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EXHIBIT 10.50
LEASE AGREEMENT
between
THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES
and
SPACEHAB, INC.
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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. 360 in the Building, generally outlined on the
floor plan attached hereto as Exhibit A (Section l(n)).
(b) Area of Premises Approximately 7,757 rentable square feet on the third
and New Premises (3rd) floor of the West Building (Exhibit A and Section
l(n)), and, on Substantial Completion, an additional 1,955
rentable square feet also on the third (3rd) floor of the
West Building.
(c) Building The Concourse, located at ▇▇▇▇-▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ (section l(e)).
(d) Basic Rental for S20.50 per rentable square foot per year payable in
Premises equal monthly installments of $13,251.54, subject to
adjustment as herein provided (Sections l(b) and 3).
(e) Annual Basic Rental $159,▇▇▇.▇▇ (Section 3).
For Premises
(f) Annual Basic Rental Three percent (3%) of the escalated Basic Rental
Escalation then in effect (Section 4).
(g) Additional Rent See Section 41.
(h) Lease Term Five (5) years and zero (O) months, commencing on the
Commencement Date (Sections l(k) and 2).
(i) Commencement Date See Section 1(f).
(j) Building Operation Monday through Friday, 8:00 a.m. to 6:00 p.m. and
Hours Saturday, 8:00 a.m. to 6:00 p.m.
(k) Permitted Use Any general business office purposes and for no other
purpose (Sections l(m) and 9).
(l) Tenant's Proportionate 2.26% (See Section l(u)), to be adjusted to 2.83% on
Share of Basic Cost Substantial Completion of the New Premises.
& Real Estate Taxes
(m) Tenant's Proportionate 27 spaces, calculated at 3.5 per 1000 rentable square
Share of Parking feet (section 47), with Tenant receiving an additional 7
Spaces on Substantial Completion of the New Premises.
(n) Brokers Involved Compass Management and Leasing, Inc. and The ▇▇▇▇▇ ▇▇▇▇▇▇▇
Company
(o) Security Deposit See Section l(p) and 5.
(p) Notices If to Landlords:
The Equitable Life Assurance society of the United States
c/o compass Management and Leasing, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
if to Tenants:
At the Premises.
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LEASE AGREEMENT
THIS LEASE AGREEMENT is entered into the 30 day of November, 1995,
between THE EQUITABLE LIFE ASSURANCE SOCIETY OF THE UNITED STATES (hereinafter
called "Landlord"), whose address for purposes hereof is ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and SPACEHAB, INC., a corporation
(hereinafter called "Tenant"), whose address for purposes hereof is the
Premises.
1. DEFINITIONS.
(a) "Basic Costs" 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) real property, front-foot benefit, metropolitan and other
similar taxes, including any taxes imposed on lessen or income generated
thereon (exclusive of federal and state income and franchise taxes) or public
or private assessments, general or special, ordinary or extraordinary, foreseen
or unforeseen (other than Lease Taxes) levied against the Building or the Land,
(ii) 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) (111) costs of providing elevator, Janitorial and trash removal service,
restriping, resurfacing, maintaining and repairing all walkways, roadways and
parking arena on the Land, security costs, and Cost of maintaining grounds,
common areas and mechanical systems of the Building and the Land; (iv) all
other costs of maintaining and repairing any or all of the Building or Land'
(v) all costs reasonably allocated by Landlord to the common arena of the
Building and the Land in a multi-Building development; (vi) charges or fees for
any necessary governmental permits and licenses' (vii) management fees,
overhead and expenses reasonably related to management of the Building
(including salaries for personnel directly responsible for management of the
Building)' (viii) premiums for hazard, liability, workmen's compensation or
similar insurance upon any or all of the Building and the Land' (ix) costs
arising under service contracts with independent contractors) and (x) 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 landlords income tax returns'
(iii) salaries or other compensation of any personnel whose salaries are
covered by a management fee (except that the Building Engineer salary shall be
a Basic Cost and shall not be covered by the management fee)) (iv) ground rent
payments and any other charges or payments arising under any ground lease, (v)
legal foes for negotiating leases or enforcing the lease obligations of other
tenants in the Building' (vi) any costs for capital items used for the common
areas, except as otherwise provided in this Section; (vii) real estate
brokerage fees and commissions, or (viii) 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, in accordance with Generally Accepted
Accounting Principles, and with an appropriate reasonable interest factor
selected in good faith by Landlord. 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 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": $20.50 per rentable square foot per year
payable in equal monthly installments of $13,251.54, subject to adjustment as
herein provided.
(c) "Base Real Estate Taxes": The Real Estate Taxes for the
Building and the Land, payable in the calendar year 1996.
(d) "Base Year Stops" The Basic Cost incurred during the calendar
year 1996 divided by the number of rentable square feet in the Building.
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(e) "Building" The office building which has been constructed on
land located at ▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, and known as the
Concourse.
(f) "Commencement Date" The earlier off (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. The
Anticipated Commencement Date for the Premises is February 1, 1996, and for the
New Premises is November 1, 1996.
(g) "Event of Default": As defined in Section 20 of this Lease.
(h) "Excess" Is defined in Section 8 of this Lease.
(i) "Land": The entire tract of land on which the Building la
located and upon which other buildings are located which have shared common
facilities, and subject from time to time, to (1) 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. 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) "landlord's Contractor" Is defined in Section 7(d) of this
lease.
(k) "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.
(l) "New Premises" 1,955 rentable square feet of apace adjoining
the Premises, which Tenant will Lease from Landlord upon Substantial Completion
of such space, all as more specifically outlined in Section 49 herein.
(m) "Permitted Use" General business office purposes and for no
other purpose, subject to the provisions of Section 9.
(n) "Premises" Suite No. ***** in the Building, generally
outlined on the floor plan attached hereto as exhibit A and containing of
approximately 7,757 rentable square feet. The Premises shall be measured in
accordance with the Washington, D.C. Association of Realtors Standard Method of
Measurement for Office Buildings, and may be confirmed by Tenant's architect,
at Tenant's expense. Upon Substantial Completion of the New Premises, the
Premises shall be deemed to include the New Premises.
(o) "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.
(p) Security Deposits $53,006.16.
(q) "Special Tenant Works Is defined in Section 7(d) of this
lease.
(r) "Standard Tenant Works Is defined in Section 7(d) of this
lease.
(s) "Substantial Completion": The date when the work to be
performed by Landlord in the Premises, or New Premises as applicable, 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 or the New Premises.
For purposes of determining the date of Substantial Completion, in the event
off (i) changes in the work to be completed by Landlord in readying the
Premises or New Premises for Tenant's occupancy, which changes have been
requested by Tenant after the approval by Landlord and Tenant of the Tenant
Plane, (ii) delays, not caused by Landlord, in furnishing materials or
procuring labor required by Tenant for installations or work in the Premises or
New Premises which are not encompassed within Standard Tenant Work' (iii) any
failure by Tenant, to furnish any required plan, information, approval or
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consent (including, without limitation, the Tenant Plans) within the required
period of time, or any failure to cooperate with Landlord in the preparation of
the Tenant Plans, or (iv) the performance of any work or activity in the
Premise or New Premises by Tenant or any of its employees, agents or
contractors, the Premises or New Premises, as applicable, shall be deemed to be
Substantially Complete as of the date the Premises or New Promises would
otherwise have been Substantially Complete absent such delay. The decision of
Landlord's architect shall be finally determinative of the date of Substantial
Completion.
(t) "Tenant Plans": As defined in Section 7(a) of this Lease.
(u) "Tenant's Proportionate Share for Basic Costs 2.26~. 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. Tenant's
Proportionate Share for 8Islc Cost shall increase to 2.83% on Substantial
Completion of the New Premises.
(v) "Tenant's proportionate Share for Real Estate Taxes 2.62%.
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. Tenant's
Proportionate Share for Real Estate Taxes shall increase to 2.83% on
Substantial Completion of the New Premises.
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, 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.
(c) By occupying the Premises, 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 latent structural defects or "punch list. type items in the Tenant Plans
which may not have been completed. Tenant agrees that its failure to deliver to
Landlord such a written "punch list" within five (5) days of occupancy shall be
conclusive proof that no such items exist. Within five (5) business days of
delivery to Tenant by Landlord, Tenant agrees to execute and return to Landlord
a letter prepared by Landlord confirming the Commencement Date, a copy of which
la attached hereto as Exhibit B. certifying that Tenant has accepted delivery
of the Premises and that the condition of the Premises complies with Landlord's
obligations hereunder, subject to any "punch list" items in the Tenant plans
which may not have been completed.
3. BASIC RENTAL.
(a) Tenant promises and agrees to pay Landlord the Basic Rental
(subject to adjustment as hereinafter provided) without demand, notice,
deduction, recoupment, counterclaim 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.
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(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 (5) business 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 five percent (5%) of such monthly installment of the Basic Rental or
such other sums owed for each month or part thereof such payment la 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.
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 la on a day other than the first (let)
day of the month, or on the anniversary of the Commencement Date if the
Commencement Date la on the first (let) 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
----------------------------------------------------
1 $159,018.50 $13,251.54
2 $163,798.05 $13,649.09
3 $168,702.73 $14,058.56
4 $173,763.81 $14,480.32
5 $178,976.72 $14,914.73
5. SECURITY DEPOSIT.
The Security Deposit, which shall be paid upon execution of this Lease, shall
be held by Landlord in a federally insured banking or investment institution,
as security for the performance by Tenant of Tenant's covenants and obligations
under the Lease. The Security Deposit shall accrue interest, for Tenant's
benefit, at the passbook rate of interest paid by such institution from time to
time during the term of the 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, and
such Event of Default continues for fifteen (15) days after written notice from
Landlord (which notice may be given simultaneously with any other notice to
which Tenant is entitled under the Lease), 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 Security Deposit to its original amount. If Tenant is not
then in default hereunder, any remaining balance of the Security Deposit,
together with any interest accrued thereon, shall be returned by Landlord to
Tenant within a reasonable period of time after the termination of the Lease
and (1) Tenant shall have surrendered the entire Premises to Landlord, (ii)
Landlord shall have inspected the Premises after such vacation, and (ill)
Tenant shall have complied with all of the terms, conditions and covenants in
the Lease. If Landlord transfers its interest in the Premises during the Lease
Term, Landlord may assign the Security Deposit to the transferee and thereafter
shall have no further liability for the return of such Security Deposit.
6. LANDLORD'S OBLIGATIONS.
(a) Subject to the limitations hereinafter set forth, Landlord agrees,
while Tenant la occupying the Premises and provided an Event of Default by
Tenant has not occurred, to furnish to Tenant' (1) 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 Premises and electric lighting and a supply of electrical
current to the common areas of the 8ullding' (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 to
those services being customarily provided by landlords in comparable office
Buildings 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
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other local, State or federal governmental agency, Board or commission shall
adopt from time to time. In addition, Landlord agrees to maintain the public
and common areas of the Building, such as lobbies, 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 arena caused by
Tenant, or its employees, agents or invitees. 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
and, during the continuance of any such work, to temporarily close doors,
entryways, public apace and corridors in the Building and to interrupt or
temporarily suspend Building services and facilities. Landlord shall use
reasonable efforts not to materially interfere with the operation of Tenant's
business while decorating or making such repairs pursuant to this subsection.
(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 (1) any
such services are not furnished to the Premises for ten (10) or more
consecutive days after Landlord receives notice from Tenant, (11) the Premises
are thereby rendered untenable, and (111) the Landlord la not diligently
pursuing a cure of such interruption, then commencing with the eleventh (11th)
day after Landlord receives such notice, the Basic Rental shall be abated until
the Premises are again tenable.
7.IMPROVEMENT OF THE PREMISES.
(a) Landlord and Tenant agree to comply with the following schedule in
buildout of the Premises
(i) Landlord has prepared, and Tenant has approved a Space Plan
for the Premises dated November 1, 1995. Any modifications to the Space Plan
made after such date 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 Anticipated
Commencement Date that delivery of the Premises is delayed.
(ii) Landlord shall prepare and deliver to Tenant detailed floor
plan layouts, together with working drawings and written instructions
sufficiently detailed to enable Landlord to let firm contracts (herein called
"Tenant Planes) with respect to and reflecting the partitions and improvements
in the Premises. Tenant shall fully and completely cooperate with Landlord in
the preparation of the Tenant Plans, shall promptly respond to Landlord's
requests for information and approvals within three (3) business days after
Inquiry, and shall use it's best efforts to zealot Landlord to complete the
Tenant Plans as soon as possible. Tenant agrees to deliver to Landlord, not
later than three (3) business days after delivery of the Tenant Plans to
Tenant, an original executed copy of the Tenant Plans approved by Tenant,
provided, however, if Tenant, in good faith, reasonably objects to any aspect
of the Tenant Plans submitted by Landlord, Tenant shall specify in detail any
objection to such Tenant Plans as submitted to Tenant in a written notice to
Landlord within such 3-day period. Landlord shall, if applicable, modify such
Tenant Plans to address Tenant's written objections, and submit new Tenant
Plans to Tenant for approvals. Notwithstanding the foregoing, the Tenant Plans
shall remain subject to Landlord's review and
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approval, which approval shall not be unreasonably withheld, and shall be
deemed modified to take account of any changes reasonably required by Landlord.
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 Anticipated Commencement Date that occupancy is
delayed due to Tenant's failure to timely comply with the requirements in this
Section.
(iii) 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 shall, in a good and workmanlike manner, diligently cause
the Premises to be improved and completed in accordance with the Tenant Plans
by "landlord 'e Contractor. (as hereinafter defined). Landlord reserves the
right however, (1) to make substitutions of material of equivalent grade and
quality when and if any specified material shall not be readily and reasonably
available, and (11) 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) In the completion and preparation of the Premises in accordance
with the Tenant Plans, Landlord agrees to perform at its own expense those
items of work eat forth on the schedules attached hereto as Exhibit D Building
Standard Materials and Exhibit A - Tenant Space Plan (herein collectively
referred to as Standard Tenant Work), to the extent required by Tenant Plans.
All work requested by or as a result of actions of Tenant to be performed by
Landlord in addition to or in substitution for Standard Tenant Work la
hereinafter referred to as "Special Tenant Work." All Special Tenant Work shall
be furnished, installed and performed by Landlord, utilizing a general
contractor or construction manager (Landlord's Contractor.) selected by
Landlord (which may be an affiliate of Landlord or a partner in Landlord or an
affiliate of a partner in Landlord) for and on behalf of Tenant and at Tenant's
sole expense, based on Landlord's out-of-pocket contract or purchase price for
materials, labor and service, including, without limit, any reasonable
contractor 'e fee for the contractors overhead and profit and charges for
cutting, patching, cleaning up and removal of waste and debris, plus architect'
and engineer' 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 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 Special Tenant Work performed
(including, for this purpose, material for Special Tenant Work purchased and
delivered to the Building to the date of the invoice), lease the amounts paid
by Tenant on account.
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 Ma 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 (1) 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 operating expenses for the next year or refund to Tenant any
overpayment, or (ii) less than
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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 sixty (60) days after receipt of such
statement, 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
any statement of any 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. In the
event that Tenant's inspection discloses that Landlord's ▇▇▇▇▇▇▇▇ to Tenant for
increased Operating Expenses exceeded by five percent (5%) the actual operating
expenses attributable to Tenant, then Landlord shall refund the difference as
noted in subsection (b) and will pay Tenant for the reasonable expense incurred
for an independent third-party in performing such inspection, but in any event
not more than 61,000.00.
(d) Should Tenant require any additional work or service, including
but not limited to heating, ventilation and sir 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 WOO 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, 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.
(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 la deemed by Landlord to be in exceed 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 amid 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. Tenant's
obligation to pay any and all additional rent or other sums owing by Tenant to
Landlord under this Lease shall survive any expiration or termination 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 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 on demand. 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 privacy of other tenants or Landlord in the
management of the Building. Tenant shall not, without the prior written consent
of Landlord, paint, install lighting or decorations, which consent shall not be
unreasonably withheld, or install any signs, window or door lettering or
advertising media of any type on or about the Premises or any part thereof.
10. TENANT'S REPAIRS AND ALTERATIONS.
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
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part thereof by Tenant or Tenant's agents, employees or invitees. 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 any plate glass and special store fronts, in good
condition and make all necessary non-structural repairs and replacements except
those canard by fire, casualty, Landlord's willful misconduct or negligence, or
acts of cod 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
Landlords cost thereof plus fifteen percent (15%) for overhead costs.
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
partition, 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 or common Building operating systems.
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 claims, in such
amounts and with such companies as Landlord may require in connection with any
such maintenance, repair, alteration, addition or improvement.
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, fire, casualty and damage caused by
Landlord's willful misconduct or negligence 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, provided,
however, that if Landlord elects to have Tenant remove any alteration,
addition, improvement or partition, Landlord shall make such election upon
giving consent to such alteration, addition, improvement or partition. Tenant
shall then remove such alteration, addition, improvement or partition whether
erected by Landlord or Tenant, 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. Landlord hereby elects to have any and
all computer and/or telephone cables installed by Tenant or which may in the
future be installed by Tenant, removed upon the termination of the Lease or
upon Tenant's earlier vacating of the Premises. If Tenant falls 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 Required. 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 justified 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 Landlord. Any reasonable expenses incurred by Landlord with respect to the
review and consent or denial of consent of the foregoing 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 thirty (30) days prior to the
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effective date of such proposed Assignment or sublease. The notice to Landlord
must include a copy of the proposed assignment or subleasee and a copy of the
proposed assignee's or subtenant's financial statement for its most recent
fiscal year, prepared in accordance with generally accepted accounting
principles and certified by a public accountant or an executive officer of the
proposed assignee or subtenant.
(ii) The assignee or subtenant moat have a credit rating which is
better than or equal to that of Tenant, as reasonably determined by Landlord.
(iii) The subleasee 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 Americana 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 8uilding, 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 claims:
"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 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 privily of contract between Landlord and
Subtenant or other contractual liability 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 of all of its covenants and obligations under the
underlying Lease, and authorizes Landlord 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 Consent. Tenant shall have the right to Assign the
Lease or sublet the Premises or a portion thereof after first obtaining the
written consent of Landlord as provided in Section II (a) above. Upon receipt
of Landlord's consent to such assignment or sublease, Tenant shall 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 (amortized in equal monthly payments over the remaining
term of the Lease, if assigned, or, if applicable, over the initial term of
such subleased. 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 herein, 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.
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(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 cue 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.
(e) Subsidiary or Affiliate. Provided Tenant delivers notice to
Landlord not less than thirty (30) days prior to any such Assignment or
sublease, Tenant may assign this Lease, or sublease all or part of the
Premises, without the consent of Landlord, to:
(i) any corporation that has the power to direct Tenant's
management and operation with a net worth comparable to Tenant's, or any
corporation whose management and operation is controlled by Tenant with a net
worth comparable to Tenant's or by Tenant, or
(ii) any corporation a majority of whose voting stock is owned.
(iii) any corporation in which or with which Tenant, its
corporate successors or assigns, is merged or consolidated, in accordance with
applicable statutory provisions for merger or consolidation of corporations, so
long as (A) the liabilities of the corporations participating in such merger or
consolidation are assumed by the corporation surviving such merger or created
by such consolidation and (B) the successor can demonstrate by balance sheets
and other financial documentation submitted to Landlord that it is capable 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 lease, if any, and Landlord's managing agent, if
any, from and against and from all fines, damages, cults, claims, demands,
leans 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 lose or damage to any
property or death or injury to any person (including Tenant, its agents,
employees or invitees) 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 to Tenant 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
injury, damage or claim which shall be made against Tenant by any agent,
employee, licensee or invites of Landlord or by others claiming the right to be
on or about the common areas for any injury, lose or damage to person or
property occurring upon the common areas, unless due to Tenant's negligence or
willful malconduct.
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, mortgagee, 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 instrument and certificates
that in the reasonable
13
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 attain 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 attain to the ground lessor. Tenant shall upon demand at any time
execute, acknowledge and deliver to Landlord's mortgagee (including the
beneficiary under any deed of 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 attainment. 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. 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. Any such
promulgated Rules and Regulations shall be nondiscriminatory and shall apply
fairly to all tenants of the Building. Tenant shall be responsible for
compliance therewith by the agents, contractors, employees and invitees of
Tenant.
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) (Landlord shall use retainable efforts not to
materially interfere with the operation of Tenant's business during any such
inspections and shall use reasonable efforts to notify Tenant, except in
emergency situations, of such inspections) (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), 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 doomed 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 too rent payable hereunder during the unexpired portion of this
Lease shall be adjusted to reflect Tenant's new proportionate share of the
Building. In the event of any such taking or
14
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 wee so reduced.
17. FIRES AND OTHER CASUALTY.
In the event of damage to or destruction of the Premises or the
Building, or the entrances and other common faculties necessary to provide
normal access to the Premises, caused by fire or other casualty, Tenant shall
provide immediate notice thereof to Landlord, and Landlord shall make repairs
and restorations as hereafter expressly provided, unless this Lease shall be
terminated by Landlord or unless any mortgagee which la 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, or (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, 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 (i) sufficient casualty insurance
proceeds are available for use for such restoration or repair, and (ii) this
Lease is then in full force and effect, Landlord shall proceed promptly and
diligently to restore the 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 (unless such
improvements or alterations become 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 done
not manure or agree to issue 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 negligence or
willful misconduct of the Tenant or any of its agents, employees or invitees,
and which la of a nature or extent that Tenant is 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 to 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
the period of any holdover, an amount equal to one hundred fifty percent (1501)
of the Basic Rental in effect on the termination date, computed on a
15
dally basis for each day of the holdover period. No holding over by Tenant
shall attempt to extend this Lease except as otherwise expressly provided in
this Lease. The foregoing notwithstanding, Landlord, in addition to accepting
the dally 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.
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
(11) 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 substitutions
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 capital stock tax,
excess profits tax, transfer tax, or federal, state or local corporate income
tax. Real Estate Taxes shall also include all expenses incurred by Landlord in
obtaining or attempting to obtain a reduction of Real Estate Taxes, including
but not limited to, legal fees.
(b) Commencing on January 1, 1997, and on each January let thereafter,
Landlord may deliver to Tenant a statement of Landlord's 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 with each month 'e
Basic Rental, as additional rent, one-twelfth (1/12) of Tenant's aforesaid
percentage share of such estimated increase in the annual Real Estate Taxes,
except that Tenant's first payment shall include the (l/12th) monthly shares
for the months from January let 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 on January 1, 1998, Landlord shall deliver to Tenant a
statement (including therewith a copy of the Real Estate Tax ▇▇▇▇) 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 let of the than current calendar year, or as Boon
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 increases in the annual Real Estate Taxes exceeded
Tenants 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 or any
refund to which Tenant la entitled from Landlord 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.
(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 la 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 la primarily liable hereunder. Should Landlord receive a
tax credit or abatement by virtue of its ownership of the Building, Operating
Expenses and Tenant's Proportionate Share of Real Estate Taxes shall be
adjusted to reflect the benefit of such credit or abatement.
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 fall 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) business days after Landlords written notice thereof to Tenant.
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(b) Tenant shall fall to comply with or observe any other provision of
this Lease (or any other lease now or hereafter executed by Tenant in
connection with apace in the Building), and same la 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 abort 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 thirty (30) days in which to complete the cure of said
default.
(c) Tenant abandons the Premises, or removes or attempts to remove
Tenant's goods or property therefrom other than in the ordinary course of
business or dose not operate or hold the Premises open for business for more
than 10 consecutive days or for more than 30 non-consecutive days during any
three-month period, without regard to whether Tenant has paid to Landlord in
full all rent and charges that may have become due.
(d) 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 0a 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.
(e) 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 receivor, sequestrator, trustee or liquidator of Tenant or any
partner or guarantor of Tenant or any of its or his property, and such
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order, judgment or decree shall continue unpayed 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
remedial without any notice or demand whatsoever.
(a) Distrain, 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.
(b) Declare due and payable and are 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 falls 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 premises or any claim for damages
therefor, and Tenant agrees to pay to Landlord on demand the amount of all lose
and damage which Landlord may suffer by reason of such termination, whether
through liability to relet the Premises on satisfactory terms or otherwise,
including the lose 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 premises
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 expanses 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) business 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 sat forth herein from the date of expenditure(a) 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 remedial 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 lose 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
18
remodeling undertaken by Landlord following possession. Should Landlord at any
time terminate this Lease for any Event of 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 Event of Default, including the cost of
recovering the Premises and the loss of rental for the remainder of the Lease
Term. Tenant's obligations and liability under this Lease shall also survive
repossession and reletting of the Premises by Landlord 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 break (ii)
moving allowances, (iii) Tenant improvements, (iv) Lease Assumptions, (v)
unamortised 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
possessions 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' a 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 remedial 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 provisions 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 any of the provisions of this Section 21, Landlord
shall not seize any legally confidential information of Tenant, of any of
Tenants licensees or of the United States Government.
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 to bring any
action under this Lease concerning a default of Tenant hereunder, irrespective
of whether such default is later cured, then Tenant shall pay any and all
reasonable attorney's fees, court costs and expenses of Landlord incurred in
connection with such enforcement.
24. INTENTIONALLY OMITTED.
25. MECHANICS' LIENS.
Tenant shall not permit any mechanical lien or other liens to be
placed upon the Premises or the Building or improvements thereon during the
Lease Term, canned by or resulting from any work performed, materials furnished
or obligation incurred by or at the request of Tenant. 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 thereof, bonding Landlord against any lose 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 lose or damage
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to property, but only to the extent that such lose or damage la covered by the
greater of any insurance then in force or required to be carried hereunder, 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 provided,
however, that such release shall be applicable and in force and effect only with
respect to any lose or damage occurring during such time as the policy or
policies of insurance covering said loss shall contain a clause or endorsement
to the effect that this release shall not adversely affect or impair said
insurance or prejudice the right of the insured to recover thereunder.
(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 lease than One Million Dollars
($1,000,000) per occurrence for death or injury and One Million Dollars
($1,000,000) 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 additional insured portion, shall provide
that they shall not be modified or canceled without 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.
(c) Landlord shall maintain throughout the Lease Term insurance
coverage in such amounts as are carried by owners of other comparable office
buildings in the same general area of the Building, including, without
limitation, comprehensive general liability insurance and insurance on the
Building and the structural improvements therein.
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 The ▇▇▇▇▇ ▇▇▇▇▇▇▇ Company in
connection with the negotiation or execution of this Lease, and Tenant agrees
to indemnify Landlord against all coats, 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 ton (10) 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
boon modified, supplemented or amended in any way (or, if shore have boon
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 requested by any mortgagee
or prospective mortgagee or purchaser of the Property or of any Interest
therein. In the event that Tenant shall fail to return a fully executed copy of
such certificate to Landlord within the foregoing ten (10) day period, than
Tenant shall be deemed to have approved and confirmed all of the forms,
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.
30. NOTICES.
Each provision of this Lease or of any applicable governmental laws,
ordinances, regulations and other requirements with reference to the Bonding,
mailing or delivery of any notice or the making of any payment by Landlord to
Tenant or with reference to the vending, 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.
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(b) All payments required to be made by Landlord to Tenant hereunder
shall be payable to Tenant at the address sot 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, when
deposited 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:
Compass Management and Leasing, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
If to Tenant, at:
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.
Whenever a period of time is herein proscribed 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 shore shall be excluded from the computation for any such period of
time, any delays or failures to perform duo 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
retainable 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.
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 chock, 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 Lasso
shall apply to, inure to the benefit of, and be binding upon the parties
hereto, and upon their respective successors in interest and legal
representative, except as otherwise heroin 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 mortgagee, 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
21
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, 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 apace and corridors in the Building, to interrupt or temporarily 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.
(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 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.
Notwithstanding the foregoing, Landlord agrees to use reasonable
efforts while exercising the above rights, not to materially interfere with the
operation of Tenant's business.
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 and to not release
the Statements to third parties except as set forth herein. Landlord further
agrees to make reasonable efforts to obtain a confidentiality agreement from
independent third parties reviewing the Statements.
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
22
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 Tenants drawings, plane and specification 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.
(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) Time is of the essence as to all provisions of this Lease
applicable to Tenant's obligations hereunder.
(e) 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.
(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.
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(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 initial buildout of the Premises, which shall be
Landlord's responsibility, Tenant at its sole coat 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 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 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, coats, 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.
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), Licensee, 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 licensee.
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 Materials 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 followings (l) 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) ("▇▇▇▇"), t2) 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 Virginias (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, ▇▇▇▇▇ or local agency as
detrimental to public health, safety and the environment. Tenant shall be
permitted to store reasonable quantities of cleaning and office supplies,
provided, however, that such supplies are not 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, release, spilling, pumping, pouring, emission, emptying,
dumping, discharge or escape of Hazardous Materials by Tenant, its agents,
employees or invitees, 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, spilling, pumping,
24
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.
(f) Landlord warrants that, to its actual knowledge as of the
execution date of this Lease, no asbestos or Hazardous Materials are present in
the Premises.
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 shall be provided to Tenant at no cost and 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. 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 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.
49. THE NEW PREMISES.
Upon Substantial Completion of the improvements to be constructed by
Landlord in accordance with the Space Plan referenced as Exhibit F. Tenant
shall lease from Landlord an additional 1,955 rentable square feet of apace in
the Building, the outline of which is included on exhibit A (the "New
Premises"). Tenant shall lease the New Premises from Landlord on the following
terms and conditions:
(a) Tenant shall pay Landlord as Basic Rental for the New Premises at
a rate of $19.75 per rentable square foot per year, with the initial monthly
installment being $3,217.60, such amount to be paid in addition to the Basic
Rental otherwise paid to Landlord for the Premises.
(b) The Basic Rental for the New Premises shall be increased annually,
effective on each anniversary of Substantial completion of the New Premises, by
an amount equal to three percent (3%) of the escalated Basic Rental then in
effect for the New Premises, payable as follows
Year Annual Rental Monthly Rental
---- ------------- --------------
11/96-11/97 $38,611.25 $3,217.60
11/97-11/98 $39,769.59 $3,314.13
11/98-11/99 $40,962.65 $3,413.56
11/99-11/00 $42,191.56 $3,515.96
11/00 $43,457.30 $3,621.44
(c) Landlord shall construct improvements to the New Premises in
accordance with the Space Plan for the New Premises, a copy of which is
attached hereto as Exhibit F. and in accordance with the provisions of Section
7. Notwithstanding the foregoing, Landlord shall contribute up to $19,750.00
(the "Tenant Allowance") towards the completion of the buildout of the New
Premises, which Tenant Allowance shall include the cost of preparation of the
Space Plan and the Tenant Plans. Any coats in excess of the Tenant Allowance
shall be paid solely by Tenant and shall be considered additional rent under
the terms of the Lease.
(d) Upon Substantial Completion of the New Premises, Tenant's
Proportionate Share of Basic Cost shall be limited to 2.83% with all Excess
(as defined in Section 8) being paid by Tenant to Landlord as additional rent
in accordance with the provisions of Section 8.
(e) Except where inconsistent with the terms of this Section, all
other terms of the Lease shall apply to the New Premises, including the Lease
termination date.
50. FIRST RIGHT OF OFFER.
25
After the Commencement Date, Tenant shall have a one-time first right
to lease space contiguous to the Premises and the New Premises (the "Additional
Space") in the Building, provided:
(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 apace, to
renew or extend their leanest 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, either at the time the
Additional Space becomes available or at the time Tenant is to take occupancy
of the Additional Space;
(c) Landlord has made a good faith determination that Tenant remains
creditworthy,
(d) Tenant must lease all of the Additional Space offered;
(e) Tenant exercises its option as provided in this Section by
delivering to Landlord written notice of its intention within three (3)
business days after Landlord has notified Tenant that the Additional Space is
available;
(f) 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; and
(g) Tenant executes an addendum or a new lease for the Additional
Space within twenty (20) 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, 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 forms 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-transferable
51. THE EXHIBITS.
26
(i) Exhibit A - Outline of Premises
(ii) Exhibit B - Tenant Acceptance Letter
(iii) Exhibit C - Rules and Regulations
(iv) Exhibit D - Building Standard Materials
(v) Exhibit E - Tenant Space Plan
(vi) Exhibit F - Space Plan for New Premises
IN WITNESS WHEREOF, the parties hereto have executed this Lease and
affixed their seals as of the date fires above written.
Tenant:
WITNESS/ATTEST: SPACEHAB, INC.
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (SEAL)
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Secretary
Landlord:
THE EQUITABLE LIFE ASSURANCE
WITNESS/ATTEST: SOCIETY OF THE UNITED STATES
/s/ ▇▇▇▇ ▇. Ruckhaidt By: /s/ R. ▇▇▇▇ ▇▇▇▇▇▇▇ (SEAL)
Name: R. ▇▇▇▇ ▇▇▇▇▇▇▇
Title: Investment Officer
27
INSERT GRAPHIC OF SUITE 360 FLOOR PLAN
28
The Equitable Life Assurance Society of the United States
c/o Compass Management and Leasing, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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 Concourse Associates Limited Partnership (the
"Landlord") and the undersigned (the "Tenant") is , 1996, and Tenant hereby
accepts delivery of the Premise" and recognizes that the Landlord has fulfilled
all obligations regarding the delivery of the Premises subject to any "punch
list" items in the Tenant Plans which may not have been completed. All
capitalized term not defined herein shall have the meanings assigned to them in
the Lease Agreement.
ACCEPTED AND AGREED to this _______ day of _______________, 1996.
TENANT:
SPACEHAB, INC.
By:
Title:
29
EXHIBIT C
THE CONCOURSE
BUILDING RULES AND REGULATIONS
1. The sidewalks, entries, passages, court corridors, stairways and
elevators shall not be obstructed by any of the Tenants, their employees or
agents, or used by them for purposes other than ingress and egress to and from
their respective suites.
All safes or other heavy articles shall be carried up or into the
premises only at such times and in such manner as shall be prescribed by the
Landlord and the Landlord shall in all cases have the right to specify the
proper weight and position of any such safe or other heavy article prior to its
being brought into the Building by Tenant. Any damage done to the Building by
taking in or removing any such equipment or from overloading any floor in any
way shall be paid by Tenant. Defacing or injuring in any way any part of the
Building by the Tenant, his agents or employees, shall be paid for by the
Tenant.
2. Tenant shall refer all contractors, contractors' representative and
installation technicians rendering any service to the premises for Tenant to
Landlord for Landlord's approval and supervision before performance of any
contractual service. This provision shall apply to all installations and
improvements performed in the Building of any nature affecting floors, walls,
woodwork, trim, windows, ceilings, equipment or any other physical portion of
the Building. Such approval, if given, shall in no way make Landlord or Owner,
a party to any contract between Tenant and any such contractor, and Landlord
and Owner shall have no liability therefor.
3. No sign, advertisement or notice shall be inscribed, painted or
affixed on any part of the inside or outside of the said Building unless of
such color, else and style and in such place upon in sand Building as shall
first be designated by Landlord; there shall be no obligation or duty on
Landlord to allow any sign, advertisement or notice to be inscribed, painted or
affixed on any part of the inside or outside of said Building. Signs on doors
will be arranged for the Tenant by a sign company approved by the Landlord, the
cost of the signage to be paid by the Tenant unless the Building Standard
signage listed in Exhibit C is chosen. A directory, in a conspicuous place,
with the names of the Tenant, will be provided by Landlord, any necessary
revision in this will be made by Landlord within a reasonable time after notice
from the Tenant of the error or change making the revision necessary. No
furniture shall be placed in front of the Building or in any lobby or corridors
without written consent of Landlord. Landlord shall have the right to remove
all other signs and furniture, without notice to Tenant at the expense of
Tenant.
4. Tenant shall have the non-exclusive use in common with the
Landlord, other tenants, their guests and invitees, of the automobile parking
arena, driveways and footways, subject to rules and regulations for the use
thereof as prescribed from time to time by Landlord. Landlord shall have the
right to designate parking arena for the use of the building tenants and their
employees, and the tenants and their employees shall not park in parking arena
not so designated, specifically including driveways, fire lanes,
loading/unloading areas, walkways and building entrances. Tenant agreed that
upon written notice from Landlord, it will furnish to Landlord, within five (5)
days from receipt of such notice, the state automobile license numbers assigned
to the automobiles of the Tenant and its employees, owner and Landlord shall
not be liable for any vehicle of the Tenant or its employees that the Landlord
shall have towed from the premises when illegally or improperly parked. Owner
and Landlord will not be liable for damage to vehicles in the parking arena or
for theft of vehicles, personal property from vehicles, or equipment of
vehicles, except in the case of willful misconduct or gross negligence on the
part of Owner or Landlord.
5. Tenant shall have the non-exclusive use in common with the
Landlord, other tenants, and others approved by Landlord, of the use of the
Building's common arena, recreational arena, conference center, and designated
exterior ground arena. Tenant shall abide by any and all rules, regulations,
restrictions, requirements and procedures Landlord has imposed or may impose in
the future for use of these arena. Failure to abide by these rules by Tenant,
Tenant's employees, Tenant's visitors, and Tenants guests may result in
Tenant's forfeiture of Tenant's use of those facilities and will be a default
under the terms of the Lease Agreement.
6. No Tenant shall do or permit anything to be done in said premises
or bring or keep anything therein, which will in any way increase the rate of
fire insurance on said Building, or on property kept therein, or obstruct or
interfere with the rights of other tenants, or in any way injure or annoy them
or conflict with the laws relating to fire, or with any regulations of the fire
department, or with any insurance policy upon said Building or any part
thereof, or conflict with any rules and ordinances of the local Board of Health
or any governing bodies.
7. The janitor of the Building may at all times keep a pass key to
non-restricted arena and he and other agents of the Landlord shall at scheduled
times be allowed admittance to acid Demised Premises.
8. No additional looks shall be placed upon any doors without the
written consent of the Landlord. All keys to the Demised Premises and Building
security card keys shall be furnished by Landlord at the rate of 1.75 keys per
1000 rentable square feet. Additional keys or Building Security Card Keys will
be furnished at Tenant's cost. Upon termination of this Lease, all keys and
Building Security Card Keys shall be
30
surrendered, and the Tenant shall then give the Landlord or his agents
explanation of the combination of all locks upon the doors of vaults.
9. No windows or other openings that reflect or admit light into the
corridors or passageways, or to any other place in said Building, shall be
covered or obstructed by any of the Tenants with the exception of Building
Approved drapery or Venetian blind installations.
10. No person shall disturb the occupants of the Building by the use
of any musical instruments, the making of unseemly noises or odors, or any
unreasonable use. No dogs or other animals or pets of any kind will be allowed
in the Building.
11. The water closets and other water fixtures shall not be used for
any purpose other than those for which they were constructed, and any damage
resulting to them from misuse, or the defacing or injury of any part of the
Building, shall be borne by the person who shall occasion it.
12. No bicycles or similar vehicles will be allowed in the Building.
13. Nothing shall be thrown out the windows of the Building or down
the stairways or other passages.
14. Tenant shall not be permitted to use or to keep in the Building
any kerosene, camphene, burning fluid or other illuminating materials.
15. If any tenant desires, at it's cost, telegraphic, telephonic or
other electric connections, Landlord or its agents will direct the electricians
as to where and how the wires may be introduced, and without such directions,
no boring or cutting for wires will be permitted.
16. If Tenant desires, at it's cost, shades, draperies, or awnings
they moat be of such shape, color, materials and make as shall be prescribed by
Landlord. Any outside awning proposed may be prohibited by Landlord. Landlord
or its agents shall have the right to enter the premises to examine the same or
to make such repairs, alterations or additions as Landlord shall deem necessary
for the safety, preservation or improvement of the Building, and the Landlord
or its agents may show acid premises at scheduled times and may place on the
windows or doors thereof, or upon the bulletin board, a notice "For Rent" for
one month prior to the expiration of the Lease.
17. No portion of the Building shall be used for the purpose of
lodging rooms or for any immoral or unlawful purposes.
18. All glass, locks and trimmings in or about the doors and windows
and all electric fixtures belonging to the Building shall be kept whole, and
whenever broken by Tenant shall be immediately replaced or repaired and put in
order at Tenant's expense under the direction and to the satisfaction of
Landlord, and on removal shall be left whole and in good order.
19. Landlord reserves the right at any time to temporarily take one
elevator out of service to Tenants for exclusive use by the Building Management
in servicing the Building.
31
EXHIBIT D
THE CONCOURSE
BUILDING STANDARD MATERIALS
---------------------------
NOTE:
References made herein to ratios of certain improvements "per square
foot" shall be interpreted as meaning "per square foot of rentable
area."
LANDLORD SHALL PROVIDE TO THE PREMISES THE FOLLOWING:
A. FLOORING: Carpet to Building Standard" or Building Standard tile.
B. BLINDS: To Building Standards (horizontal mini-blinds).
C. OFFICE PARTITIONS: Landlord will provide the Premises with eight foot (8')
high Building Standard partitions to a maximum of one (1) linear foot of
partition per each twelve (12) square feet of space. Partitioning will be
constructed of 2-1/2 inch steel studs, 24 inches on center; 1/2 inch sheet
rock on each side, taped, speckled and painted with two costs of paint.
All Building Standard partitions shall be insulated.
D. INTERIOR DOORS: To a maximum of one door per each two hundred fifty (250)
square feet of space, to be equipped with Building Standard hardware and
finish. Building Standard interior oak doors shall be 7'0" x 3'0" with a
solid core.
E. SUITE ENTRY DOORS: One suite entry door is provided for each five thousand
(5,000) square feet of space, to be equipped with Building Standard
hardware and finish. Building Standard suite entry doors are oak, full
height, 7'10" x 3'0" with a solid core. Hardware for suite door shall
include mortise lock with lever handle, door close and ball bearing
hinges.
F. CEILINGS: Building Standard 2'x 2' regular acoustical tile in suspended
grid.
G. LIGHTING: Fluorescent parabolic light fixtures to a maximum of one fixture
per eighty (80) square feet of space.
H. LIGHT SWITCHES: Building Standard single-pole, single-throw to a maximum
of one (l) switch for each 200 square feet.
I. ELECTRICAL POWER FACILITIES: Power outlets (standard duplex convenience
receptacles) to a maximum ratio of one outlet per one hundred fifty (150)
square feet will be mounted on partitions as may be appropriate. Dedicated
circuits will be provided at Tenant's expense.
J. TELEPHONE FACILITIES: Standard unwired telephone outlets, SUITABLE for
standard telephone instruments, to a maximum of one (1) outlet per two
hundred (200) square feet will be mounted on partitions as may be
appropriate. Conduit can be provided by Landlord at Tenant's expense.
K. SPRINKLER HEADS: Landlord will provide a sprinkler fire protection system
in the Building including a maximum of one (1) sprinkler head per one
hundred fifty (150) square feet. Additional sprinkler heads and
relocations or additions to sprinkler heads due to Tenant change orders
made subsequent
L. WALL FINISH: Painted to Building Standard.
M. SIGNAGE: Building Standard door sign.
32
N. ARCHITECTURAL SERVICES: Consultation with Landlord's architect and
preparation of Tenant's plans for all Building Standard items at
Landlord's expense.
O. GENERAL: All of the items and finishes above listed in this "Building
Standard Materials" sheet to be Supplied by Landlord will be to the
Building Standard "specifications, color and quality; no credits will be
allowed for any unused portion thereof. Designs of the basic building
risers for the mechanical and electrical systems is such that Tenant's
requirements for additional power, additional lighting, and various
mechanical facilities can be made available at Tenant's expense prior to
construction by arrangement with Landlord. The costs of modifications and
changes from Building Standard for any item shall include the cost of
architectural and engineering design. Any contractors and/or
subcontractors engaged by Tenant shall comply with all REASONABLE
regulations established by Landlord and General Contractor to promote
safety and quality of construction and much contractors "hall coordinate
their efforts to ensure timely completion of all work. All design,
construction and installation shall conform to the requirements of
applicable Building, Plumbing and Electrical Codes and the requirements of
any authority having jurisdiction over or with respect to such work.
For purposes of measuring Tenant's linear footage of partitioning,
exterior building walls will not be included. Demising partitioning
separating adjacent tenants will be calculated at fifty percent of the
total amount. Tenant's portion of corridor partitioning excluding interior
core walls (i.e., elevator shafts, electric and telephone closets and
restroom facilities), will be included in total linear measurement.
P. If Landlord shall be unable to give possession of the Premises on the date
of commencement of the term hereof as a result of the delivery and/or
construction of any nonrelated tenant special items, any delay in
completing the Premises shall not in any manner affect the commencement
date of this Lease or the Tenant's liability for the payment of rent from
such commencement date, and under such circumstances Landlord agrees to
make the Premises ready for Tenant's occupancy as soon as delivery and
construction conditions within the Landlord's control will allow.
33
INSERT GRAPHIC OF Architect's FLOOR PLAN DRAWING FOR 3rd FLOOR
34
INSERT GRAPHIC OF Architect's FLOOR PLAN DRAWING FOR SUITE 360
