 $61,261.83
3 $39.25 $757,132.50 $63,094.38
4 $40.43 $779,894.70 $64,991.23
5 $41.64 $803,235.60 $66,936.30
6 $43.64 $841,815.60 $70,151.30
7 $44.95 $867,085.50 $72,257.13
8 $46.30 $893,127.00 $74,427.25
9 $47.69 $919,940.10 $76,661.68
10 $49.12 $947,524.80 $78,960.40
A `Second Expansion Space Lease Year, shall mean that period of twelve
(12) consecutive calendar months that commences on June 1, 2003, and each
consecutive twelve (12) month period thereafter. The earliest such twelve (12)
month period shall be referred to as `Second Expansion Space Lease Year 1,' and
each of the following Second Expansion Space Lease Years shall be similarly
numbered for identification purposes. The Second Expansion Space Base Rent shall
be payable by Tenant at the same times and in the same manner as set forth in
this Lease with respect to the payment of Base Rent.
28.4. Increased Operating Expenses and Increased Real Estate Taxes with
respect to the Second Expansion Space. In addition to Tenant's proportionate
share of Increased Operating Expenses and Tenant's proportionate share of
Increased Real Estate Taxes payable with respect to the Original Premises and
the Expansion Space pursuant to the terms of this Lease, commencing on June 1,
2004, for each calendar year of the Second Expansion Space Term, Tenant shall
pay to Landlord, in the manner provided in Article V of this Lease, Tenant's
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proportionate share of Increased Operating Expenses for the Second Expansion
Space for the calendar year and Tenant's proportionate share of Increased Real
Estate Taxes for the Second Expansion Space for the calendar year. `Tenant's
proportionate share of Increased Operating Expenses for the Second Expansion
Space for the calendar year' shall equal the product of 8.81% multiplied by the
amount by which the total of Operating Expenses for the calendar year exceeds
the Operating Expenses incurred during calendar year 2003; and `Tenant's
proportionate share of Real Estate Taxes for the Second Expansion Space for the
calendar year' shall equal 8.81% multiplied by the amount by which the total of
Real Estate Taxes for the calendar year exceeds Real Estate Taxes for calendar
year 2003; provided, however, that for the calendar year during which the Second
Expansion Space Term begins and ends, the Operating Expenses and Real Estate
Taxes for the Second Expansion Space shall be prorated based upon the greater of
(i) the number of days during such calendar year that this Lease is in effect or
(ii) the number of days that Tenant actually occupies the Second Expansion Space
or any portion thereof.
28.5. Incorporation of Second Expansion Space Into the Premises. Except
as otherwise herein expressly provided, the Second Expansion Space shall be
deemed a part of the Premises for all purposes of this Lease, such that both
Landlord and Tenant shall have such respective rights and obligations with
respect to the Second Expansion Space as apply to the remainder of the
Premises."
3. The Term of the Lease is hereby extended for a period (such
period being hereinafter referred to as the "Second Extension Period")
commencing on August 14, 2012 (the "Second Extension Period Commencement Date")
and continuing through and including Midnight on the May 31, 2013, unless
earlier terminated pursuant to the provisions of the Lease as modified by the
provisions of this Second Amendment, or pursuant to law.
4. During the Second Extension Period, Tenant covenants and
agrees to pay to Landlord Base Rent with respect to the Premises (i.e., the
Original Premises and the Expansion Space) in the amounts set forth on the
following table:
-5-
Amended Space Base Rent Per
Leasee Square Foot Base Rent Base Rent
Year Per Annum Per Annum Per Month
------------- ------------- ------------- -----------
11 $51.03 $1,238,089.86 $103,174.16
An "Amended Space Lease Year" shall have the same meaning as is set
forth in Paragraph 9 of the First Amendment.
Landlord and Tenant hereby agree and acknowledge that Tenant's
obligations under the Lease with respect to the payment of Additional Rent shall
continue during the Second Extension Period.
5. The definition of "Parking Permits" in Section 1.17 of the
Lease is hereby amended with respect to all periods beginning on and after the
Second Expansion Space Commencement Date by inserting the following language at
the end thereof:
"Notwithstanding the foregoing, commencing on June 1, 2003,
Tenant shall have the right to use seventy-seven (77) Parking Permits
as provided in Article XXIV of this Lease."
6. Tenant's payment of Tenant Improvements Reimbursement Rent
shall continue pursuant to the provisions of Section 5.4 of the Lease and shall
not be affected by the Second Extension Period or this Second Amendment.
7. If requested by Landlord at any time during the Term, Tenant
shall promptly execute a declaration in the form attached hereto as Exhibit D-2.
8. The Lease is further amended by inserting therein Exhibit D-2
and Exhibit L attached hereto, which Exhibit D-2 and Exhibit L are hereby
incorporated into the Lease by reference.
-6-
9. Landlord and Tenant represent and warrant to each other that
the person signing this Second Amendment on its behalf has the requisite
authority and power to execute this Second Amendment and to thereby bind the
party on whose behalf it is being signed.
10. Landlord and Tenant represent and warrant to each other that,
except as hereinafter provided, neither of them has employed any broker in
procuring or carrying on any negotiations relating to this Second Amendment.
Landlord and Tenant shall indemnify and hold each other harmless from any loss,
claim or damage relating to the breach of the foregoing representation and
warranty by the indemnifying party. Landlord recognizes only The ▇▇▇▇▇ Group,
Ltd., as Tenant's agent, and Insignia/ESG, Inc., as agent of Landlord, as
brokers with respect to this Second Amendment and agrees to be responsible for
the payment of a commission to said brokers pursuant to separate agreements with
said brokers.
11. Except as expressly amended and modified herein, all terms,
conditions and provisions of the Lease shall remain unmodified and in full force
and effect. In the event of any conflict between the terms and conditions of the
Lease and the terms and conditions of this Second Amendment, the terms and
conditions of this Second Amendment shall govern and control.
-7-
IN WITNESS WHEREOF, Landlord and Tenant have executed this Second
Amendment to Office Lease Agreement as of the day and year first hereinabove
written.
LANDLORD
WITNESS: CHASE TOWER ASSOCIATES, L.L.C., a
Delaware limited liability company
By: JBG/CHASE TOWER INVESTORS,
L.L.C., a Delaware limited
liability company
By: JBG/BANNOCKBURN PARTNERS,
L.L.C., a Delaware limited
liability company, its Managing
Member
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Managing Member
TENANT
ATTEST: CAPITALSOURCE FINANCE LLC, a
Delaware liability company
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ [SEAL]
--------------------------- -----------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Its: Vice President and Its: Senior Vice President
Deputy General Counsel
-8-
EXHIBIT D-2
DECLARATION BY LANDLORD AND TENANT AS TO DATE OF
DELIVERY AND ACCEPTANCE OF POSSESSION, SECOND
EXPANSION SPACE COMMENCEMENT, DATE, ETC.
This Certificate is being provided pursuant to that certain Second
Amendment to Office Lease Agreement dated as of ______________, ________ (the
"Second Amendment"), by and between CHASE TOWER ASSOCIATES, L.L.C., a Delaware
limited liability company ("Landlord") and CAPITALSOURCE FINANCE LLC, a Delaware
limited liability company ("Tenant"). The parties to the Lease desire to confirm
the following:
The Second Expansion Space Commencement Date is February 3, 2003.
The term of the Lease with respect to the Original Premises, the
Expansion Space and the Second Expansion Space shall expire at Midnight on May
31, 2013.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Certificate
under seal on ____________________ ,_______________.
LANDLORD
WITNESS: CHASE TOWER ASSOCIATES, L.L.C., a
Delaware limited liability company
By: JBG/CHASE TOWER INVESTORS,
L.L.C., a Delaware limited
liability company
By: JBG/BANNOCKBURN PARTNERS,
L.L.C., a Delaware limited
liability company, its
Managing Member
By:_______________________
Name:_____________________
Title:____________________
D-1-1
TENANT
ATTEST: CAPITALSOURCE FINANCE LLC, a
Delaware liability company
By:________________________ By:_________________________[SEAL]
Name:______________________ Name:_______________________
Title:_____________________ Title:______________________
D-1-2
EXHIBIT L
PLAN SHOWING SECOND EXPANSION SPACE
L-1
EXHIBIT M
SECOND EXPANSION SPACE SHELL CONDITION
Structure Concrete frame with deck, 80 lbs/ sq. ft.
live load capacity. 20 lbs/ sq. ft.
partition load.
Exterior Architectural precast concrete and stone
with low-E insulated windows and
curtainwall.
Column Spacing Varies 30 feet x 30 feet typical
Roof Modified bituminous roofing with a 20-year
warranty.
Floor to Floor 11.5 feet typical
Finished 9 feet on typical office floors
Ceiling Height
HVAC System The HVAC system will be floor by floor,
water cooled, self contained, variable air
volume (VAV), air conditioning units. System
allows for independent operation on each
floor. Typical office area HVAC units will
be sized for 300 sq. ft. per ton. The costs
and installation of VAV boxes shall be
Tenant's responsibility.
Building HVAC design criteria shall be:
Heating: Maintain tenant area space temperature at 70
degrees F DB +/-2 degrees, when outdoor
temperature is 10 degrees F DB. Indoor
relative humidity is expected to be
approximately 25% +/- 5%.
Cooling: Maintain tenant area space
temperature at 75 degrees F DB +/ -2
degrees, indoor relative humidity 50%, when
outdoor temperature is 95 degrees F DB and
78 degrees WB (ASHRAE 1%).
Fresh air will be provided to each
mechanical room via medium pressure ducted
risers and VAV valves at the rate of 20 CFM
per person consistent with current ASHRAE
Guidelines.
M-1
A roof mounted cooling tower will provide
condenser water to risers with valved taps
at each floor for future tenant 24 hr./7 day
supplemental units. There will be
approximately 100 tons of capacity dedicated
to all office tenant prospective needs. The
condenser water will be metered for each
tenant.
Electrical System Three (3) electrical service entrances with
utility company transformers located in
vaults on exterior of building will supply
three phase, four-wire 480/277-volt service.
Typical building electrical distribution
system will include plug in bus duct risers
(2 per floor); double section high and low
voltage panels and K-13 rated transformers.
Power available for tenant use will be 6.0
▇▇▇▇▇/sq. ft. low voltage and 3.5 ▇▇▇▇▇/sq.
ft. high voltage for lighting. Power
systems/capacities will be upgradeable for
tenant flexibility.
Space will be allotted within the first
level of the parking garage below grade for
a future tenant generator.
Life Safety Fire standpipe and base building fire alarm
system will be installed per high rise
building code. Upturned sprinkler heads will
be provided in accordance with NFPA 13 at a
spacing of one head per 225 sq. ft. The base
system will be sized to support a sprinkler
head density of 125 sq. ft. per head. Fire
Alarm system will be a fully supervised,
non-coded, addressable analog initiating,
voice alarm system conforming to ADA and
BOCA high rise codes. An emergency generator
will be provided for elevator recall, fire
pump, stair pressurization, emergency
lighting, fire alarm, and other life safety
systems.
Wet Columns Two wet columns are provided per floor for
use by Tenant. Each wet column consists of:
sanitary, plumbing vent and domestic water
supply.
Window Coverings One inch aluminum, white slat venetian
blinds.
Energy Management An automated, direct digital control energy
management system will be installed under
base
M-2
building.
Elevators Five traction passenger elevators, 400 feet
per minute, with 4,000 lb. capacity. One of
these is a dual use passenger/service
elevator with a rear door opening to a
service corridor on the 1st floor.
Security System Perimeter, elevators, and garage.
Rest Rooms One set of women's and men's restrooms will
be fully finished on each floor with base
building.
Typical Typical floor lobby finishes and finishes to
Floor Lobbies corridors connecting stairs will be included
in tenant allowance.
Fiber Optics Telephone and fiber optics sources will be
available via trunk lines located adjacent
to the property. Vertical riser sleeves are
provided at each floor telephone closet to
accommodate future T-1 lines for connection
to the Internet.
Parking Attendant assisted parking totaling 407
spaces or approximately 1.8 spaces per 1000
rentable square feet.
Bike Lockers Bike Racks are provided in the parking
garage for use of the tenants.
M-3