EXHIBIT 10.4
LEASE AGREEMENT
between
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
and
INTERMETRICS, INC.
Table of Contents
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SECTION PAGE
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1. DEFINITIONS.................................................. - 1 -
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2. LEASE TERM................................................... - 3 -
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3. BASIC RENTAL................................................. - 4 -
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4. BASIC RENTAL ESCALATION...................................... - 4 -
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5. SECURITY DEPOSIT............................................. - 4 -
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6. LANDLORD'S OBLIGATIONS....................................... - 5 -
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7. IMPROVEMENT OF THE PREMISES.................................. - 6 -
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8. OPERATING EXPENSES........................................... - 8 -
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9. USE.......................................................... - 9 -
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10. TENANT'S REPAIRS AND ALTERATIONS............................. - 10 -
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11. ASSIGNMENT AND SUBLETTING.................................... - 10 -
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12. INDEMNITY.................................................... - 13 -
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13. SUBORDINATION................................................ - 13 -
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14. RULES AND REGULATIONS........................................ - 14 -
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15. INSPECTION................................................... - 14 -
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16. CONDEMNATION................................................. - 14 -
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17. FIRE OR OTHER CASUALTY...................................... - 15 -
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18. HOLDING OVER................................................. - 15 -
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19. TAXES........................................................ - 16 -
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20. EVENTS OF DEFAULT............................................ - 17 -
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21. REMEDIES..................................................... - 17 -
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22. SURRENDER OF PREMISES........................................ - 19 -
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23. ATTORNEYS' FEES.............................................. - 19 -
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24. INTENTIONALLY OMITTED........................................ - 19 -
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25. MECHANICS' LIENS............................................. - 19 -
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26. WAIVER OF SUBROGATION, INSURANCE............................. - 20 -
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27. INTENTIONALLY OMITTED........................................ - 20 -
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28. BROKERAGE.................................................... - 20 -
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LEASE AGREEMENT
BETWEEN
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
AND
INTERMETRICS, INC.
Table of Contents
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SECTION PAGE
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29. ESTOPPEL CERTIFICATES........................................ - 20 -
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30. NOTICES...................................................... - 21 -
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31. FORCE MAJEURE................................................ - 21 -
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32. SEVERABILITY................................................. - 22 -
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33. AMENDMENTS; WAIVER; BINDING EFFECT........................... - 22 -
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34. QUIET ENJOYMENT.............................................. - 22 -
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35. LIABILITY OF TENANT.......................................... - 22 -
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36. LANDLORD LIABILITY........................................... - 22 -
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37. CERTAIN RIGHTS RESERVED BY LANDLORD.......................... - 22 -
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38. FINANCIAL STATEMENTS......................................... - 23 -
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39. NOTICE TO LENDER............................................. - 23 -
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40. MISCELLANEOUS................................................ - 23 -
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41. ADDITIONAL RENT.............................................. - 24 -
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42. ENTIRE AGREEMENT............................................. - 24 -
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43. LEGAL PROCEEDINGS............................................ - 24 -
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44. LAWS AND REGULATIONS......................................... - 24 -
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45. AMERICANS WITH DISABILITIES ACT ("ADA")...................... - 24 -
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46. ENVIRONMENTAL PROTECTIONS.................................... - 25 -
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47. PARKING...................................................... - 26 -
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48. OPTION TO RENEW.............................................. - 26 -
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49. RIGHT OF FIRST OFFER......................................... - 26 -
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50. TENANT ACCESS................................................ - 27 -
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51. EXHIBITS..................................................... - 27 -
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LEASE AGREEMENT
between
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
and
INTERMETRICS, INC.
DATA SHEET
This Data Sheet is an integral part of this Lease and all of the terms hereof
are incorporated into this Lease in all respects. In addition to the other
provisions which are elsewhere in this Lease, the following, whenever used in
this Lease, shall have the meanings set forth in this Data Sheet.
(a) Premises Suite No. 600 in the Building, generally outlined on the
-------- floor plan attached hereto as Exhibit A (Section 1(1)).
(b) Area of Premises Approximately 26,084 rentable square feet on the sixth
---------------- (6th) floor of the Building (Exhibit A and Section
1(1)).
(c) Building The Concourse, located at ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
-------- ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (Section 1(e)).
(d) Basic Rental $23.75 per rentable square foot per year payable in
------------ equal monthly installments of $51,624.58, subject to
adjustment as herein provided (Sections 1(b) and 3).
(e) Annual Basic $619,495.00 (Section 3).
------------
Rental
------
(f) Annual Basic Three percent (3%) of the escalated Basic Rental
------------
Rental Escalation then in effect (Section 4).
-----------------
(g) Additional Rent See Section 41.
---------------
(h) Lease Term Five years and zero months, commencing on the
---------- Commencement Date (Sections 1(j) and 2).
(i) Commencement Date See Section 1(f).
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(j) Building Monday through Friday, 8:00 a.m. to 6:00 p.m. and
--------
Operation Hours Saturday, 8:00 a.m. to 1:00 p.m.
---------------
(k) Permitted Use Any general business office purposes and for no other
------------- purpose (Sections 1(k) and 9).
(l) Tenant's 7.58% (See Sections 1(p) and 1(q)).
--------
Proportionate
-------------
Share of Building
-----------------
Space
-----
(m) Tenant's 3.5 per 1000 rentable square feet (Section 47).
--------
Proportionate
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Share of Parking
----------------
Spaces
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(n) Brokers Involved Compass Management and Leasing, Inc. and ▇▇▇▇▇▇▇▇▇ and
---------------- ▇▇▇▇ Services Limited Partnership
(o) Security Deposit See Section 1(n) and 5.
----------------
(p) Notices If to Landlord:
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The Equitable Life Assurance Society of the United
States
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
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if to Tenant:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
with a copy to:
The Premises
LEASE AGREEMENT
THIS LEASE AGREEMENT is entered into as of the 23rd day of May 1997,
between THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES (hereinafter
called "Landlord"), whose address for purposes hereof is ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇ and INTERMETRICS, INC, a Delaware corporation
(hereinafter called "Tenant"), whose address for purposes hereof is ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇.
1. DEFINITIONS.
-----------
(a) "Basic Cost": The actual costs incurred by the Landlord in operating
and maintaining the Building and the Land during each calendar year of the Lease
Term for which Landlord has not been reimbursed by insurance proceeds,
condemnation awards or otherwise.
Such costs shall include, by way of example rather than of limitation,
(i) charges or fees for, and taxes on, the furnishing of electricity, water,
sewer service, gas, fuel, or other utility services to the Building and the
Land; (ii) costs of providing elevator, janitorial and trash removal service,
restriping, resurfacing, maintaining and repairing all walkways, roadways and
parking areas on the Land, security costs, and cost of maintaining grounds,
common areas and mechanical systems of the Building and the Land; (iii) all
other costs of maintaining and repairing any or all of the Building or Land;
(iv) all operating and maintenance costs reasonably allocated by Landlord to the
common areas of the Building and the Land in a multi-building development; (v)
charges or fees for any necessary governmental permits and licenses; (vi)
management fees (limited to those which are reasonable and do not materially
exceed those which are customary for buildings of similar age and size in the
Tysons Corner, Virginia submarket), overhead and expenses reasonably related to
management of the Building (including salaries for personnel directly
responsible for management of the Building); (vii) premiums for hazard,
liability, workmen's compensation, or similar insurance upon any or all of the
Building and the Land; (viii) costs arising under service contracts with
independent contractors; and (ix) the cost of any other items which, under
generally accepted accounting principles consistently applied from year to year
with respect to the Building or the Land, constitute operating or maintenance
costs attributable to any or all of the Building or the Land.
Such costs shall not include (i) the expense of principal and interest
payments made by the Landlord pursuant to the provisions of any mortgage or deed
of trust covering the Building or the Land; (ii) any deduction for depreciation
of the Building taken on the landlord's income tax returns; (iii) the cost of
capital improvements made to the Building, other than capital improvements,
modifications or equipment required by federal, state or local ordinance, rule,
regulation or law or determined by Landlord in good faith to result in savings
or reductions in Basic Cost generally, in which case the cost thereof shall be
included in Basic Cost for the calendar year in which the cost shall have been
incurred and in subsequent calendar years, on a straight line basis, such items
will be amortized over an appropriate period and with an appropriate interest
factor selected in good faith by Landlord; (iv) costs of electricity outside
normal business hours sold to tenants of the Building by Landlord or any other
special service to the tenants or service in excess of that furnished to Tenant
whether or not Landlord receives reimbursement from such tenants as an
additional charge; (v) wages, salaries or other compensation or benefits for
employees applicable to the time spent working at or with respect to other
Buildings, other than the Building manager (provided that with respect to each
employee that services the Building and other Buildings, an equitable portion of
such employee's salary shall be included in Basic Cost, as applicable); (vi)
interest or penalties arising by reason of Landlord's failure to timely pay any
Basic Cost; or (vii) costs attributable to compliance with applicable laws or
regulations affecting the Building or the Land, which compliance was required
before the Commencement Date. If Landlord shall have leased any such items of
capital equipment designed to result in savings or reductions in Basic Cost,
then the rental and other costs paid pursuant to such leasing shall be included
in Basic Cost for each calendar year in which they shall have been incurred.
In determining Basic Cost, where less than 95% of the Building's
rentable square footage is occupied during all or any part of a year, those
items of the Basic Cost which vary according to occupancy, such as electricity
and
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janitorial services, shall be increased to that amount which would have been
incurred had the Building been 95% occupied during the entire year.
(b) "Basic Rental": $23.75 per rentable square foot per year payable in
equal monthly installments of $51,624.58, subject to adjustment as herein
provided.
(c) "Base Real Estate Taxes": The Real Estate Taxes payable in the
calendar year 1997.
(d) "Base Year Stop": The Basic Cost incurred during the calendar year
1997 divided by the number of rentable square feet in the Building.
(e) "Building": The office building which has been constructed on land
located at ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, and known as The
Concourse.
(f) "Commencement Date": The earlier of: (i) the date of Substantial
Completion or (ii) the date the Tenant or any one claiming under or through the
Tenant first occupies the Premises or any portion thereof for the Permitted Use
(except as otherwise provided in Section 2(c) below). The anticipated
Commencement Date is September 1, 1997; provided, however, that Landlord agrees
to use reasonable efforts to deliver the Premises in advance of the anticipated
Commencement Date.
(g) "Event of Default": As defined in Section 20 of this
Lease.
(h) "Excess": As defined in Section 8 of this Lease.
(i) "Land": The entire tract of land on which the Building is located,
and subject from time to time, to (i) increase through the acquisition of
adjoining properties, and (ii) reduction through the sale or transfer by
Landlord or the reservations of any such property from the development of which
the Building is a part; provided, however, that neither of the foregoing changes
may materially and adversely affect Tenant's ability to use the Premises for the
Permitted Use.
The term Land shall also include any property that must be maintained by
Landlord due to the existence of any public or private easement.
(j) "Lease Term": The period commencing on the Commencement Date and
continuing for five (5) years and zero (0) months thereafter; provided, however,
if the term of this Lease commences on a date other than the first day of a
calendar month, the Lease Term shall consist of, in addition to the number of
years and months provided above, the remainder of the calendar month during
which this Lease is deemed to have commenced.
(k) "Permitted Use": Any general business office purposes and for no
other purpose.
(l) "Premises": Suite No. 600 in the Building, generally outlined on the
floor plan attached hereto as Exhibit A and consisting of approximately 26,084
rentable square feet. The Premises shall be measured in accordance with the
Modified BOMA Standard Method of Measurement for Office Buildings (1980), and
may be confirmed by Tenant's architect, at Tenant's expense.
(m) "Rules and Regulations": The Landlord's rules and regulations sent
to Tenant in writing from time to time, as amended or substituted for from time
to time, the current form of which is attached hereto as Exhibit C.
(n) "Security Deposit": $154,873.74, subject to reduction as provided in
Section 5.
(0) "Substantial Completion": The date when the work to be performed by
Landlord in the Premises in accordance with this Lease shall have been
substantially completed notwithstanding that certain details of construction,
mechanical adjustment or decoration remain to be performed, the noncompletion of
which would not materially interfere with the Tenant's use of the Premises;
provided, however, that Tenant may legally occupy the Premises in accordance
with all applicable local and state laws.
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For purposes of determining the date of Substantial Completion, there
shall not be considered the duration of any delay which is caused by: (i)
changes in the work to be completed by Landlord in readying the Premises for
Tenant's occupancy, which changes have been requested by Tenant after the
approval by Landlord and Tenant of the Tenant Plans; (ii) delays, not caused by
Landlord, in furnishing materials or procuring labor required by Tenant for
installations or work in the Premises which are not encompassed within Standard
Tenant Work; (iii) any failure by Tenant, to furnish any required plan,
information, approval or consent (including, without limitation, the Tenant
Plans) within the required period of time, or any failure to fully and
completely cooperate with Landlord in the preparation of the Tenant Plans; or
(iv) the performance of any work or activity in the Premises by Tenant or any of
its employees, agents or contractors. The decision of Landlord's and Tenant's
architect shall be finally determinative of the date of Substantial Completion.
(p) "Tenant's Proportionate Share for Basic Cost": 7.58%. Such
percentage is equal to a fraction, the numerator of which equals the number of
rentable square feet within the Premises and the denominator of which equals the
total number of rentable square feet in the Building.
(q) "Tenant's Proportionate Share for Real Estate Taxes": 7.58%. Such
percentage is equal to a fraction, the numerator of which equals the number of
rentable square feet within the Premises and the denominator of which equals the
total number of rentable square feet in the Building.
2. LEASE TERM.
----------
(a) Landlord, in consideration of the rent to be paid and the other
covenants and agreements to be performed by Tenant and upon the terms
hereinafter stated, does hereby lease, demise and let unto Tenant the Premises,
as defined herein and generally outlined on the floor plan attached hereto as
Exhibit A, and Tenant shall have access and use of all common areas and
amenities serving the Building, commencing on the Commencement Date and ending,
without the necessity of notice from either party to the other, such notice
being expressly waived, on the last day of the Lease Term, unless sooner
terminated as herein provided.
(b) If the Landlord shall be unable to tender possession of the Premises
on the anticipated Commencement Date, the Landlord shall not be liable for any
damage caused thereby, nor shall this Lease be void or voidable by Tenant; but
in such event, unless the delay results (i) from failure of Tenant to provide
plans or otherwise perform in accordance with the requirements of the Lease or
(ii) from any delay in Landlord's ability to tender possession of the Premises
caused by Tenant, no rental shall be payable by Tenant prior to actual tender to
Tenant of possession of the Premises and the date of Substantial Completion.
Notwithstanding the foregoing, and provided that any delay in substantially
completing the Premises is not attributable to (i) any Tenant delay detailed in
Section 7, (ii) the requirements of any Special Tenant Work as defined in
Section 7(d), or (iii) the contingencies in the force majeure provisions of
-------------
Section 31, then, if the Premises are not Substantially Complete within one
hundred eighty days (180) of the anticipated Commencement Date, Tenant shall
have the right to terminate this Lease, by delivering written notice to Landlord
not later than one hundred ninety (190) days after the anticipated Commencement
Date.
(c) By accepting possession of the Premises as of the Commencement Date,
Tenant shall be deemed to have accepted the same as suitable for the purpose
herein intended and to have acknowledged that the Premises comply fully with
Landlord's obligations, with the exception of any "punch list" type items in the
Tenant Plans which may not have been completed (or completed properly). Tenant
agrees that its failure to deliver to Landlord such a written "punch list"
within three (3) business days after the Commencement Date shall be conclusive
proof that no such items exist, except items not reasonably apparent upon a
visual inspection of the Premises. Notwithstanding the foregoing, Tenant shall
be permitted to enter the Premises not more than two (2) weeks prior to the
anticipated Commencement Date to install telephone lines, equipment, computer
lines and to move in furniture; provided, however, that (i) Landlord shall
designate the day or days on which Tenant may so enter the Premises, (ii) Tenant
shall not interfere with the buildout of the Premises, (iii) all waiver and
indemnity provisions of this Lease (including, but not limited to, those
contained in Section 12) shall apply to such early entry, and (iv) all property
placed in the Premises by Tenant shall remain there at Tenant's sole risk.
Within three (3) business days after the Commencement Date, Tenant agrees to
- 7 -
execute and return to Landlord a letter prepared by Landlord confirming such
date, a copy of which is attached hereto as Exhibit B.
3. BASIC RENTAL.
-------------
(a) Tenant promises and agrees to pay Landlord the Basic Rental (subject
to adjustment as hereinafter provided) without demand, notice, deduction,
counterclaim, recoupment or set-off, for each month of the entire Lease Term.
The first monthly installment shall be due and payable upon execution of this
Lease. The Basic Rental for each subsequent month shall be paid in advance
beginning on the first day of the calendar month following the expiration of the
first calendar month of the Lease Term and continuing thereafter on or before
the first day of each succeeding calendar month during the term hereof;
provided, however, that Basic Rental for the second calendar month shall be
prorated based on one-three hundred sixtieth (1/360th) of the current annual
Basic Rental for each day of the first partial month, if any, this Lease is in
effect and shall be due and payable as aforesaid.
(b) In the event any installment of the Basic Rental, or any other sums
which became owing by Tenant to Landlord under the provisions hereof, are not
received within five business (5) days after the due date thereof (without in
any way implying Landlord's consent to such late payment), Tenant shall pay, in
addition to such installment of the Basic Rental or such other sums owed, and
not as a penalty, additional rent in the form of a late payment charge equal to
ten percent (10%) of such monthly installment of the Basic Rental or such other
sums owed for each month or part thereof such payment is overdue.
Notwithstanding the foregoing, the foregoing late charges shall not apply to any
sums which may have been advanced by Landlord to or for the benefit of Tenant
pursuant to the provisions of this Lease, it being understood that such sums
shall bear interest from the date of the advance until paid in full, which
Tenant hereby agrees to pay to Landlord, at the rate of fourteen percent (14%)
per annum or the highest rate permitted by law, whichever is less.
Notwithstanding the foregoing, Tenant shall not be required to pay a late fee or
interest for the first late payment or failure to timely reimburse Landlord for
an advance during each Lease year, as long as Landlord receives such payment
within 15 days of the date when due.
4. BASIC RENTAL ESCALATION.
-----------------------
The Basic Rental shall be increased annually, effective on each
anniversary of the first (1st) day of the first full month after the
Commencement Date during the term hereof if the Commencement Date is on a day
other than the first (1st) day of the month, or on the anniversary of the
Commencement Date if the Commencement Date is on the first (1st) day of the
month, by an amount equal to three percent (3%) of the escalated Basic Rental
then in effect, payable as follows:
Year Annualized Rent Monthly Rent
---- --------------- ------------
2 $638,079.85 $53,173.32
3 $657,222.25 $54,768.52
4 $676,938.91 $56,411.58
5 $697,247.08 $58,103.92
5. SECURITY DEPOSIT.
----------------
(a) The Security Deposit, which shall be paid on the earlier to occur of
(i) sixty (60) days after Tenant's final execution of this Lease, or (ii) the
commencement of construction of the improvements as noted in Section 7, shall be
held by Landlord without liability for interest and not in trust or in a
separate account, as security for the performance by Tenant of Tenant's
covenants and obligations under this Lease. The Security Deposit shall not be
considered an advance payment of rental or a measure of Landlord's damages in
case of default by Tenant. Upon the occurrence of any Event of Default by
Tenant, beyond any applicable cure period, Landlord may, from time to time in
its sole discretion, without prejudice to any other remedy, use and apply the
Security Deposit to the extent necessary to make good any arrearages of rent and
any other damage, injury, expense or liability suffered by Landlord by such
Event of Default. Following any such application of the Security Deposit, Tenant
shall pay to Landlord on demand as additional rent the amount so applied in
order to restore the Security Deposit to its original amount. If Tenant is not
then in default hereunder, any remaining balance of the Security Deposit shall
be returned by Landlord to Tenant within sixty (60) days after the termination
of
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this Lease and (X) Tenant shall have surrendered the entire Premises to
Landlord, (Y) Landlord shall have inspected the Premises after such vacation,
and (Z) Tenant shall have complied with all of the terms, conditions and
covenants in the Lease. Notwithstanding the foregoing, Landlord shall refund any
remaining balance of the Security Deposit, once all such Events of Default have
been cured. If Landlord transfers its interest in the Premises during the Lease
Term, Landlord shall assign the Security Deposit to the transferee and
thereafter shall have no further liability for the return of such Security
Deposit.
(b) In lieu of posting a cash Security Deposit, Tenant shall have the
option to deliver to Landlord securities traded on a national market or a
Certificate of Deposit issued by a commercial bank (collectively, a "C.D.") in
an amount equal to the Security Deposit plus any penalties that may be assessed
if the C.D. were prematurely cashed on the first day of the Lease, together with
an Irrevocable Assignment of the C.D., the form for which is subject to
Landlord's reasonable approval, unconditionally signed by the Tenant and any
third-party issuing the C.D. or having possession of the securities. The C.D.
shall extend until sixty (60) days after the expiration of the Lease or, if
requested by Tenant and approved by Landlord, at Landlord's sole option, may be
issued for a shorter term. If the C.D. is issued for a shorter duration, Tenant
shall replace the C.D. not later than thirty (30) days prior to its maturity. If
Tenant fails to replace such C.D. within such thirty-day period, the Landlord
may draw under the C.D. even if no Event of Default has occurred. Provided no
Event of Default occurs under the Lease, all interest accruing on the C.D. shall
be paid directly to Tenant. In the event the C.D. is issued by a commercial
bank, the bank must have a credit rating with respect to certificates of
deposit, short term deposits or commercial paper rated at least P-2 (or
equivalent) by ▇▇▇▇▇'▇ Investor Services, Inc., or rated 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 Services, 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 C.D. that complies in all respects with the requirements of
this Section, and Tenant's failure to obtain such substitute C.D. 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 C.D. in whole or in part, without notice to Tenant. In the event the
issuer of any C.D. 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 C.D. shall be deemed to not meet the requirements
of this Section, and, within ten (10) days thereof, Tenant shall replace such
C.D. 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
C.D. shall be at Tenant's sole risk and shall not relieve Tenant of its
obligations hereunder with respect to the Security Deposit.
(c) Notwithstanding anything to the contrary contained herein, Tenant
shall be entitled to reduce the amount of the Security Deposit to (i)
$106,346.64 after the eighteenth (18th) month of the Lease Term, provided Tenant
has not been late in the payment of any Basic Rental or additional rent for
which Tenant is obligated under this Lease, beyond any applicable grace or cure
period, nor has otherwise been in default under the Lease during the first
eighteen (18) months of the Lease Term, beyond any applicable grace or cure
period; and (ii) $51,624.58 at anytime thereafter during the remainder of the
Lease Term, provided Tenant satisfies all conditions of (c) (i) herein, and
further delivers to Landlord two (2) successive annual, audited financial
statements, showing that Tenant's net worth has exceeded $20,000,000.00 for the
two (2) annual periods covered by such statements.
6. LANDLORD'S OBLIGATIONS.
----------------------
(a) Subject to the limitations hereinafter set forth, Landlord agrees
to furnish to Tenant: (i) facilities to provide water at those points of supply
both within the Premises and those provided for general use of tenants of the
building; (ii) facilities to provide a supply of electrical current reasonably
necessary for general business office use and occupancy of the
- 9 -
Premises and electric lighting and a supply of electrical current to the common
areas of the Building; (iii) heating and refrigerated air conditioning in
season; and (iv) elevator and janitorial service to the Premises, all such
services to be provided in scope, quality and frequency at least equal to those
services being customarily provided by landlords in office buildings of
comparable age and quality in the surrounding area. Heating, ventilation and air
conditioning requirements and standards under this Lease shall be subject,
however, to such regulations as the Department of Energy or other local, state
or federal governmental agency, Board or commission shall adopt from time to
time. In addition, Landlord agrees to maintain the structural portions of the
Building, the roof, foundations, floors and exterior walls and windows of the
Building, the electrical, plumbing, life safety, heating, ventilation and air
conditioning systems of the Building and the Common Areas of the Building, such
as lobbies, elevators, stairs, corridors and restrooms, in reasonably good order
and condition; provided, however, that Tenant shall reimburse Landlord, upon
demand, for all repairs and additional maintenance resulting from damages to
such public or common areas caused by Tenant, or its employees, agents or
invitees, subject to the recovery of any insurance proceeds as provided under
Section 26(a). Landlord reserves the right, exercisable without notice and
without liability to Tenant for damage or injury to property, persons or
business and without effecting an eviction, constructive or actual, or
disturbance of Tenant's use or possession of the Premises, or giving rise to any
claim by Tenant for setoff or abatement of rent, to decorate and to make
repairs, alterations, additions, modifications, changes or improvements, whether
structural or otherwise, in and about the Building, or any part thereof, and for
such purposes to enter upon the Premises (on reasonable advance notice to
Tenant, except in cases of emergency) and, during the continuance of any such
work, to temporarily close doors, entryways, public space and corridors in the
Building and to interrupt or temporarily suspend Building services and
facilities; provided, however, that Landlord shall use commercially reasonable
efforts to avoid disrupting Tenant's use of the Premises.
(b) If Landlord, to any extent, fails to make available any of the
services to be provided by Landlord expressly set forth above or if any
slowdown, stoppage or interruption of, or any change in the quantity, character
or availability of, the services to be provided by Landlord expressly set forth
above occurs, such failure or occurrence shall not render Landlord liable in any
respect for damages to either person, property or business, nor be construed as
an eviction of Tenant or work an abatement of rent, nor relieve Tenant from
fulfillment of any covenant or agreement hereof. Should any equipment or
machinery furnished by Landlord break down or for any cause beyond Landlord's
reasonable control cease to function, properly, Landlord shall use reasonable
diligence to repair same promptly, but Tenant shall have no claim for abatement
of rent or damages on account of any interruptions in service occasioned thereby
or resulting therefrom; provided, however, that if (i) any such services are not
furnished to the Premises for five (5) or more consecutive days after Landlord
receives notice from Tenant, (ii) the Premises are thereby rendered
untenantable, and (iii) the Landlord is not diligently pursuing a cure of such
interruption, then commencing with the sixth (6th) day after Landlord receives
such notice, the Basic Rental shall be abated until the Premises are again
tenantable.
7. IMPROVEMENT OF THE PREMISES.
---------------------------
(a) Landlord and Tenant agree to comply with the following schedule in
buildout of the Premises:
(i) On or before May 16, 1997, Tenant shall prepare and deliver to
Landlord a Space Plan for the Premises. If Landlord, in good faith, reasonably
objects to any aspect of the Space Plan submitted by Tenant, Landlord shall
specify in detail any objection to such Space Plan as submitted to Landlord in a
written notice to Tenant within 5 business days after receipt. Tenant shall
modify such Space Plan to address Landlord's written objections, and submit a
new Space Plan to Landlord for approval, which approval shall not be
unreasonably withheld. Any modifications to the Space Plan made after final
approval by Landlord shall be made at Tenant's expense and, if delay in
occupancy occurs as a result of such modifications, Tenant shall be liable to
Landlord for Basic Rental attributable to each day beyond the date that the
Premises would otherwise have been Substantially Complete, absent such delay.
(ii) Tenant shall prepare and deliver to Landlord detailed floor plan
layouts, together with working drawings and written instructions sufficiently
detailed to enable Landlord to let firm contracts (herein called
- 10 -
"Tenant Plans") with respect to and reflecting the partitions and improvements
in the Premises. Landlord shall cooperate with Tenant in the preparation of the
Tenant Plans, shall promptly respond to Tenant's requests for information and
approvals within five (5) business days after inquiry, and shall use
commercially reasonable efforts to assist Tenant to complete the Tenant Plans as
soon as possible. Tenant agrees to deliver to Landlord, within twenty-eight
(28) days after final approval of the Space Plan by Landlord, an original
executed copy of the Tenant Plans proposed by Tenant; provided, however, if
Landlord, in good faith, reasonably objects to any aspect of the Tenant Plans
submitted by Tenant, Landlord shall specify in detail any objection to such
Tenant Plans as submitted to Landlord in a written notice to Tenant within such
5 business day period, Tenant shall modify such Tenant Plans to address
Landlord's written objections, and submit new Tenant Plans to Landlord for
approval, which approval shall not be unreasonably withheld. If Tenant fails to
timely deliver the Tenant Plans as required herein or makes modifications to the
Tenant Plans after the deadlines provided in this subsection, Tenant shall (1)
pay to Landlord all reasonable expenses incurred by Landlord due to Tenant's
modifications and/or delay in delivering the Tenant Plans; and (2) pay to
Landlord as additional rent a per diem Basic Rental charge for each day beyond
the initially projected Commencement Date that occupancy is delayed due to
Tenant's failure to timely comply with the requirements in this Section.
(iii) Tenant shall provide the services of an architect selected by Tenant
for the preparation of all space planning and construction documents with
respect to the renovation of the Premises. Tenant's architect, who must be fully
licensed in the jurisdiction in which the Building is located and insured in
accordance with industry and Landlord standards, shall be approved by Landlord,
such approval not to be unreasonably withheld. The cost associated with the
preparation of such documents, including any services of an engineering
consultant approved by Landlord, which approval shall not be unreasonably
withheld or delayed, shall be paid by Tenant and reimbursed by Landlord, to the
extent available, from the Tenant Allowance (as defined in subsection (f)
below).
(iv) Tenant understands that Landlord shall engage Technical Property
Services, Inc., the expense for which will be paid by Landlord, to review all
plans, change orders, to perform inspections of the construction of the
Premises, as required in Landlord's reasonable discretion, and to perform any
other service consistent with the supervision and management of the build-out of
the Premises.
(v) Time is of the essence as to all dates provided in this
subsection.
(b) Any changes to any approved Tenant Plans desired by Tenant shall be
submitted in writing and in detail to Landlord and shall be subject to
Landlord's consent, which consent shall not be unreasonably withheld.
(c) Landlord agrees to accept bids from several contractors (one of which
may be provided by Tenant) for the performance of the buildout as the
construction manager or general contractor ("Landlord's Contractor") hereunder.
Landlord shall select Landlord's Contractor, after consultation with Tenant,
although Landlord shall not be obligated to select the lowest bidder from
amongst all of the bidders, if Landlord has reasonable cause to determine the
selection of the lowest bidder would not result in timely and workmanlike
construction of the improvements. Landlord shall, in a good and workmanlike
manner, cause the Premises to be improved and completed in accordance with all
applicable laws and the Tenant Plans by Landlord's Contractor. In the completion
and preparation of the Premises in accordance with the Tenant Plans, Landlord
agrees to perform at its own expense up to the amount of the Tenant Allowance
those items of work set forth on the Space Plan (all work therein collectively
referred to as "Standard Tenant Work"), to the extent required by Tenant Plans.
Landlord reserves the right however, (i) to make substitutions of material of
equivalent grade and quality when and if any specified material shall not be
readily and reasonably available, and (ii) to make changes necessitated by
conditions met in the course of construction, provided that Tenant's approval of
any substantial change shall first be obtained (which approval shall not be
unreasonably withheld or delayed so long as there shall be general conformity
with Tenant Plans).
(d) All work to be performed by Landlord in addition to or in substitution
for Standard Tenant Work is hereinafter referred to as "Special Tenant Work."
All Special Tenant Work shall be furnished, installed and performed by
Landlord's Contractor for and on behalf of Tenant and at Tenant's
- 11 -
sole expense, based on Landlord's out-of-pocket contract or purchase price for
materials, labor and service, including, without limit, any reasonable
contractor's fee for the contractor's overhead and profit and charges for
cutting, patching, cleaning up and removal of waste and debris, plus architects,
and engineers' fees, plus the product obtained by multiplying all of the
foregoing (as reduced by appropriate credits for substituted Standard Tenant
Work) by fifteen percent (15%) for Landlord's expenses and profit in handling
the substitution.
(e) Tenant shall pay Landlord as additional rent for all Special Tenant
Work and work in excess of the Tenant Allowance from time to time during the
progress of the work, within five (5) days after Landlord shall have given
Tenant an invoice or invoices therefor, in amounts representing Landlord's cost
of such work performed (including, for this purpose, material for Special Tenant
Work purchased and delivered to the Building to the date of the invoice), less
the amounts paid by Tenant on account. Any failure by Tenant to pay for all such
work shall constitute failure to pay rent when due and an Event of Default by
Tenant hereunder, giving rise to all remedies available to Landlord under this
Lease and at law or equity for non-payment of rent.
(f) Landlord shall contribute up to $260,840.00 (the "Tenant
Allowance"), calculated at a rate of $10.00 per rentable square foot, towards
the completion of the buildout of the Premises, which Tenant Allowance shall
also be applied against the cost of preparation and review of the Tenant Plans
and the Space Plan, and any costs incurred by Landlord for Building standard
suite signage and directory signage. Any costs in excess of the Tenant Allowance
shall be paid solely by Tenant and shall be considered additional rent under the
terms of the Lease. Of the foregoing Tenant Allowance, Tenant may use up to
$39,126.00, calculated at a rate of $1.50 per rentable square foot, for costs
associated with relocating to the Building, including computer and telephone
cabling costs, furniture purchase, and the direct cost of moving Tenant's office
to the Premises.
(g) Notwithstanding anything herein to the contrary, Landlord shall,
apart from the Tenant Allowance in each instance: (i) at its sole cost and
expense correct any deficiencies in the HVAC systems and electrical service for
the Premises, thereby providing such services at a level substantially
consistent with Class A office buildings of comparable quality and age in the
Tysons Corner, Virginia submarket; provided, however, that all modifications
made to the HVAC or electrical system due to Tenant's alterations to or use of
the Premises shall be the sole responsibility of Tenant; (ii) provide an
additional allowance of $10,000.00 to be used by Tenant to upgrade the elevator
lobby on its floor, such alterations to be subject to Landlord's approval, not
to be unreasonably withheld; (iii) renovate the bathrooms on Tenant's floor,
using Building standard materials, at its sole cost and expense; (iv) at its
sole cost and expense, repair and replace, if necessary, all blinds in the
Premises; and (v) at no cost to Tenant, provide a reasonable degree of visual
privacy to those offices in the Premises facing the atrium, by obstructing the
view of windows facing the atrium on the seventh (7th) floor of the Building.
8. OPERATING EXPENSES.
------------------
(a) During the term of this Lease, Tenant shall pay as additional rent
an amount (per each square foot within the Premises) equal to the excess
("Excess") from time to time by which the per square foot Basic Cost (which
shall be calculated by dividing the Basic Cost by the total rentable square feet
in the Building) exceeds the Base Year Stop. Landlord, at its option, may
collect such additional rent for each calendar year in a lump sum, to be due and
payable within thirty (30) days after Landlord furnishes to Tenant a statement
of actual Basic Cost for the previous year, or, beginning with the first day of
the thirteenth month following the Commencement Date, and on each January 1,
thereafter, Landlord shall also have the option to make a good faith estimate of
the Excess for each upcoming calendar year and may require the monthly payment
of such additional rent equal to one-twelfth (1/12) of such estimate.
(b) By May 1 of each calendar year during Tenant's occupancy and the
calendar year following termination of this Lease, or as soon thereafter as
practical, Landlord shall furnish to Tenant a statement of Landlord's actual
Basic Cost for the previous year. If for any calendar year additional rent
collected for the prior year as a result of Landlord's estimate of Basic Cost is
(i) in excess of the additional rent actually due during such prior year, then
Landlord shall either credit such overpayment towards Tenant's estimated share
of
- 12 -
operating expenses for the next year or refund to Tenant any overpayment, or
(ii) less than the additional rent actually due during such prior year, then
Tenant shall pay to Landlord, on demand, any underpayment with respect to the
prior year.
(c) Each statement furnished by Landlord to Tenant shall be conclusive
and binding upon Tenant unless, within one hundred eighty (180) days after
receipt of such statement (unless the same continues to be contested by Tenant),
Tenant delivers to Landlord a written notice specifying the particular details
for which such statement is claimed to be incorrect Pending the determination
of such dispute, Tenant shall pay without delay the full amount of the
additional rent payable by Tenant in accordance with each such statement that
Tenant is disputing. Without limiting the preceding sentence, Tenant, or a
certified public accountant acting as Tenant's agent, shall have the right,
during Landlord's normal business hours and after reasonable notice, to inspect
the books and records of Landlord applicable to the determination of the
statement of additional rent payable by Tenant for the purpose of verifying in
good faith the information contained in such statement for a period of up to one
year after the receipt of such statement by Tenant. Landlord agrees to maintain
such records at an office located within the Washington, D.C. Metropolitan area.
In the event that Tenant's inspection discloses that Landlord's ▇▇▇▇▇▇▇▇ to
Tenant for increased Operating Expenses exceeded the actual operating expenses
attributable to Tenant, then Landlord shall refund the difference and, in the
event Landlord's ▇▇▇▇▇▇▇▇ exceeded by five percent (5%) the actual operating
expenses attributable to Tenant, Landlord will pay Tenant for the reasonable
expense incurred for an independent third-party in performing such inspection,
but in any event not more than $1,500.00.
(d) Should Tenant require any additional work or service, including but
not limited to heating, ventilation and air conditioning ("HVAC") furnished
outside Landlord's normal operating hours of 8:00 a.m. to 6:00 p.m., Monday
through Friday, 8:00 a.m. to 1:00 p.m., Saturday, excluding holidays, Landlord
may, upon reasonable advance notice by Tenant, furnish such additional services
at a charge of $50.00 per hour, per floor, subject to upward adjustment due to
increases in utilities and wage expenses, it being agreed that the cost to the
Landlord of such additional services shall not be considered or treated as Basic
Cost. Landlord agrees to provide Tenant with written notice of any change to
such hourly charge.
(e) Landlord may, at any time in its sole discretion, require separate
metering for gas, electric power or for any other utility service required by
Tenant if such service is deemed by Landlord to be in excess of Building
standard usage or for any other reason, in which case the cost of such metering
shall be at Tenant's sole cost and expense, due and payable upon demand by
Landlord, and in which event Tenant shall pay for all such utility service in
excess of its normal and customary usage, as metered. For any utility services
that are separately metered as prescribed herein, the amount of said services
which had been included in the calculation of the Base Year Stop or the
calculation of Basic Cost shall be excluded therefrom.
(f) Notwithstanding any expiration or termination of this Lease prior
to the end of the Lease Term, Tenant's obligations to pay any and all additional
rent pursuant to this Lease shall continue and shall cover all periods up to the
expiration or termination date of this Lease.
9. USE.
---
Tenant shall use the Premises only for the Permitted Use. Tenant will
not occupy or use the Premises, or permit any portion of the Premises to be
occupied or used, for any business or purpose other than the Permitted Use or
for any use or purpose which is unlawful, in part or in whole, disreputable in
any manner, or extra hazardous, nor will Tenant permit anything to be done which
shall in any way cause substantial noise, vibrations or fumes, or increase the
rate of insurance on the Building or contents or cause any cancellation of any
insurance policy covering the Building or any portion of its contents. In the
event that, by reason of acts or omissions of Tenant, there shall be any
increase in the rate of insurance on the Building or contents created by
Tenant's acts, omissions or conduct of business, Tenant hereby agrees to pay to
Landlord the amount of such increase within fifteen (15) days after Landlord's
written notice to Tenant of such increase. Tenant will conduct its business and
control its agents, employees and invitees in such a manner as not to create any
nuisance, nor interfere with or disturb the possession of other tenants or
Landlord in the
- 13 -
management of the Building. Tenant shall not install any signs, window or door
lettering or advertising media of any type on or about the Premises or any part
thereof, unless the same have been previously approved in writing by Landlord
and are consistent with, Landlord's Rules and Regulations for the Building.
10. TENANT'S REPAIRS AND ALTERATIONS
--------------------------------
(a) Tenant shall not in any manner deface or injure or make unapproved
modifications of the Premises or the Building and will pay the cost of repairing
any damage or injury done to the Premises or the Building or any part thereof by
Tenant or Tenant's agents, employees or invitees; provided, however, that Tenant
need not obtain Landlord's consent to minor, cosmetic alterations which do not
affect the underlying Building operating systems. Tenant shall throughout the
Lease Term take good care of the Premises and keep them free from waste and
nuisance of any kind. Tenant agrees, at Tenant's sole cost and expense, to keep
the Premises, including, without limitation, all fixtures installed by Tenant
and special store fronts, in good condition and make all necessary non-
structural repairs and replacements except those caused by fire, casualty or
acts of God covered by Landlord's fire insurance policy covering the Building.
Such repairs and replacements shall be in quality equal to the original work and
installation. if Tenant fails to make such repairs within fifteen (15) days
after the occurrence of the damage or injury, Landlord may, at its sole option,
make such repair, and Tenant shall, upon demand therefor, pay Landlord for
Landlord's cost thereof plus fifteen percent (15%) for overhead costs.
(b) Notwithstanding anything in the Lease to the contrary, Tenant will
not make or allow to be made any alterations or physical additions in or to the
Premises, including changes in locks on doors, plumbing, lighting, wiring or
partitions, without the prior written consent of Landlord, such consent not to
be unreasonably withheld or delayed, as long as the alterations or additions do
not affect underlying life safety systems; common Building operating systems or
structural components of the Building. All maintenance, repairs, alterations,
additions or Improvements shall be conducted only by contractors or
subcontractors approved in advance in writing by Landlord, it being understood
that Tenant shall procure and maintain, and shall cause such contractors and
subcontractors engaged by or on behalf of Tenant to procure and maintain,
insurance coverage against such risks, in such amounts and with such companies
as Landlord may require in connection with any such maintenance, repair,
alteration, addition or improvement.
(c) At the end or other termination of this Lease, Tenant shall deliver
up the Premises with all improvements located therein in good repair and
condition, reasonable wear and tear, damage by fire, casualty or taking
excepted, and shall deliver to Landlord all keys to the Premises. All
alterations, additions or improvements (whether temporary or permanent in
character) made in or upon the Premises by Landlord or Tenant shall be
Landlord's property upon termination of this Lease and shall remain on the
Premises without compensation to Tenant (except for Tenant's removable trade
fixtures and personal property, which shall remain the property of Tenant);
provided, however, that if Landlord so elects on or prior to the termination or
upon earlier vacation of the Premises, Tenant shall remove all alterations,
additions, improvements and partitions erected by Landlord or Tenant (i) after
the Commencement Date and (ii) prior to the Commencement Date, if such
alterations, additions or improvements are so designated for removal by Landlord
on the Space Plan, and shall restore the Premises to its original condition by
the date of termination of this Lease or upon earlier vacating of the Premises,
except as provided herein. If Tenant fails to restore the Premises upon
Landlord's request, Landlord shall have the right to perform such restoration
and Tenant shall be liable for all costs and expenses incurred by Landlord
therefor.
11. ASSIGNMENT AND SUBLETTING.
-------------------------
(a) Landlord's Prior Consent Reguired. Neither Tenant nor Tenant's
---------------------------------
representatives, successors and assigns nor any subtenant or assignee will
assign, transfer, mortgage or otherwise encumber this Lease or sublet or rent
(or permit the occupancy or use of) the Premises, or any part thereof, without
obtaining the prior written consent of Landlord. Landlord's consent to assign
this Lease or sublet the Premises will not be unreasonably withheld, provided
Tenant satisfies all applicable provisions of subsection (b) below, nor shall
any assignment or transfer of this Lease or the right of occupancy hereunder be
effectuated by operation of law or otherwise without the prior written consent
of
- 14 -
Landlord. Any reasonable expenses incurred by Landlord with respect to the
review and consent or denial of consent of the foregoing (not to exceed $1,000
per request) shall be paid by Tenant to Landlord as additional rent, and shall
be due and payable with the monthly installment of rent when billed.
(b) Qualification of Assignee or Subtenant. Subject to the provisions of
--------------------------------------
Section 11(c) hereof, Landlord shall not unreasonably withhold its consent
hereunder to any assignment or sublease by Tenant, provided that (x) in the
event of a sublease Tenant shall satisfy each of the following conditions prior
to any such sublease becoming effective; and (y) in the event of an assignment,
Tenant shall satisfy the conditions of subsections (i), (ii), (iv), (v) and (vi)
prior to any such assignment becoming effective:
(i) Tenant must first notify Landlord, in writing, of any proposed
assignment or sublease, at least twenty (20) days prior to the effective date of
such proposed assignment or sublease. The notice to Landlord must include a copy
of the proposed assignment or sublease, a copy of the proposed assignee's or
subtenant's financial statement for its most recent fiscal year, certified by a
public accountant or an executive officer of the proposed assignee or subtenant,
and such other related financial information as Landlord may require in its
reasonable discretion.
(ii) The assignee or subtenant must either have a credit rating
satisfactory to Landlord (in Landlord's reasonable judgment) or be able to
demonstrate to Landlord's reasonable satisfaction that it is capable of
servicing all of Tenant's financial obligations under this Lease for which such
assignee or subtenant becomes liable.
(iii) The sublease must (A) be expressly subject and subordinate to this
Lease, (B) require that any subtenant comply with and abide by all of the terms
of the Lease, and (C) provide that any termination of this Lease shall
extinguish the sublease as well.
(iv) The assignee or subtenant may not propose to change the use of the
premises to, a purpose other than as stated in Section 9 hereof, may not be a
place of public accommodation as defined under the Americans with Disabilities
Act, nor conduct its business in a manner which, in Landlord's reasonable
judgment, is not appropriate for comparable office buildings in the metropolitan
Washington, D.C. area.
(v) The assignee or subtenant may not be a tenant, subtenant, or other
occupant of any part of the Building, unless Landlord is unable to offer such
occupant comparable space elsewhere in the Building.
(vi) The Tenant may not be in default under this Lease.
(vii) The sublease shall contain the following clause:
"Underlying Lease Agreement. This Sublease and Subtenant's rights under
------------------------------
this Sublease shall at all times be subject and subordinate to the
underlying Lease identified in Paragraph hereof, and Subtenant shall
---
perform all non-monetary obligations of Tenant under said Lease, with
respect to the Sublease Premises. Subtenant acknowledges that any
termination of the underlying Lease shall extinguish this Sublease.
Landlord's consent to this Sublease shall not make Landlord a party to this
Sublease, shall not create any privity of contract between Landlord and
Subtenant or other contractual 1iability or duty on the part of the
Landlord to the Subtenant, shall not constitute its consent or waiver of
consent to any subsequent sublease or sub-sublease, and shall not in any
manner increase, decrease or otherwise affect the rights and obligations of
Landlord and Tenant under the underlying Lease, in respect of the Sublease
Premises. Subtenant shall have no right to assign this Sublease or further
sublet the Premises without the prior written consent of Landlord. Any term
of this Sublease that in any way conflicts with or alters the provisions of
the underlying Lease shall be of no effect as to Landlord and Landlord
shall not assume any obligations as landlord under the Sublease and Tenant
shall not acquire any rights under the Sublease directly assertable against
Landlord under the underlying Lease. Tenant hereby collaterally, assigns to
Landlord this Sublease and any and all payments due to Tenant from
Subtenant as additional security for Tenant's performance
- 15 -
of all of its covenants and obligations under the underlying Lease, and
authorizes Landlord, upon an Event of Default by Tenant, to collect the
same directly from Subtenant and otherwise administer the provisions of
this Sublease, at the option of Landlord. Subtenant hereby consents to such
collateral assignment of this Sublease to Landlord and agrees to observe
its obligations created hereby."
(C) Landlord's Right of First Refusal. Landlord shall have
----------------------------------
the right, within twenty (20) days after receipt of the notice from Tenant,
required under Section 11(b)(i) above, to elect: (i) if Tenant proposes to
assign the Lease or sublease all or substantially all of the Premises, to
terminate this Lease in its entirety, in which event the Lease shall terminate
upon the effective date of the proposed assignment or sublease, and Tenant shall
vacate the Premises as of such effective date in accordance with the applicable
provisions of this Lease; (ii) if Tenant intends to sublet a portion of the
Premises, to terminate this Lease only with respect to such portion of the
Premises, in which case Tenant shall vacate such portion as provided in
subsection (i) above; or (iii) to require Tenant to pay Landlord, within ten
(10) days of receipt, one-half (1/2) of the amount of rent payable under such
assignment or sublease in excess of the amount of rent payable by Tenant
hereunder with respect to the Premises or, in the event of a sublease, that
portion of the Premises sublet, offset by any direct expenses incurred by Tenant
actually incurred in assigning the Lease or subleasing such portion of the
Premises, and, additionally, offset by the cost of any service which Tenant
provides subtenant or assignee that Tenant does not receive from Landlord, costs
Tenant incurs under the Lease (such as payments due under Section 8 above) which
are not passed through to subtenant or assignee, and the value of the sale or
rental of assets which are not provided by Landlord (such as Tenant's furniture)
to subtenant or assignee (all amortized in equal monthly payments over the
remaining term of the Lease, if assigned, or, if applicable, over the initial
term of such sublease). Upon exercise by Landlord of either of the options set
forth in subsection (i) or (ii) above, Tenant shall surrender the Premises or
such portion of the Premises, as the case may be, to Landlord, and thereafter
the rent to be paid by Tenant pursuant to Section 3 above shall be that portion
of the total rent which the amount of square foot area remaining in the
possession of Tenant bears to the total square foot area of the Premises. In the
event that Landlord does not exercise its right to terminate this Lease, or any
applicable portion thereof, within said twenty (20) day period, Tenant shall
have the right, subject to the provisions of subsection (iii) above, to assign
the Lease or sublet the Premises or a portion thereof after first obtaining the
written consent of Landlord as provided in Section 11(a) above. Upon exercise by
Landlord of the option set forth in subsection (iii) above, Tenant covenants and
agrees to provide Landlord with semi-annual statements, prepared and verified by
a certified public accountant or executive officer of Tenant, stating the amount
of rent or other consideration received by Tenant from its assignee or
subtenant(s) during such semi-annual period. If such statement shows Tenant
failed to make the full payment to Landlord required by subsection (iii) above,
a late charge equal to ten percent (10%) of the amount due shall be paid by
Tenant to Landlord as additional rent, and shall be due and payable by the
assignee or Tenant with the monthly installment of rent next becoming due.
Notwithstanding anything to the contrary contained herein, Landlord shall not
have the right to recapture 6,000 to 8,000 rentable square feet of the Premises
which Tenant intends to sublease immediately upon commencement of this Lease,
all other conditions of this Section to be satisfied prior to any such sublease
becoming effective.
(d) No Waiver or Release. The consent by Landlord to any assignment
--------------------
or subletting shall not be construed as a waiver or release of Tenant from the
terms of any covenant or obligation under this Lease, nor shall the collection
or acceptance of rent from any such assignee, subtenant or occupant constitute a
waiver or release of Tenant of any covenant or obligation contained in this
Lease, nor shall any such assignment or subletting be construed to relieve
Tenant from obtaining the consent in writing of Landlord to any further
assignment or subletting. Tenant hereby assigns to Landlord the rent due from
any subtenant of Tenant and hereby authorizes each such subtenant to pay said
rent directly to Landlord, at Landlord's option, in the event of any default by
Tenant under the terms of this Lease, which continues beyond any applicable
grace or cure period.
(e) Subsidiary or Affiliate. Provided Tenant delivers notice to
--------------------------
Landlord not less than fifteen (15) days prior to any such assignment or
sublease, and provided any such assignee or subtenant satisfies the conditions
of
- 16 -
subsections 11(b)(iii) and 11(b)(iv) above, Tenant may assign this Lease, or
sublease all or part of the Premises, without the consent of Landlord, to:
(i) any bona fide entity that controls, is controlled
by, or is under common control with, Tenant; or
(ii) any bona fide entity in which or with which Tenant, its
successors or assigns, is merged or consolidated, so long as (A) the liabilities
of the entities participating in such merger or consolidation are assumed by the
entity surviving such merger or created by such consolidation and (B) the
successor can demonstrate to Landlord's reasonable satisfaction by balance
sheets and other financial documentation submitted to Landlord that it is no
less capable than Tenant of servicing all of Tenant's financial obligations
under this Lease.
12. INDEMNITY.
---------
(a) Landlord shall not be liable for, and Tenant shall indemnify and
save harmless Landlord, ground lessor, if any, and Landlord's managing agent, if
any, from and against and from all fines, damages, suits, claims, demands,
losses and actions (including reasonable attorneys' fees) for any injury to
person (including death) or damage to or loss of property on or about the
Premises caused by Tenant, its employees, contractors, subtenants, invitees or
by any other person entering the Premises or the Building under the express or
implied invitation of Tenant, or arising out of Tenant's use of the Premises.
Landlord shall not be liable or responsible for any loss or damage to any
property or death or injury to any person occasioned by theft, fire, act of God,
public enemy, criminal conduct of third parties, injunction, riot, strike,
insurrection, war, court order, requisition or other governmental body or
authority, by other tenants of the Building or any other matter beyond the
reasonable control of Landlord, or for any injury or damage or inconvenience
which may arise through repair or alteration of any part of the Building, or
failure to make repairs, or from any cause whatever except Landlord's negligence
or willful misconduct.
(b) Landlord hereby agrees to make no claim against Tenant, and will
indemnify and save Tenant, its agents, employees and invitees harmless from any
claim which shall be made against Tenant by any agent, employee, licensee or
invitee of Landlord or by others claiming the right to be on or about the common
areas for any injury, loss or damage to person or property occurring upon the
common areas, unless due to Tenant's negligence or willful misconduct.
13. SUBORDINATION.
--------------
This Lease and all rights of Tenant hereunder shall be and
are subject and subordinate at all times to any deeds of trust, mortgages,
installment sale agreements and other instruments or encumbrances, as well as to
any ground leases or primary leases, that now or hereafter cover all or any part
of the Building, the Land or an interest of Landlord therein, and to any and all
advances made on the security thereof, and to any and all increases, renewals,
modifications, consolidations, replacements and extensions of any of such deeds
of trust, mortgages, installment sale agreements, instruments, encumbrances or
leases, as well as any substitutions therefor, all automatically and without the
necessity of any further action on the part of Tenant to effectuate such
subordination. Tenant shall, however, upon demand at any time or times execute,
acknowledge and deliver to Landlord any and all instruments and certificates
that in the reasonable judgment of Landlord may be necessary or proper to
confirm or evidence such subordination. Notwithstanding the foregoing, if any
mortgagee, trust beneficiary or ground lessor shall elect to have this Lease
treated as if it became effective and Tenant had taken possession prior to the
lien of its mortgage or deed of trust or prior to its ground lease, and shall
give notice thereof to Tenant, this Lease shall be deemed to have become
effective and Tenant's right to possession shall be considered prior to such
mortgage, deed of trust, or prior to its ground lease whether this Lease is
dated prior or subsequent to the date of said mortgage, deed of trust or ground
lease or the date of recording thereof. In the event any mortgage or deed of
trust to which this Lease is subordinate is foreclosed or a deed in lieu of
foreclosure is given to the mortgagee or beneficiary, Tenant shall attorn to the
purchaser at the foreclosure sale or to the grantee under the deed in lieu of
foreclosure; in the event any ground lease to which this Lease is subordinate is
terminated, Tenant shall attorn to the ground lessor. Tenant shall at any time
execute, acknowledge and deliver to Landlord's mortgagee (including the
beneficiary under any deed of
- 17 -
trust) or other holder any and all instruments and certificates that in the
judgment of Landlord's mortgagee may be necessary or proper to confirm or
evidence such attornment, within ten (10) days after such instruments and
certificates have been delivered to Tenant. Notwithstanding the foregoing,
Landlord shall make reasonable efforts to obtain a non-disturbance agreement
from all mortgagees and beneficiaries of any deeds of trust now or hereafter
placed on the Building, provided that the same can be obtained at no cost,
expense, or liability to Landlord (other than Landlord's reasonable legal fees).
Landlord shall, however, have no liability to Tenant as a result of its failure
to obtain any non-disturbance agreement, provided that Landlord endeavored in
good faith to obtain such an agreement.
14. RULES AND REGULATIONS.
---------------------
Tenant and Tenant's agents, contractors, employees and invitees will
comply fully with all requirements of the Rules and Regulations of the Building
and related facilities, as specified in the Rules and Regulations now or
hereafter sent by Landlord to Tenant. Landlord shall at all times have the right
to change such rules and regulations to promulgate other Rules and Regulations
in such manner as Landlord may deem advisable, in its reasonable discretion, for
safety, care or cleanliness of the Building and related facilities or the
Premises, and for preservation of good order therein, all of which Rules and
Regulations, changes and amendments will be forwarded to Tenant in writing and
shall be carried out and observed by Tenant. Tenant shall be responsible for
compliance therewith by the agents, contractors, employees and invitees of
Tenant. Landlord shall use reasonable efforts to enforce all such Rules and
Regulations, including any exceptions thereto, uniformly and in a manner which
does not discriminate against Tenant, although it is understood that Landlord
may grant exceptions to such Rules and Regulations in circumstances in which it
reasonably determines such exceptions are warranted.
15. INSPECTION.
----------
Landlord or its officers, agents and representatives, and
any ground lessor or mortgagee thereof, shall have the right to enter into and
upon any and all parts of the Premises at all reasonable hours upon reasonable
advance notice (or, in any emergency or for the purpose of performing routine
maintenance, at any hour and without advance notice) to (a) inspect the Premises
at any time (including the right to perform periodic environmental studies,
audits and reports), (b) clean or make repairs or alterations or additions as
Landlord may deem necessary (but without any obligation to do so, except as
expressly provided for herein, and, in such event, Landlord shall use
commercially reasonable efforts to avoid disrupting Tenant's use of the
Premises), or (c) show the Premises to prospective tenants, purchasers or
lenders; and Tenant shall not be entitled to any abatement or reduction of rent
by reason thereof, nor shall such be deemed to be an actual or constructive
eviction.
16. CONDEMNATION.
------------
If the whole or, as determined by Landlord in its sole
discretion, any substantial part of the Land or the Building should be taken for
any public or quasi-public use under governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof and the taking would prevent or materially interfere with the use of the
Premises for the purpose for which they are being used, as determined by
Landlord, this Lease shall terminate and the rent shall be abated during the
unexpired portion of this Lease, effective when the physical taking of said Land
or the Building shall occur. If part of the Land or Building shall be taken for
any public or quasi-public use under any governmental law, ordinance or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof, and this Lease is not terminated as provided in the sentence above,
this Lease shall not terminate but the rent payable hereunder during the
unexpired portion of this Lease shall be reduced on a pro-rata basis based on
the square footage remaining in the Premises, or on another equitable basis if
the taking affects only the Land or portions of the Building other than the
Premises. In the event of any such taking or private purchase in lieu thereof,
Landlord and Tenant shall each be entitled to all remedies provided by law;
provided, however, that any award paid to Tenant shall not detract from any
award which Landlord is entitled to receive; and if Landlord's award is reduced
to any extent as a result of any award to Tenant, then Tenant shall assign and
pay over to Landlord the amount by which Landlord's award was so reduced.
- 18 -
17. FIRE OR OTHER CASUALTY.
-----------------------
In the event of damage to or destruction of the Premises or
the Building, or the entrances and other common facilities necessary to provide
normal access to the Premises, caused by fire or other casualty, Tenant shall
provide notice thereof to Landlord as soon as reasonably possible, and Landlord
shall make repairs and restorations as hereafter expressly provided, unless this
Lease shall be terminated by Landlord or unless any mortgagee which is entitled
to receive casualty insurance proceeds fails to make available to Landlord a
sufficient amount of such proceeds to cover the cost of such repairs and
restoration.
If (i) the damage is of such nature or extent, in the
judgment of Landlord's architect, that more than two hundred ten (210)
consecutive days, after commencement of the work, would be required (with normal
work crews and hours) to repair and restore the part of the Premises or Building
which has been damaged, (ii) a substantial portion of the Premises or the
Building is so damaged that, in Landlord's sole judgment, it is uneconomic to
restore or repair the Premises or the Building, as the case may be, or (iii) any
mortgagee which is entitled to receive casualty insurance proceeds fails to make
available to Landlord a sufficient amount of such proceeds to cover the cost of
such repairs and restoration, Landlord shall so advise Tenant promptly; and
Landlord or Tenant, for a period of ten (10) days thereafter, shall have the
right to terminate this Lease by written notice to the other, as of the date
specified in such notice, which termination date shall be no later than thirty
(30) days after the date of such notice. In the event of such fire or other
casualty, if this Lease is not terminated pursuant to the terms of this Section
17, and if (y) sufficient casualty insurance proceeds are available for use for
such restoration or repair, and (z) this Lease is then in full force and effect,
Landlord shall proceed promptly and diligently to restore the Building, Land and
Premises to its substantially similar condition prior to the occurrence of the
damage, provided that Landlord shall not be obligated to repair or restore any
alterations, additions or fixtures which Tenant or any other tenant may have
installed unless Tenant, in a manner satisfactory to Landlord, assures payment
in full of all costs which may be incurred by Landlord in connection therewith.
Landlord shall not insure any improvements or alterations to the Premises in
excess of Standard Tenant Work, or any fixtures, equipment or other property of
Tenant. Tenant shall, at its sole expense, insure the value of its leasehold
improvements, fixtures, equipment or other property located in the Premises, for
the purpose of providing funds to Landlord to repair and restore the Premises
to its substantially similar condition prior to occurrence of the damage. If
there be any such alteration, fixtures or additions and Tenant does not assure
or agree to assure payment of the cost or restoration or repair as aforesaid,
Landlord shall have the right to determine the manner in which the Premises
shall be restored so as to be substantially the same as the Premises existed
prior to the damage occurring, as if such alterations, additions or fixtures had
not been made or installed. The validity and effect of this Lease shall not be
impaired in any way by, and Landlord shall have no liability as a result of, the
failure of Landlord to complete repairs and restoration of the Premises or of
the Building within two hundred ten (210) consecutive days after commencement of
work, even if Landlord had in good faith notified Tenant that it estimated that
the repair and restoration would be completed within such period, provided that
Landlord proceeds diligently with such repair and restoration.
In the case of damage to the Premises not caused by the willful
misconduct of the Tenant or any of its agents, employees or invitees, and which
is of a nature or extent that Tenant's continued occupancy is substantially
impaired, the rent otherwise payable by Tenant hereunder shall be equitably
abated or adjusted for the duration of such impairment as determined by
Landlord. In no event, however, shall any damages be payable by Landlord to
Tenant in respect of business interruption resulting from any fire or other
casualty on the Premises or Building. Tenant shall be responsible to insure
and/or repair all of Tenant's leasehold improvements and all equipment, fixtures
and personal property located in the Premises.
18. HOLDING OVER.
-------------
Tenant shall, at the termination of this Lease by lapse of time or
otherwise, yield up immediate possession to Landlord. If Tenant holds over after
the expiration or termination of this Lease, all of the other terms and
provisions of this Lease shall be applicable during such period, except that
Tenant shall pay Landlord from time to time upon demand, as partial damages for
- 19 -
the period of any holdover, an amount equal to two hundred percent (200%) of
the Basic Rental in effect on the termination date, computed on a daily basis
for each day of the holdover period. No holding over by Tenant shall operate to
extend this Lease except as otherwise expressly provided in this Lease. The
foregoing notwithstanding, Landlord, in addition to accepting the daily damages
during the period of such holding over, shall be entitled to pursue all remedies
at law or equity, including, without limitation, rights to ejectment and
damages. Notwithstanding the foregoing, provided that Tenant has delivered to
Landlord written notice of its intent to holdover at least six (6) months prior
to the end of the Lease Term, the foregoing damages shall be one hundred fifty
percent (150%) of the Basic Rental in effect on the termination date for the
first two (2) months of such holdover, and two hundred percent (200%)
thereafter.
19. TAXES.
-----
(a) During each calendar year or portion thereof included in the
Lease Term, and any renewal thereof, Tenant shall pay to Landlord as additional
rent, Tenant's Proportionate Share of Real Estate Taxes which exceed the Base
Real Estate Taxes. Real Estate Taxes shall mean (i) all real estate taxes,
including general and special assessments, if any, which are imposed upon
Landlord or assessed against the Building and/or the Land during any calendar
year, and (ii) any other present or future taxes or governmental charges that
are imposed upon Landlord or assessed against the Building and/or the Land
during any calendar year which are in the nature of, in addition to or in
substitution for real estate taxes, including, without limitation, any license
fees, tax measured by or imposed upon rents, or other tax or charge upon
Landlord's business of leasing the Building, but shall not include any federal,
state or local income tax. Real Estate Taxes shall also include all reasonable
expenses incurred by Landlord in obtaining or attempting to obtain a reduction
of Real Estate Taxes, including but not limited to, legal fees. In the event
that Landlord obtains a reduction in a prior year's Real Estate Taxes, and
provided that Tenant has paid its Proportionate Share of Real Estate Taxes for
such year, Tenant shall be entitled to a credit for its pro rata share of any
such reduction.
(b) Commencing with the 1998 calendar year, and in each calendar
year thereafter during the Lease Term, Landlord may deliver to Tenant a
statement of Landlord's reasonable estimate of any increase in the annual Real
Estate Taxes for the then current calendar year over the Base Real Estate Taxes
and Tenant's percentage thereof, such statement to be delivered on or before
April 1st of said calendar year, or as soon thereafter as possible. Within
thirty (30) days after delivery of such statement (including any statement
delivered after the expiration or termination of this Lease), Tenant shall pay
to Landlord, as additional rent, Tenant's aforesaid percentage share of such
estimated increase in the annual Real Estate Taxes, except that Tenant's first
payment shall include the (1/12th) monthly shares for the months from January
1st through the month in which Landlord submitted the estimate of the increase
in the annual Real Estate Taxes for the then current calendar year.
(c) Commencing with the 1999 calendar year, Landlord shall deliver
to Tenant a statement showing the determination of the increase in the annual
Real Estate Taxes for the preceding calendar year and Tenant's total percentage
thereof, such statement to be delivered on or before April 1st of the then
current calendar year, or as soon thereafter as reasonably practicable. If such
statement shows that Tenant's payments, if any, of the estimated monthly
increase in the annual Real Estate Taxes for said preceding calendar year
exceeded Tenant's actual increases for said year, then Tenant may deduct such
overpayment from its next payment or payments of monthly rent. If such statement
shows that Tenant's percentage share of Landlord's actual increase in the annual
Real Estate Taxes exceeded Tenant's payments, if any, of the estimated monthly
increase in the annual Real Estate Taxes for said preceding calendar year, then
Tenant shall pay the total amount due to Landlord, which amount shall constitute
additional rent hereunder due and payable with the first monthly installment of
rent due after delivery of said statement.
(d) In the event that the expiration date or other date of
termination of this Lease is not December 31st, the increase to be paid by
Tenant for the calendar year in which the expiration date occurs shall be
determined by multiplying the amount of Tenant's share thereof for the full
calendar year by a fraction, with the number of days during such calendar year
prior to the expiration date as the numerator, and with 365 as the denominator.
The termination of this Lease shall not affect the obligations of Landlord and
Tenant pursuant to this Section to be performed after such termination.
- 20 -
(e) Tenant shall be liable for all taxes levied or assessed against
personal property, furniture or fixtures placed by Tenant in the Premises, and
if any such taxes for which Tenant is liable are in any way levied or assessed
against Landlord, Tenant shall pay the Landlord upon demand that part of such
taxes for which Tenant is primarily liable hereunder.
20. EVENTS OF DEFAULT.
----------------
The occurrence of any of the following events shall be deemed to be
an event of default ("Event of Default") by Tenant under this Lease:
(a) Tenant shall fail to pay when due any rental or other sums
payable by Tenant hereunder (or under any other lease now or hereafter executed
by Tenant in connection with space in the Building), and same is not cured
within five (5) days after Landlord's written notice thereof to Tenant.
(b) Tenant shall fail to comply with or observe Section 46 of this
Lease (or a comparable section of any other lease now or hereafter executed by
Tenant in connection with space in the Building). Notwithstanding the foregoing,
if (i) the default is of such a nature that it does not present a risk to the
health or safety of other tenants and/or invitees of the Building and/or the
Premises; (ii) Tenant has commenced curing the default within five (5) days
after notice thereof from Landlord; and (iii) Tenant is continuing to diligently
pursue the cure of said default, then Tenant shall have an additional ten (10)
days in which to complete the cure of the default.
(c) Tenant shall fail to comply with or observe any other provision
of this Lease (or any other lease now or hereafter executed by Tenant in
connection with space in the Building), and same is not cured within fifteen
(15) days after Landlord's written notice thereof to Tenant. Notwithstanding the
foregoing, if (i) the default is of such a nature that fifteen (15) days is an
unreasonably short period of time in which to cure the default; (ii) Tenant has
commenced curing the default within the fifteen (15) day period; and (iii)
Tenant is continuing to diligently pursue a cure of such default, then Tenant
shall have an additional fifteen (15) days in which to complete the cure of said
default.
(d) Tenant abandons the Premises and fails to pay any rental or
other sums for which Tenant is obligated hereunder.
(e) Tenant or any partner or guarantor of Tenant, as the case may
be, shall apply for or consent to the appointment of a receiver, trustee or
liquidator of itself or himself or any of its or his property, admit in writing
its or his inability to pay its or his debts as they mature, make a general
assignment for the benefit of creditors, be adjudicated a bankrupt, insolvent or
file a voluntary petition in bankruptcy or a petition or an answer seeking
reorganization or an arrangement with creditors or to take advantage of any
bankruptcy, reorganization, insolvency, readjustment of debt, dissolution or
liquidation law or statute, or an answer admitting the material allegations of a
petition filed against it or him in any proceeding under any such law, or if
action shall be taken by Tenant or any partner or guarantor of Tenant for the
purposes of effecting any of the foregoing.
(f) Any court of competent jurisdiction shall enter an order,
judgment or decree approving a petition seeking reorganization of Tenant or all
or a substantial part of the assets of Tenant or any partner or guarantor of
Tenant, or appointing a receiver, sequestrator, trustee or liquidator of Tenant
or any partner or guarantor of Tenant or any of its or his property, and such
order, judgment or decree shall continue unstayed and in effect for any period
of at least thirty (30) days.
21. REMEDIES.
---------
Upon the occurrence of any Event of Default specified in this Lease,
Landlord shall have the option to pursue any one or more of the following
remedies without any notice or demand whatsoever:
(a) Collect or bring an action for such rent as may be in arrears,
and request entry of judgment therefor as provided for in case of rent in
arrears, or file a proof of claim in any bankruptcy or insolvency proceeding for
such rent, or institute any other proceedings, whether similar or dissimilar to
the foregoing, to enforce payment thereof.
- 21 -
(b) Declare due and payable and ▇▇▇ for and recover, all unpaid
rent for the unexpired period of the Lease Term (and also all additional rent as
the amounts thereof can be determined or reasonably estimated) as if by the
terms of this Lease the same were payable in advance, together with all legal
fees and other expenses incurred by Landlord in connection with the enforcement
of any of Landlord's rights and remedies hereunder.
(c) Terminate this Lease, in which event Tenant shall immediately
Surrender the Premises to Landlord; and if Tenant fails to do so, Landlord may,
without prejudice to any other remedy which it may have for possession or
arrearages in rent, enter upon and take possession of the Premises and expel or
remove Tenant and any other person who may be occupying the Premises or any part
thereof, without being liable for trespass or any claim for damages therefor,
and Tenant agrees to pay to Landlord on demand the amount of all loss and damage
which Landlord may suffer by reason of such termination, whether through
inability to relet the Premises on satisfactory terms or otherwise, including
the loss of rental for the remainder of the Lease Term.
(d) Without termination of the Lease, enter upon and take
possession of the Premises and expel or remove Tenant and any other person who
may be occupying the Premises or any part thereof, without being liable for
trespass or any claim or damages therefor; and if Landlord so elects, relet the
Premises on behalf of the Tenant on such terms as Landlord shall deem advisable
and receive the rent therefor, and Tenant agrees to pay to Landlord on demand
any deficiency that may arise by reason of such reletting for the remainder of
the Lease Term.
(e) Without termination of the Lease, enter upon the Premises, by
force if necessary, without being liable for trespass or any claim for damages
therefor, and do whatever Tenant is obligated to do under the terms of this
Lease; and Tenant agrees to reimburse Landlord on demand for any expenses which
Landlord may incur in thus effecting compliance with Tenant's obligations under
this Lease, and Tenant further agrees that Landlord shall not be liable for any
damages resulting to the Tenant from such action.
(f) If Tenant fails to perform any covenant or observe any
condition to be performed or observed by Tenant hereunder or acts in violation
of any covenant or condition hereof, Landlord may, but shall not be required to
on behalf of Tenant, perform such covenant and/or take such steps, including
entering upon the Premises, as may be necessary or appropriate, if Landlord
shall have given Tenant at least three (3) days prior written notice of
Landlord's intention to do so, unless an emergency situation exists, in which
case Landlord shall have the right to proceed immediately and all costs and
expenses incurred by Landlord in so doing, including reasonable legal fees,
shall be paid by Tenant to Landlord upon demand, plus interest at the overdue
interest rate set forth herein from the date of expenditure(s) by Landlord, as
additional rent. Landlord's proceeding under the rights reserved to Landlord
under this Section shall not in any way prejudice or waive any rights Landlord
might otherwise have against Tenant by reason of Tenant's default.
(g) Exercise any other rights and remedies available to Landlord at
law or in equity. No reentry or taking possession of the Premises by Landlord
shall be construed as an election on its part to terminate this Lease, unless a
written notice of such intention be given to Tenant. Neither pursuit of any of
the foregoing remedies provided nor any other remedies provided herein or by law
shall constitute a forfeiture or waiver of any rent due to Landlord hereunder or
of any damages accruing to Landlord by reason of the violation of any of the
terms, provisions and covenants herein contained. Landlord's acceptance of rent
following an Event of Default hereunder shall not be construed as Landlord's
waiver of such Event of Default. No waiver by Landlord of any violation or
breach of any of the terms, provisions and covenants herein contained shall be
deemed or construed to constitute a waiver of any other violation or Event of
Default. The loss or damage that Landlord may suffer by reason of termination of
this Lease or the deficiency from any reletting as provided for above shall
include the expense of repossession and any repairs or remodeling undertaken by
Landlord following possession. Should Landlord at any time terminate this Lease
for any default, Tenant shall not be relieved of its liabilities and obligations
hereunder and, in addition to any other remedy Landlord may have, Landlord may
recover from Tenant all damages Landlord may incur by reason of such default,
including the cost of recovering the Premises and the loss of rental for the
remainder of the Lease Term. Tenant's obligations and liabilities under this
Lease shall also survive repossession and reletting of the Premises by Landlord
- 22 -
pursuant to the foregoing provisions of this Section 21. Notwithstanding
anything to the contrary contained in this Section, in computing the amount due
Landlord as a result of any Event of Default by Tenant, Tenant shall not be
entitled to receive any credit, upon reletting by Landlord after Tenant's
default, for any rent or other sums received by Landlord in excess of those for
which Tenant is otherwise obligated herein.
(h) The abatement of Basic Rental, if any, and other concessions of
the Landlord (which may include among other items: (i) brokerage fees; (ii)
moving allowances; (iii) Tenant improvements; (iv) Lease assumptions; (v)
unamortized portions of the buildout; and (vi) any other cash allowances or
payments) are subject to the condition that, throughout the Lease Term, Tenant
will perform and comply with all of the terms, covenants and conditions of this
Lease to be performed or complied with by Tenant. If, after the occurrence of an
Event of Default, Landlord terminates this Lease or reenters and takes
possession of the Premises without such a termination, the abatement of Basic
Rental and other Landlord concessions shall cease to apply and Tenant shall be
obligated, within 10 days after demand, to pay to Landlord the Basic Rental
abated and the value of all Landlord's concessions. Landlord's right to recover
the Basic Rental abated and the value of all Landlord's concessions shall be in
addition to any other remedies available to Landlord as a result of such
termination or reentry.
(i) All rights and remedies of Landlord and Tenant herein
enumerated shall be cumulative, and none shall exclude any other right or remedy
allowed by law.
(j) in addition to any other rights and remedies provided
in this Lease, and with or without terminating this Lease, Landlord may with
force of law, re-enter, terminate Tenant's right of possession and take
possession of the Premises, the provision of this Section 21 operating as a
notice to quit, any other notice to quit or of Landlord's intention to re-enter
the Premises being hereby expressly waived.
(k) Notwithstanding anything to the contrary contained in
this Section, Landlord agrees to make reasonable efforts to mitigate its
damages, provided that (a) Landlord shall have no obligation to lease the
Premises in priority over any other space which may then be available or
thereafter become available in the Building; (b) Tenant shall also have an
obligation to make reasonable efforts to reduce any damages caused by its breach
of this Lease or other Event of Default hereunder; and (c) it shall be Tenant's
burden to prove that Landlord failed to comply with any standard imposed upon
Landlord in this subsection.
22. SURRENDER OF PREMISES.
----------------------
No act done and no failure to act by Landlord or its agents
during the term hereby granted shall be deemed an acceptance of a surrender of
the Premises, and no agreement to accept a surrender of the Premises shall be
valid unless the same be made in writing and signed by Landlord.
23. ATTORNEYS' FEES.
-----------------
In case it should be necessary or proper for Landlord or Tenant to
bring any action under this Lease or to consult or place this Lease, or any
amount payable by Landlord or Tenant hereunder, with an attorney concerning a
default of Landlord or Tenant hereunder, irrespective of whether such default is
later cured, then the non-prevailing party shall pay any and all reasonable
attorney's fees, court costs and expenses of the prevailing party incurred in
connection with such enforcement.
24. INTENTIONALLY OMITTED.
----------------------
25. MECHANICS' LIENS.
-----------------
Tenant shall not permit any mechanics' lien or other liens
to be placed upon the Premises or the Building or improvements thereon during
the Lease Term, caused by or resulting from any work performed, materials
furnished or obligation incurred by or at the request of Tenant (excluding,
however, the Landlord's performance of its obligations under this Lease). In the
case of the filing of any such lien Tenant will promptly, and in any event
within thirty (30) days after the filing thereof, satisfy or release such lien
by means of payment
- 23 -
thereof, bonding Landlord against any loss occasioned thereby (in which case
Tenant shall have the right in due diligence to contest and dispute such lien so
long as such bond remains in place), or take such other action as may be
otherwise acceptable to Landlord.
26. WAIVER OF SUBROGATION; INSURANCE.
--------------------------------
(a) Landlord and Tenant hereby release the other from any and all
liability or responsibility to the other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property, even
if such fire or other casualty shall have been caused by the fault or negligence
of the other party, or anyone for whom such party may be responsible.
(b) Tenant shall maintain throughout the Lease Term, at Tenant's
sole cost and expense, insurance against loss or liability in connection with
bodily injury, death, property damage and destruction, in or upon the Premises
or the remainder of the Land, and arising out of the use of all or any portion
of the same by Tenant or its agents, employees, officers, invitees, visitors and
guests, under policies of comprehensive general public liability insurance
having such limits as to each as may be reasonably required by Landlord from
time to time, but in any event of not less than Two Million Dollars ($2,000,000)
per occurrence for death or injury and Two Million Dollars ($2,000,000) per
occurrence for property damage or destruction and personal injury. Such policies
shall name Landlord and Tenant, (and, at Landlord's or such mortgagee's or
paramount lessor's or installment seller's request) any mortgagee of all or any
portion of the Buildings and any landlord of, or installment seller to, Landlord
as the insured parties, shall provide that they shall not be adversely modified
or canceled without the insurer agreeing to give at least thirty (30) days
prior written notice to Landlord and any other party designated as aforesaid and
shall be issued by insurers of recognized responsibility licensed to do business
in the jurisdiction in which the Building is located and acceptable to Landlord.
Copies of all such policies certified by the insurers to be true and complete
shall be supplied to Landlord and such mortgagees, paramount lessors and
installment sellers at all times.
27. INTENTIONALLY OMITTED.
---------------------
28. BROKERAGE.
---------
Tenant warrants that it has had no dealings with any broker or agent
other than Compass Management and Leasing, Inc. and ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇ Services
-------------------------------------------------------------------
Limited Partnership in connection with the negotiation or execution of this
--------------------
Lease, and Tenant agrees to indemnify Landlord against all costs, expenses,
attorneys' fees or other liability for commissions or other compensation or
charges claimed by any other broker or agent claiming the same by, through or
under Tenant.
29. ESTOPPEL CERTIFICATES.
---------------------
Tenant shall from time to time, within ten (10) business days after
Landlord shall have requested the same of Tenant, execute, acknowledge and
deliver to Landlord a written instrument in recordable form and otherwise in
such form as required by Landlord (i) certifying that this Lease is in full
force and effect and has not been modified, supplemented or amended in any way
(or, if there have been modifications, supplements or amendments thereto, that
it is in full force and effect as modified, supplemented or amended and stating
such modifications, supplements and amendments); and (ii) stating any other fact
or certifying any other condition reasonably requested by Landlord or reasonably
requested by any mortgagee or prospective mortgagee or purchaser of the Property
or of any Interest therein. Such certifications and representations shall not
act as an amendment to this Lease and shall not vary the terms of this Lease or
the rights of the Tenant hereunder. In the event that Tenant shall fail to
return a fully executed copy of such certificate to Landlord within the
foregoing ten (10) business day period, then Tenant shall be deemed to have
approved and confirmed all of the terms, certifications and representations
contained in such certificate, and Tenant irrevocably authorizes and appoints
Landlord as its attorney-in-fact to execute such certificate on behalf of
Tenant.
- 24 -
30. NOTICES.
-------
Each provision of this Lease or of any applicable governmental laws,
ordinances, regulations and other requirements with reference to the sending,
mailing or delivery of any notice or the making of any payment by Landlord to
Tenant or with reference to the sending, mailing or delivery or the making of
any payment by Tenant to Landlord shall be deemed to be complied with when and
if the following steps are taken:
(a) All rent and other payments required to be made by Tenant to
Landlord hereunder shall be payable to Landlord at the address for Landlord set
forth below or at such other address as Landlord may specify from time to time
by written notice delivered in accordance herewith. Tenant's obligation to pay
rent and any other amounts to Landlord under the terms of this Lease shall not
be deemed satisfied until such rent or other amounts have been actually received
by Landlord.
(b) All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address set forth below, or at such other
address within the continental United States as Tenant may specify from time to
time by written notice delivered in accordance herewith.
(c) With the exception of subsection (a) above, any notice or
document required or permitted to be delivered hereunder shall be deemed to be
delivered (i) when delivered personally or (ii) whether actually received or
not, two (2) business days after deposit in the United States Mail, postage
prepaid, registered or certified mail, return receipt requested; addressed to
the parties hereto at the respective addresses set out below, or at such other
address as they have previously specified by written notice delivered in
accordance herewith.
If to Landlord, at:
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇
If to Tenant, at:
▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
with a copy to:
The Premises
If and when included within the term "Landlord", as used in this instrument,
there are more than one person, firm or corporation, all shall jointly arrange
among themselves for their joint execution of such notice specifying some
individual at the specific address for the receipt of notices and payments to
Landlord; if and when included within the term Tenant, as used in this
instrument, there are more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of such notice
specifying some individual at some specific address within the continental
United States for the receipt of notices and payment to Tenant. All parties
included within the terms "Landlord" and "Tenant", respectively, shall be bound
by notices given in accordance with the provisions of this paragraph to the same
effect as if each had received such notice.
31. FORCE MAJEURE.
-------------
Except as otherwise provided in this Lease, whenever a period of time
is herein prescribed for action to be taken by Landlord or Tenant or whenever
Landlord or Tenant is otherwise obligated to perform hereunder, neither Landlord
nor Tenant shall be liable or responsible for, and there shall be excluded from
the computation for any such period of time, any delays or failures to perform
due to strikes, riots, acts of God, shortages of labor or materials, war,
governmental laws, regulations or restrictions or any other causes of any kind
whatsoever which are beyond the reasonable control of that party; provided,
however, that the failure to pay any rent or additional rent hereunder, for any
reason, shall not be considered to be beyond the reasonable control of Tenant.
- 25 -
32. SEVERABILITY
------------
If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the Lease Term,
then and in that event, the remainder of this Lease shall not be affected
thereby.
33. AMENDMENTS; WAIVER; BINDING EFFECT.
----------------------------------
The provisions of this Lease may not be waived, altered, changed or
amended, except by instrument in writing signed by both parties hereto, and such
instrument may be subject to the approval of any mortgagees, and ground lessors
of record. The acceptance of Basic Rental, additional rent or other payments by
Landlord, or the endorsement or statement on any check, any letter accompanying
any check or other tender of Basic Rental, additional rent or other payment
shall not be deemed an accord and satisfaction or a waiver of any obligation of
Tenant, regardless of whether Landlord had knowledge of any breach of such
obligation. The terms and conditions contained in this Lease shall apply to,
inure to the benefit of, and be binding upon the parties hereto, and upon their
respective successors in interest and legal representatives, except as otherwise
herein expressly provided.
34. QUIET ENJOYMENT.
---------------
Provided Tenant has performed all of the terms and conditions of this
Lease, including the payment of rent, to be performed by Tenant, Tenant shall
peaceably and quietly hold and enjoy the Premises for the Lease Term, without
hindrance from Landlord or others claiming through Landlord, subject to the
terms and conditions of this Lease and to all mortgages, ground leases and other
encumbrances to which this Lease is subject and subordinate.
35. LIABILITY OF TENANT.
-------------------
If there is more than one Tenant, the obligations hereunder imposed
upon Tenant shall be joint and several. If there is a guarantor of Tenant's
obligations hereunder, the obligations hereunder imposed upon Tenant shall be
the joint and several obligations of Tenant and such guarantor, and Landlord
need not first proceed against Tenant before proceeding against such guarantor
nor shall any such guarantor be released from its guaranty for any reason
whatsoever, including without limitation any extensions or renewals hereof, any
amendments hereto, any waivers hereof or failure to give such guarantor any
notices hereunder.
36. LANDLORD LIABILITY.
------------------
The liability of Landlord and all officers, employees, shareholders,
venturers or partners (general or limited) of Landlord to Tenant for any default
by Landlord under the terms of this Lease shall be non-recourse and limited to
the interest of Landlord in the Building, and Landlord or any officer, employee,
shareholder, venturer or partner (general or limited) of Landlord shall have the
right to sell or transfer all or any portion of the Land or the Building to any
third party, and upon any such sale or other transfer of all of the Building or
the Land, and the corresponding assignment of this Lease (and the Security
Deposit), the previous Landlord shall have no further liability or obligation to
Tenant hereunder or otherwise.
37. CERTAIN RIGHTS RESERVED BY LANDLORD.
-----------------------------------
Landlord shall have the following rights, exercisable without notice,
except as provided herein, and without liability to Tenant for damage or injury
to property, persons or business and without effecting an eviction, constructive
or actual, or disturbance of Tenant's use or possession or giving rise to any
claim or setoff or abatement of rent or affecting any of Tenant's obligations
hereunder:
(a) To change the name by which the Building is designated upon
four (4) months written notice to Tenant.
(b) To decorate and to make repairs, alterations, additions,
changes or improvements, whether structural or otherwise, in and about the
Building, or any part thereof, and for such purposes to enter upon the Premises
and, during the continuance of any such work, to temporarily close doors, entry
ways, public space and corridors in the Building, to interrupt or temporarily
- 26 -
suspend Building services and facilities and to change the arrangement and
location of entrances or passageways, doors and doorways, corridors, elevators,
stairs, toilets, or other public parts of the Building, so long as the Premises
are reasonably accessible. Landlord shall use reasonable efforts not to
interfere with the operation of Tenant's business when exercising its rights
under the provisions of this subsection (b).
(c) To grant to anyone the exclusive right to conduct any business
or render any service in or to the Building, provided such exclusive right shall
not operate to exclude Tenant from the use expressly permitted herein.
(d) To take all such reasonable measures as Landlord may deem
advisable for the security of the Building and its occupants, including without
limitation, the search of all persons entering or leaving the Building, the
evacuation of the Building for cause, suspected cause, or for drill purposes,
the temporary denial of access to the Building, and the closing of the Building
after normal business hours and on Saturdays, Sundays and holidays; subject,
however, to Tenant's right to admittance when the Building is closed after
normal business hours or on Saturdays, Sundays and holidays, under such
reasonable regulations as Landlord may prescribe from time to time which may
include, by way of example but not of limitation, that person entering or
leaving the Building, whether or not during normal business hours, identify
themselves to a security officer by registration or otherwise and that such
persons establish their right to enter or leave the Building.
38. FINANCIAL STATEMENTS.
---------------------
Tenant agrees to provide to Landlord within 14 days of request by
Landlord but no more than once per year, the most recent audited annual
financial statements of Tenant, including balance sheets, income statements, and
financial notes ("Statements"). Tenant consents that Landlord may release the
Statements to Landlord's subsidiaries, affiliates, lenders, advisors, joint
venture partners, or potential purchasers of the property for the purposes of
evaluating Tenant's financial condition with respect to performance under the
Lease. Landlord agrees to keep the Statements confidential, to take commercially
reasonable efforts to maintain the confidentiality of the Statements by those to
whom it releases the Statements, to not release the Statements to third parties
except as set forth herein, and not to use the same except for the purposes
outlined herein.
39. NOTICE TO LENDER.
-----------------
If the Premises or the Building or any part thereof are at any time
subject to a mortgage or a deed of trust or other similar instrument and the
Lease or the rentals are assigned to such mortgagee, trustee or beneficiary and
the Tenant is given written notice thereof, including the post office address of
such assignee, then Tenant shall not terminate this Lease or ▇▇▇▇▇ rentals for
any default on the part of Landlord without first giving written notice by
certified or registered mail, return receipt requested, to such mortgagee,
trustee, beneficiary and assignee, specifying the default in reasonable detail,
and affording such mortgagee, trustee, beneficiary and assignee a reasonable
opportunity to make performance, at its election, for and on behalf of the
Landlord.
40. MISCELLANEOUS.
--------------
(a) Any approval by Landlord and Landlord's architects and/or
engineers of any of Tenant's drawings, plans and specifications which are
prepared in connection with any construction of improvements in the Premises
shall not in any way be construed or operate to bind Landlord or to constitute a
representation or warranty of Landlord as to the adequacy or sufficiency of such
drawings, plans and specifications, or the improvements to which they relate, or
any use, purpose, or condition, but such approval shall merely be the consent of
Landlord as may be required hereunder in connection with Tenant's construction
of improvements in the Premises in accordance with such drawings, plans and
specifications.
(b) Each and every covenant and agreement contained in this Lease
is, and shall be construed to be, a separate and independent covenant and
agreement.
- 27 -
(c) Neither Landlord nor Landlord's agents or brokers have
made any representations or promises with respect to the Premises, the Building
or the Land except as herein expressly set forth and no rights, easements or
licenses are acquired by Tenant by implication or otherwise except as expressly
set forth in the provisions of this Lease.
(d) The submission of this Lease to Tenant shall not be construed
as an offer, nor shall Tenant have any rights with respect thereto unless and
until Landlord shall, or shall cause its managing agent to, execute a copy of
this Lease and deliver the same to Tenant.
(e) Notwithstanding anything to the contrary contained in this
Lease, if the Lease Term has not commenced within twenty-one (21) years after
the date of this Lease, this Lease shall automatically terminate on the twenty-
first (21st) anniversary of such date. The sole purpose of this provision is to
avoid any interpretation of this Lease as a violation of the Rule Against
Perpetuities, or any other rule of law or equity concerning restraints on
alienation.
(f) The terms of this Lease shall be construed in accordance with
the laws of the jurisdiction in which the Building is located.
41. ADDITIONAL RENT.
---------------
The Tenant shall pay as additional rent any money required
to be paid pursuant to the provisions of this Lease whether or not the same be
designated "additional rent". If such amounts or charges are not paid at the
time provided in this Lease, they shall nevertheless, if not paid when due, be
collectable as additional rent with the next installment of rent thereafter
falling due hereunder, but nothing herein contained shall be deemed to suspend
or delay the payment of any amount of money or charge at the time the same
becomes due and payable hereunder, or limit any other remedy of the Landlord.
42. ENTIRE AGREEMENT.
----------------
The Lease contains all covenants and agreements between
Landlord and Tenant relating in any manner to the rent, use and occupancy of
Premises and Tenant's use of the Building and other matters set forth in this
Lease. No prior agreement or understanding pertaining to the same shall be valid
or of any force or effect and the covenants and agreements of this Lease shall
not be altered, modified or added to except in writing signed by Landlord and
Tenant.
43. LEGAL PROCEEDINGS.
-----------------
Landlord and Tenant hereby waive the right to a jury trial in any
action, proceeding or counterclaim between Tenant and Landlord or their
successors arising out of this Lease or Tenant's occupancy of the Premises or
Tenant's right to occupy the same.
44. LAWS AND REGULATIONS.
--------------------
Tenant agrees at Tenant's expense to comply with all
applicable laws, ordinances, rules, and regulations, whether now in effect or
hereafter enacted or promulgated, of any governmental entity or agency having
jurisdiction of the Premises.
45. AMERICANS WITH DISABILITIES ACT ("ADA").
---------------------------------------
(a) Tenant hereby represents that it is not a public
accommodation, as defined in the ADA.
(b) The Landlord shall take whatever steps are necessary to cause the
common areas of the building to meet the requirements of Title III of the ADA.
(c) Except for the matters relating to initial buildout of
the Premises outlined in Section 7, for which Landlord shall be solely
responsible, the Tenant at its sole cost and expense shall be solely responsible
for taking any and all measures which are required to comply with the
requirements of Title I and/or Title III of the ADA within the Premises and, if
the measures required outside of the Premises are attributable to Tenant's
subsequent alterations to the Premises, outside of the Premises as well. Any
Alterations to the Premises made by Tenant for the purpose of complying with the
ADA or which otherwise
- 28 -
require compliance with the ADA shall be done in accordance with this Lease;
provided, however, that Landlord's consent to such Alterations shall not
constitute either Landlord's assumption, in whole or in part, of Tenant's
representation or confirmation by Landlord that such Alterations comply with the
provisions of the ADA.
(d) Tenant shall indemnify the Landlord for all claims, damages,
judgments, penalties, fines, administrative proceedings, costs, expenses and
liability arising from Tenant's failure to comply with any of the requirements
of Title I and/or Title III of the ADA within the Premises.
(e) Landlord shall indemnify the Tenant for all claims, damages,
judgments, penalties, fines, administrative proceedings, cost, expenses and
liability arising from Landlord's failure to comply with Title III of the ADA
within the common areas.
(f) Notwithstanding the provisions of subsection (b) herein, if (i)
Landlord causes Alterations or improvements to be made to the common areas of
the Building to comply with the ADA, and (ii) such Alterations or improvements
solely benefit the Premises, Tenant shall reimburse Landlord for all costs and
expenses incurred by Landlord in connection with the performance of such
Alterations or improvements.
46. ENVIRONMENTAL PROTECTIONS.
-------------------------
(a) Notwithstanding the generality of Section 9 above, Tenant shall
conduct all activity in compliance with all federal, state, and local laws,
statutes, ordinances, rules, regulations, orders and requirements of common law
concerning protection of the environment or human health ("Environmental Laws").
Tenant shall also cause its subtenants (if subtenants are permitted by this
Lease or are hereafter approved by Landlord), licensees, invitees, agents,
contractors, subcontractors and employees to comply with all Environmental Laws.
Tenant and its permitted subtenants, licensees, invitees, agents, contractors,
and subcontractors shall obtain, maintain, and comply with all necessary
environmental permits, approvals, registrations and licenses.
In addition to and not in limitation of the foregoing, Tenant, its
permitted subtenants, licensees, invitees, agents, contractors, subcontractors
and employees shall not generate, refine, produce, transfer, process or
transport Hazardous Material on, above, beneath or near the Premises, the
Building or the Land. As used herein, the term "Hazardous Materials" shall
include, without limitation, all of the following: (1) hazardous substances, as
such term is defined in the Comprehensive Environmental Response, Compensation
and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 (14), as amended by the
Superfund Amendments and Reauthorization Act of 1986, Pub. L. ▇▇. ▇▇-▇▇▇, ▇▇▇
▇▇▇▇. ▇▇▇▇ (▇▇▇. 17, 1986) ("▇▇▇▇"); (2) regulated substances, within the
meaning of Title I of the Resource Conservation and Recovery Act, 42 U.S.C.
Sections 6991-6991(i), as amended by ▇▇▇▇; (3) any element, compound or material
which can pose a threat to the public health or the environment when released
into the environment; (4) hazardous waste as defined in the Virginia Waste
Management Act, Title 10.1, Chapter 14 of the Code of Virginia; (5) petroleum
and petroleum byproducts; (6) an object or material which is contaminated with
any of the foregoing; (7) any other substance designated by any of the
Environmental Laws or a federal, state or local agency as detrimental to public
health, safety and the environment. Notwithstanding the foregoing, Tenant may
use within the Premises those Hazardous Materials as are commonly and legally
used or stored as a consequence of using the Premises for administrative or
professional offices, but only so long as the quantities thereof do not pose a
threat to public health, the environment, or would necessitate a "response
action" as that term is defined in CERCLA, and so long as Tenant strictly
complies or causes compliance with all applicable governmental rules and
regulations concerning the use of such Hazardous Materials.
(b) Tenant shall protect, indemnify and save Landlord harmless from
and against any and all liability, loss, damage, cost or expense (including
reasonable attorneys' fees) that Landlord may suffer or incur as a result of any
claims, demands, damages, losses, liabilities, costs, charges, suits, orders,
judgments or adjudications asserted, assessed, filed, or entered against
Landlord or any of the Building or the Land, by any third party, including,
without limitation, any governmental authority, arising from Tenant's breach of
Environmental Laws or otherwise arising from the alleged generation, refining,
production, storage, handling, use, transfer, processing, transportation,
- 29 -
release, spillage, pumping, pouring, emission, emptying, dumping, discharge or
escape of Hazardous Materials on, from or affecting the Premises, the Building
or the Land, including, without limitation, liability for costs and expenses of
abatement, correction, clean-up or other remedy, fines, damages, response
(including death) and property damage.
(c) Tenant, its permitted subtenants, licensees, invitees, agents,
contractors, subcontractors and employees shall not release, spill, pump, pour,
emit, empty, dump or otherwise discharge or allow to escape Hazardous Materials
onto the Land or Building, and Tenant shall take all action necessary to remedy
the results of any such release, spillage, pumping, pouring, emission, emptying,
dumping, discharge, or escape.
(d) Tenant shall within 48 hours of receipt deliver to Landlord
copies of any written communication relating to the Building or the Land between
Tenant and any governmental agency or instrumentality concerning or relating to
Environmental Laws.
(e) Tenant's obligations under this Section shall survive
the termination or other expiration of this Lease.
47. PARKING.
-------
Tenant, its permitted subtenants, licensees, invitees, agents,
contractors, subcontractors and employees shall not use parking spaces on the
Land or Building in excess of that number set out on the attached Data Sheet
which has been reasonably determined by Landlord to be Tenant's proportionate
share of the total parking spaces available on the Building and Land.
Notwithstanding anything contained herein, if any governmental regulation or
ordinance is enacted or amended after the effective date of this Lease so as to
allow or require a modification in Tenant's number of parking spaces, Landlord
reserves the right to make such modification without modifying in any way the
rent due hereunder or any other obligations of Tenant.
48. OPTION TO RENEW.
----------------
Tenant shall have the right to extend the term of this
Lease for one (1) additional three (3) year lease term (the "Renewal Term"),
upon the following conditions:
(a) Tenant is not in default under this Lease beyond any
applicable grace or cure period, either at the time any notice hereunder is
given, or at the time the Renewal Term is to commence;
(b) Landlord has made a good faith determination that
Tenant remains creditworthy;
(c) Tenant has not previously assigned the Lease or sublet more than
thirty percent (30%) of the Premises (except to an affiliated party as
described in section 11(e));
(d) Tenant has delivered to Landlord written notice of its intention
to exercise this option, not less than 300 days prior to the end of the Lease
Term;
(e) All lease terms for the Renewal Term shall be the same
as in this Lease, except that the Basic Rental and Landlord concessions, if any,
for the Renewal Term shall be negotiated in good faith between the parties; and
(f) If Landlord and Tenant fail to agree as to all terms
and sign an Addendum to the Lease extending the Lease term as provided in this
Section at least 240 days prior to the end of the lease term, all time periods
for Tenant herein being of the essence, then Tenant's right to extend the term
of this Lease shall lapse and Tenant's renewal option shall be of no force and
effect. The renewal option is personal to Tenant and is non-transferrable.
49. RIGHT OF FIRST OFFER.
--------------------
Beginning on the Commencement Date, Tenant shall have a one-time
first right of offer to lease the space on the fifth (5th) floor (the
"Additional Space") in the Building, provided:
- 30 -
(a) This right of first offer is subordinate to the rights of (i) the
current tenant in the Additional Space to renew, extend or otherwise negotiate a
new lease for the Additional Space; (ii) all future tenants in such space, to
renew or extend their leases; and (iii) existing tenants to the Additional Space
as of the date of execution of this Lease;
(b) Tenant is not in default under this Lease beyond any applicable
grace or cure period, either at the time the Additional Space becomes available
or at the time Tenant is to take occupancy of the Additional Space;
(c) Tenant has not previously assigned the Lease or sublet more than
thirty percent (30%) of the Premises (except to an affiliated party as described
in Section 11(e));
(d) Landlord has made a good faith determination that Tenant remains
creditworthy;
(e) Tenant must lease all of the Additional Space offered;
(f) Tenant exercises its option as provided in this Section by
delivering to Landlord written notice of its intention within five (5) business
days after Landlord has notified Tenant that the Additional Space is available,
which notice may be given by Landlord to Tenant up to six (6) months prior to
the anticipated availability date of the Additional Space;
(g) All terms of the lease of the Additional Space shall
be upon those terms and conditions as are negotiated in good faith between the
parties;
(h) Tenant executes an addendum or a new lease for the
Additional Space within fifteen (15) business days after Landlord's receipt of
Tenant's notice to lease the Additional Space; and
If Tenant fails to comply with each of the above conditions within
the time specified, all time periods herein for Tenant being of the essence,
then this right of first offer will lapse and be of no further force and effect,
and Landlord shall have the right to lease all or any part of the Additional
Space to a third party under the same or any other terms and conditions, whether
or not such terms and conditions are more or less favorable than those offered
to Tenant. This right of first offer to lease the Additional Space is personal
to Tenant and is non-transferrable.
50. TENANT ACCESS.
-------------
Subject to Landlord's reasonable regulations, Tenant shall have
access to the Premises 24 hours per day, 365 days per year, except in the case
of an emergency or when the Building may be closed by governmental authorities.
Landlord shall provide Tenant with a restricted entry access system for after-
hours access to the Building.
51. EXHIBITS.
--------
(i) Exhibit A - Outline of Premises
(ii) Exhibit B - Commencement Date Designation
(iii) Exhibit C - Rules and Regulations
IN WITNESS WHEREOF, the parties hereto have executed this
Lease and affixed their seals as of the date first above written.
Tenant:
WITNESS/ATTEST: INTERMETRICS, INC.
/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ (SEAL]
-------------------------- ---------------------------
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Secretary, Sr. VP, CFO Title: Chairman
- 31 -
Landlord:
THE EQUITABLE LIFE ASSURANCE
WITNESS/ATTEST: SOCIETY OF THE UNITED STATES
/s/ By:/s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------------------ ---------------------------- [SEAL]
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: INVESTMENT OFFICER
- 32 -
Plans Prepared By:
[LOGO] CROSS ▇▇▇▇▇▇▇ & ASSOCIATES
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
Fax (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇/▇▇/▇▇
▇▇▇▇▇ ▇▇▇
▇▇,▇▇▇ s.f.
THE CONCOURSE COMPASS
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ MANAGEMENT AND LEASING, INC.
A SUBSIDIARY OF EQUITABLE REAL
ESTATE INVESTMENT MANAGEMENT,
INCORPORATED
EXHIBIT A
N
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0' 10' 40'
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The Equitable Life Assurance Society of the United States
c/o Equitable Real Estate Investment
Management, Inc.
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The undersigned, by the execution of this letter, hereby confirms that the
Commencement Date of the Lease Term of that certain lease agreement (the "Lease
Agreement") by and between The Equitable Life Assurance Society of the United
States (the "Landlord") and the undersigned (the "Tenant") is__________, 1997,
and that the expiration date of the Lease Agreement is__________. All
capitalized terms not defined herein shall have the meanings assigned to them in
the Lease Agreement.
ACCEPTED AND AGREED to this ______day of _____________199_.
TENANT:
Intermetrics, Inc.
By:_____________________
Title:_____________________
EXHIBIT B
EXHIBIT C
RULES AND REGULATIONS
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1. Sidewalks, doorways, vestibules, halls, stairways, and similar areas
shall not be obstructed nor shall refuse, furniture, boxes or other items be
placed therein by Tenant or its officers, agents, contractors and employees, or
used for any purpose other than ingress and egress to and from the leased
premises, or for going from one part of the Building to another part of the
Building. Canvassing, soliciting and peddling in the Building or on the Land are
prohibited.
2. Plumbing fixtures and appliances shall be used only for the purposes
for which constructed, and no unsuitable material shall be placed therein.
3. No signs, directories, posters, advertisements, or notices shall be
painted or affixed on or to any of the windows or doors, or in corridors or
other parts of the Building, except, as shall be first approved in writing by
Landlord in its discretion. One building standard plaque will be prepared by
Landlord at Landlord's expense. No additional signs shall be posted without
Landlord's prior written consent as to location and form, and the cost of
preparing and posting such signs shall be borne solely by Tenant. Landlord shall
have the right to remove all unapproved signs without notice to Tenant, at the
expense of Tenant.
4. Tenant shall not do, or permit anything to be done in or about the
Building, or bring or keep anything therein, that will in any way increase the
rate of fire or other insurance on the Building, or on property kept therein or
otherwise increase the possibility of fire or other casualty.
5. Landlord shall have the power to prescribe the weight and position of
heavy equipment or objects which may overstress any portion of the floor. All
damage done to the Building by the improper placing of such heavy items will be
repaid at the sole expense of the responsible Tenant.
6. A Tenant shall notify the Building manager when safes or other heavy
equipment are to be taken in or out of the Building, and the moving shall be
done after written permission is obtained from Landlord on such conditions as
Landlord shall require. Any moving in or out of Tenant's equipment, furniture,
files, and/or fixtures shall be done only with prior written notice to Landlord,
and Landlord shall be entitled to prescribe the hours of such activity, the
elevators which shall be available for such activity and shall, in addition, be
entitled to place such other conditions upon Tenant's moving activities as
Landlord deems appropriate. Tenant shall bear all risk of loss relating to
damage incurred with respect to Tenant's property in the process of such a move,
and in addition, shall indemnify and hold Landlord harmless as to all losses,
damages, claims, causes of action, costs and/or expenses relating to personal
injury or property damage sustained by Landlord or any third party on account of
Tenant's moving activities.
7. Corridor doors, when not in use, shall be kept closed.
8. All deliveries must be made via the service entrance and elevators,
designated by Landlord for service, if any, during Landlord's normal operating
hours. Landlord's written approval must be obtained for any delivery after
normal working hours.
9. Each Tenant shall cooperate with Landlord's employees in keeping the
leased Premises neat and clean.
10. Tenant shall not cause or permit any improper noises in the
Building, or allow any unpleasant odors to emanate from the leased Premises, or
otherwise interfere, injure or annoy in any way other tenants, or persons having
business with them.
11. No animals shall be brought into or kept in or about the Building.
EXHIBIT C
12. No boxes, crates or other such materials shall be stored in hallways
or other common areas. When Tenant must dispose of crates, boxes, etc., it will
be the responsibility of Tenant to dispose of same prior to, or after the hours
of 7:30 a.m. and 6:30 p.m., respectively, so as to avoid having such debris
visible in the common areas during normal business hours.
13. No machinery of any kind, other than ordinary office machines such
as copiers, typewriters and PC's shall be operated on the leased Premises
without the prior written consent of Landlord, nor shall Tenant use or keep in
the Building any inflammable or explosive fluid or substance (including
Christmas trees or ornaments), or any illuminating materials, except candles. No
space heaters or fans shall be operated in the Building.
14. No bicycles, motorcycles or similar vehicles will be allowed in the
Building.
15. Any wall damage deemed by Building management to be excessive from
nails, screws, hooks, etc. shall be repaired by Tenant when requested by
Landlord. Nothing shall be affixed to, or made to hang from the ceiling of the
Premises without Landlord's prior written consent.
16. Landlord has the right to evacuate the Building in the event of fire
alarms, emergency or catastrophe.
17. No food and/or beverages shall be distributed from Tenant's office
without the prior written approval of the management of the Building.
18. No additional locks shall be placed upon any doors without the prior
written consent of Landlord. All necessary keys shall be furnished by Landlord,
and the same shall be surrendered upon termination of this Lease, and Tenant
shall then give Landlord or his agent an explanation of the combination of any
locks on the doors or vaults. Tenant shall initially be given two (2) keys to
the Premises by Landlord. No duplicates of such keys shall be made by Tenant.
Additional keys shall be obtained only from Landlord, at a fee to be determined
by Landlord.
19. Tenant will not locate furnishings or cabinets adjacent to
mechanical or electrical access panels so as to prevent operating personnel from
servicing such units as routine or emergency access may require. Cost of moving
such furnishings for Landlord's access will be for Tenant's account. The
lighting and air conditioning equipment of the Building will remain the
exclusive charge of the Building designated personnel.
20. Tenant shall comply with parking rules and regulations as may be
posted and distributed from time to time.
21. No portion of the Building shall be used for the purposes of lodging
rooms.
22. Vending machines or dispensing machines of any kind will not be
placed in the leased Premises by Tenant without prior written consent of
Landlord.
23. Prior written approval, which shall be at Landlord's sole
discretion, must be obtained for installation of window shades, blinds, drapes,
or any other window treatment of any kind whatsoever, other than building
standard mini blinds. Tenant shall not affix anything to the inside of the
exterior windows of the Building, nor damage or remove any window film or
reflective material affixed to such windows. Landlord will control all internal
lighting that may be visible from the exterior of the Building and shall have
the right to change any unapproved lighting, without notice to Tenant, at
Tenant's expense.
24. No Tenant shall make any changes or alterations to any portion of
the Building without Landlord's prior written approval, which may be given on
such conditions as Landlord may elect. All such work shall be done by
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EXHIBIT C
Landlord or by contractors and/or workmen approved by Landlord, working under
Landlord's supervision.
25. Tenant shall cooperate fully with all recycling programs of Landlord
and with any and all regulations, laws, etc. imposed on the Building by any
governmental body or Landlord's insurance carriers.
26. Landlord reserves the right to rescind any of these rules and make
such other and further rules and regulations as in its judgment shall from time
to time be needful for the operation of the Building, which rules shall be
binding upon each Tenant upon delivery to such Tenant of notice thereof in
writing.
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