OFFICE LEASE

Exhibit 10.8

 

OFFICE LEASE

 

300 D THIRD STREET, S.W.

 

WASHINGTON, D.C.

 

Between

 

Washington Design Center L.L.C.

 

Landlord

 

and

 

SPACEHAB, Incorporated

 

Tenant

 

December 16, 1998

 

TABLE OF CONTENTS

 

 

-i-

 

-ii-

 

 

-iii-

DEED OF LEASE

 

THIS DEED OF LEASE (the “Lease”) made as of December 16, 1998, between WASHINGTON DESIGN CENTER L.L.C., a Delaware limited liability company (“Landlord”), and SPACEHAB, INCORPORATED, a Washington corporation (“Tenant”).

 

In consideration of the mutual promises set forth below, the parties agree as follows:

 

ARTICLE I

 

Premises; Landlord’s Rights

 

1.01 Premises . Subject to the terms and conditions hereof, Landlord hereby leases to Tenant and Tenant hereby leases from Landlord Suite 814, containing approximately 15,499 rentable square feet as indicated on the floor plan attached hereto as Exhibit A-l (the “Premises”), of the building constructed on the land identified in the legal description attached hereto as Exhibit A-2 (the “Land”), known by street address as 300 D Street, S.W., Washington, D.C. (the “Building”). The “Property” consists of the Land and the Building, together with all present and future easements, additions, expansions, improvements and other rights appurtenant thereto. In addition to the exclusive right to use and occupy the Premises subject to the terms hereof, Tenant shall, subject to the terms hereof, have nonexclusive access to such portions of the Property which are designated by Landlord as common areas and which are reasonably required for the access to and use of the Premises ( e.g. , main lobby entrances, common elevators, and the corridors, elevator lobby and restrooms on the floor on which the Premises is located). Tenant shall have no other rights to any portion of the Property other than as expressly set forth herein. Landlord and Tenant agree that the rentable area of the Premises set forth above shall be conclusive for all purposes of this Lease.

 

1.02 Landlord’s Rights . Landlord retains the exclusive right to use or modify in any manner whatsoever all Property other than the Premises located outside of the interior walls, ceiling and floor of the Premises, Building systems, and structural parts of the Building. For example, Landlord may: (1) change the name or the street address of the Building; (2) install or replace any signs located outside the Premises; (3) regulate window treatments, lighting fixtures and similar items visible from the common areas or exterior of the Building; (4) regulate the furnishing of services [including utilities and telephone (but not including the telephone equipment within Tenant’s Premises or the servicer used by Tenant provided that such servicer shall have no right to install equipment or lines of any type in the Building except within the Premises) at commercially reasonable rates] to the Building or any occupant thereof, (5) grant any person the exclusive right to conduct any business or render any service in the Building, provided that such exclusive right shall not operate to exclude Tenant from any use expressly permitted herein; and (6) regulate the movement of individuals and property into and throughout the Building outside the Premises, provided that the exercise of such rights does not unreasonably limit access to the Premises or Tenant’s right to conduct its business and operate the Premises in its discretion (subject to the other terms of this Lease). Landlord also retains the right to demolish that portion of the Building which does not contain the Premises and to erect new improvements on the Land, so long as such demolition and construction does not interfere with and interrupt Tenant’s use of the Premises; provided that, Landlord shall not demolish the restrooms on the floor on which the Premises are located, the existing means of access to the Premises, or any systems

 

1

which provide HVAC, electricity, plumbing or other services to the Premises, unless Landlord makes arrangements for substitute facilities or services for the same.

 

1.03 Roof-Top-Rights . Provided Tenant first executes and delivers to Landlord the Licence Agreement attached hereto as Exhibit I, Tenant shall have the right to utilize a portion of the roof of the Building for purposes of installing and operating one or more satellite dishes or antenna, subject to and in accordance with the terms of said Exhibit I.

 

ARTICLE II

 

Term; Commencement Date

 

2.01 Term . The initial term of the Lease (the “Initial Term”) shall commence upon the date of this Lease (the “Commencement Date”) and shall end at 11:59 p.m. on the day preceding the ninth (9th) anniversary of the Rent Commencement Date defined herein or any earlier date on which this Lease is terminated (the “Expiration Date”). The Initial Term, together which the Renewal Term (if any) is referred to herein as the “Term”.

 

2.02 Commencement Date . Landlord shall deliver all available portions of the Premises to Tenant upon the execution hereof, and shall use reasonable efforts to deliver the remainder of the Premises on or before December 28, 1998. If Landlord fails to tender possession of the entire Premises to Tenant by December 28, 1998, Landlord shall not be subject to liability, nor shall this Lease be void or voidable in whole or part, but in such event the Tenant shall be entitled to one (1) additional day of rent abatement with regard to the Premises for each day of delay in the tender of the Premises or any portion thereof nor tendered by December 28, 1998 which is not due to the acts or omissions of Tenant or Tenant’s agents, employees or contractors. The Premises shall be provided to Tenant in an “as is” condition pursuant to Section 7.01. Upon delivery of the remainder of the Premises, Tenant shall execute and deliver to Landlord a Declaration as to Date of Delivery and Acceptance of Premises, substantially in the form of Exhibit C attached hereto, confirming the Commencement Date and delivery of the entire Premises.

 

2.03 Commencement of Work . Tenant shall be permitted, subject to the terms hereof, to commence construction of the Tenant Work (as herein defined) and installation of telephones, computers, fixtures, furnitures, etc., in the Premises upon delivery thereof.

 

2.04 Tenant Allowance . Landlord will provide Tenant with an allowance (the “Tenant Allowance”) of up to Three Hundred Nine Thousand Nine Hundred Eighty Dollars ($309,980.00) for any construction, architectural, design, MEP and cabling costs incurred in connection with the Tenant Work. Landlord will reimburse Tenant for such costs incurred by the Tenant (not to exceed the amount of the Tenant Allowance) upon completion of Tenant Work and Tenant providing Landlord copies of paid bills supporting the amount of Tenant Allowance requested and appropriate lien waivers and releases of liens. After final completion of the Tenant Work and full payment of all costs incurred in connection therewith, if directed by Tenant, any unused Tenant Allowance shall be applied to Tenant’s rent obligations under this Lease next due after Tenant provides written notice to Landlord to so apply the Tenant Allowance or remaining portion thereof.

 

2.05 Renewal Option . Subject to the terms and conditions hereof, Tenant is hereby granted one (1) option (the “Renewal Option”) to extend the Term for an additional period of five (5) years (the “Renewal Term”), to commence at the expiration of the Initial Term provided Tenant notifies

 

2

Landlord in writing of its intent to exercise the Renewal Option a minimum of nine (9) months prior to the Expiration Date, and further provided that if Tenant is in default on the date of giving such notice, said notice shall be totally ineffective, or if Tenant is in default beyond the applicable notice and cure period(s) (if any) pursuant to Section 18.02 on the last day of the Initial Term, at Landlord’s option the Renewal Term shall not commence and this Lease shall terminate at the end of the Initial Term. It is mutually agreed that all provisions of the Lease, unless otherwise provided, will remain in full force and effect for the Renewal Term (including the pass through of increases in Operating Expenses and Real Estate Taxes which shall continue uninterrupted) and further provided that Base Rent shall be the prevailing fair rental value of the Premises as determined in accordance with this Section 2.05 at the time the Renewal Term is to commence. Landlord shall notify Tenant of its determination of fair rental value within thirty (30) days after Tenant exercises its Renewal Option. If Tenant does not agree with Landlord’s determination of fair rental value, Tenant shall advise Landlord and each party shall designate in writing, within ten (10) days after the expiration of the aforementioned thirty (30) day period, an MAI or similarly accredited appraiser having at least 10 years experience in the appraisal of commercial real estate in the Metropolitan Washington, D.C. area, for the purpose of determining fair rental value. The appraiser may not be affiliated in any respect with either Landlord or Tenant or their respective affiliates. Within fifteen (15) days after the designation of the appraisers, the two appraisers so designated shall designate a third appraiser of the same qualifications. The appraisers so designated, shall within forty-five (45) days after the date the third appraiser is designated, determine the fair rental value of the Premises, taking into consideration all relevant factors (including, but not limited to, that the Tax Base Year and the Operating Expense Base Year are not being updated). If the three appraisers are unable to agree upon the fair rental value, then the fair rental value of the Premises shall be the average of the two closest appraisals.

 

ARTICLE III

 

Use; Legal Requirements

 

3.01 Use . The Premises shall be used solely for general office purposes and not in violation of any Legal Requirements (as defined in Section 3.02 hereof). Tenant shall not carry on or permit any activities which might: (1) invalidate or increase the costs of any insurance coverages carried with respect to the Building; (2) involve the storage, use or disposal of medical or hazardous wastes or substances or the creation of an environmental hazard; or (3) impair or interfere with (i) the structure of the Building or the operation of Building systems, (ii) the character, reputation or appearance of the Building as a first-class office building, (iii) the furnishing of services (including utilities and telephone) to any portion of the Building, or (iv) the enjoyment by other occupants of the Building of the benefits of such occupancy (for example, free of noise, odors or vibration emanating from the Premises). The Premises shall not be used for the purposes of so-called “office suites,” schools, governmental agencies, employment agencies, medical treatment facilities, or any commercial or retail activities (other than general office purposes as set forth above). Tenant shall at no expense to Landlord comply with all Legal Requirements imposing any duty on Tenant or, to the extent responsibility for the action required by such Legal Requirement is allocated to Tenant hereunder with respect to the Premises and the use or occupation thereof by Tenant.

 

3.02 Legal Requirements . “Legal Requirements” means: (1) all laws, statutes, ordinances, rules, regulations, directives and orders of federal, state, county or municipal authorities, whether now or hereafter in effect, which may be applicable to any portion of the Property, the use or operation thereof, or any interest therein; and (2) all requirements, obligations and conditions of all instruments of record (as described on Exhibit K attached hereto and made a part hereof) pertaining to any portion of

 

3

the Property, the use or operation thereof, or any interest therein, now or hereafter of record; provided that, “Legal Requirements” shall exclude any affirmative obligations imposed by any instrument placed of record after the date hereof which exceed the Tenant’s obligations hereunder or which conflict with Tenant’s rights hereunder.

 

ARTICLE IV

 

Base Rent; Additional Rent

 

4.01 Rent Generally . Each reference herein to “rent” shall, unless otherwise specified, mean the aggregate amount of “Base Rent” and “additional rent” payable at any time or from time to time hereunder. Each item of rent shall accrue continuously from the Rent Commencement Date until the Expiration Date, and Tenant’s obligation to pay the same shall survive termination of Tenant’s right of possession to the Premises and the end of the Term.

 

4.02 Base Rent .

 

(a) From December 28, 1998 (the “Rent Commencement Date”) and during each of the Lease Years (as defined below), the “Base Rent” shall be Four Hundred Sixty-eight Thousand Eight Hundred Forty-four and 75/100 Dollars ($468,844.75) annually (the annual Base Rent being the product of 15,499 rentable square feet times $30.25 per rentable square foot), payable by Tenant, without demand therefor, in advance on the first day of each calendar month in equal installments of Thirty-Nine Thousand Seventy and 40/100 Dollars ($39,070.40); provided that the first installment of Base Rent shall be due upon the execution of this Lease. Commencing on the first day of the sixth Lease Year, Base Rent shall increase by $1.00 per square foot above the then escalated amount of Base Rent. Notwithstanding the provisions of this subparagraph (a) provided Tenant is not in default hereunder, Base Rent shall abate for the ninety (90) day period commencing on the Rent Commencement Date.

 

(b) Commencing with the first day of the second Lease Year (as defined below) and the first day of each Lease Year thereafter, with the exception of the sixth Lease Year, Base Rent shall increase by an amount equal to 2% of the Base Rent payable for the immediately preceding Lease Year, said increase to be payable in equal monthly installments as aforesaid. The Base Rent as so adjusted shall be the new Base Rent.

 

(c) “Lease Year” shall mean the twelve-month period beginning on the first day of a calendar month occurring on or immediately after the Rent Commencement Date, and each twelve-month period thereafter beginning on the anniversary of such first day. If the Commencement Date is other than the first day of a calendar month or this Lease terminates other than on the last day of a calendar month, the Base Rent for each such partial calendar month shall be prorated on the basis of 1/365 of the then current annual Base Rent.

 

4.03 Additional Rent . All amounts, other than the Base Rent, payable by Tenant hereunder or under any other agreement between Landlord and Tenant relating to the Premises or Tenant’s use or occupancy thereof shall be deemed to be “additional rent.” Each item of additional rent shall be payable immediately upon Landlord’s demand, unless otherwise expressly provided for herein. Landlord’s failure to make demand upon Tenant during the Term for any item of additional rent (including rent adjustments provided for in Article V hereof) shall not operate as a waiver of Landlord’s right to demand or Tenant’s obligation to pay such additional rent, so long as Landlord makes such demand

 

4

within two (2) years after the date such amounts were originally due in accordance with the terms hereof. The determination of any item of additional rent shall result in no decrease in the Base Rent. Whenever an item of additional rent is to be determined based upon the amount of Base Rent, such amount shall be determined pursuant to Section 4.02 hereof, with no reduction for credits, abatements or concessions.

 

4.04 Rent Payments; No Waiver . Tenant shall pay all rents in lawful money of the United States by good check (subject to collection) drawn to Landlord’s order on a national bank, and delivered to Landlord, c/o Merchandise Mart Properties, Inc., 222 Merchandise Mart Plaza, Room 470, Chicago, Illinois 60654. Landlord’s acceptance of rent with the knowledge of an existing default hereunder shall not constitute a waiver thereof. Each rent payment shall be on account of rents longest past due, and Landlord’s acceptance of less than the full amount of rent then due shall not constitute a waiver of any unpaid rent. No writing accompanying any check or payment of rent shall constitute an accord and satisfaction, and Landlord may accept and endorse such check or payment without limiting Landlord’s right to recover the balance of such rent or pursue any other remedy hereunder.

 

4.05 Moratorium . If by virtue of any Legal Requirement the amount of rent which Landlord may collect hereunder is limited, Tenant shall remain liable for all rent provided for hereunder and such rent shall continue to accrue. When such limitation is no longer in effect, Tenant shall promptly pay all accrued and unpaid rent upon Landlord’s demand, so long as Landlord makes such demand within two (2) years after the date such amounts were originally due in accordance with the terms hereof.

 

4.06 No Conditions . Tenant’s covenant to pay rent is independent of all other covenants and conditions, except for Landlord’s covenant of quiet enjoyment set forth in Section 13.01. Notwithstanding any other provision hereof, Tenant shall pay in full each item of rent when due without any demand (unless expressly provided for herein), deduction or set-off, except with respect to unused Tenant Allowance pursuant to Section 2.04 above and regardless of any counterclaim.

 

ARTICLE V

 

Rent Adjustments

 

5.01 Real Estate Taxes .

 

(a) In addition to the Base Rent, Tenant shall, in monthly installments pursuant to Section 5.04 hereof, pay to Landlord as additional rent an amount (the “Tax Adjustment”) equal to four and one tenth percent (4.1%), subject to adjustment as provided for below (“Tenant’s Share of Real Estate Tax Increases”), of the amount by which Real Estate Taxes (as defined below) for the then current Tax Year exceed Real Estate Taxes for the Tax Base Year. “Tax Year” shall mean the 12-month, District of Columbia tax year commencing each October 1 and ending the following September 30. “Tax Base Year” shall mean the Tax Year commencing October 1, 1998 and ending September 30, 1999. If the Tax Year changes and the effect of the change can be reasonably determined, Landlord may adjust Real Estate Taxes for the Tax Base Year to produce Tax Adjustments substantially equivalent to those which would have been calculated without a change in the Tax Year. Real Estate Taxes shall be calculated for each Tax Year, including the Tax Base Year as if the building was at least 95% occupied.

 

(b) “Real Estate Taxes” shall mean all taxes, rates and assessments, general and special, foreseen or unforeseen, of every kind and nature which Landlord shall pay or become obligated

 

5

to pay because of or in any way connected with the ownership, leasing or operation of the Property, including general real estate taxes, assessments, impositions and governmental charges (including vault fees and transit or other special district assessments) levied on or charged against the real estate or personal property used in connection with the operation of the Property, or on the right or privilege of leasing real estate or on the rentals or other receipts from the Property (or on the value of the leases thereon), or on the value of improvements made to the Property at any time for any purpose, or in any way attributable to the ownership, leasing or operation of the Property. Real Estate Taxes shall include all reassessments in connection with the sale or lease of any portion of the Property, and all fees, costs and expenses (including reasonable attorneys’ fees and expenses) that Landlord incurs contesting or attempting to reduce or limit Real Estate Taxes. The amount of any tax refunds shall be applied as a credit to Real Estate Taxes for the relevant Tax Year. If a refund is applicable to the Tax Base Year, Real Estate Taxes for the Tax Base Year shall be reduced thereby, and Tax Adjustments shall be recalculated. If the system of real estate taxation is changed or any new tax or assessment is imposed or levied on the Property in lieu of any item of Real Estate Taxes presently imposed or levied on real estate or fixtures in the District of Columbia, Real Estate Taxes shall include the new tax, assessment and levy. Real Estate Taxes shall not include any net income, inheritance or estate taxes.

 

5.02 Operating Expenses .

 

(a) In addition to the Base Rent, Tenant shall, in monthly installments pursuant to Section 5.04 hereof, pay to Landlord as additional rent an amount (the “Operating Expense Adjustment”) equal to four and one tenth percent (4.1%) (“Tenant’s Share of Operating Expense Increases”) of the amount by which Operating Expenses (as defined below) for the then current calendar year exceed Operating Expenses for the calendar year commencing the January 1, 1999 (the “Operating Expense Base Year”). Operating Expenses shall be calculated for each calendar year as if the Building was not less than 95% occupied.

 

(b) “Operating Expenses” shall mean all expenses, costs and disbursements of every kind and nature paid, incurred, or otherwise arising because of or in any way connected with the management, maintenance, servicing, repair and/or operation of the Property (including the costs of electrical service, HVAC, cleaning, employee salaries, withholding and other taxes and employee benefits, water and sewerage, landscaping, maintenance and service contracts, security systems, management fees (not to exceed four percent) equipment rental, and all other usual and customary costs of operating and maintaining a first-class office building in downtown Washington, D.C.). Operating Expenses shall not include: (1) interest payments; (2) ground rental; (3) depreciation; or (4) capital expenditures other than (i) those capital expenditures incurred to reduce Operating Expenses and (ii) those capital expenditures incurred to comply with any Legal Requirement to the extent such compliance is not required as of the date hereof. Landlord agrees to amortize the cost of any capital expenditure (together with interest thereon at nine percent) over the shorter of (i) the useful life thereof as determined under generally accepted accounting principles, or (ii) the depreciation period permitted by the Internal Revenue Code and only the portion of such amortization allocable to each year shall be included in Operating Expenses for such year.

 

5.03 Payments of Rent Adjustments . Commencing on the first day of the month immediately following a notice from Landlord setting forth the then current estimated Tax Adjustment and/or Operating Expense Adjustment (collectively, “Rent Adjustments”), as estimated by Landlord from time to time, Tenant shall pay monthly installments on account of Rent Adjustments. The amount of each such installment shall equal the aggregate unpaid balance of the then current estimated Rent Adjustments, divided by the number of months remaining in the Lease Year. If, upon the final determination of Rent Adjustments for each Lease Year, the total installments paid on account of Rent

 

6

Adjustments do not equal the total actual amount of Rent Adjustments, Tenant shall pay any balance due within thirty (30) days after receiving Landlord’s demand therefor, or, if applicable, Landlord shall credit against the next payment of Base Rent due hereunder the amount of any overpayment.

 

5.04 Audit Rights By Tenant . If Tenant disputes any Operating Expenses or Real Estate Taxes statement, Tenant must provide Landlord with specific written objections within 30 days after receiving the statement (failing which, the statement will be deemed conclusive). Within 30 days after receiving these objections, Landlord will either adjust the disputed statement in response to Tenant’s objection(s) and credit any overpayment to Tenant as stated above, or notify Tenant that it believes Tenant’s objection is without merit. If Tenant timely disputes a statement and Landlord notifies Tenant that Tenant’s objection is without merit, Tenant may — if Tenant is not then in default beyond any applicable cure period — cause a nationally recognized independent, certified public accountant (“CPA”) to audit the supporting data for the disputed statement. However, Tenant may not exercise its audit right unless the audit commences within 20 days after Landlord notifies Tenant that Tenant’s objection is without merit, nor may Tenant audit any statement more than once. The CPA must sign a confidentiality statement in form acceptable to Landlord. Each audit under this Section 5.04 must be conducted at Landlord’s property manager’s District of Columbia office. If Landlord does not agree with the audit results of the CPA Tenant selects, Landlord and Tenant will endeavor to resolve their differences (failing which, the dispute will be conclusively determined based on an independent audit by a third-party CPA selected by the parties or, failing agreement, appointed by the American Arbitration Association or any recognized successor thereto upon application by either party). The parties will make any necessary adjustments in accordance with the third-party CPA audit. Tenant must pay all costs and expenses of Tenant’s audit (including, but not limited to, reasonable copying charges). In addition, Tenant must pay the costs incurred in connection with the third-party CPA audit (including, but not limited to, reasonable copying charges) unless the amounts paid by Tenant to Landlord for the year in question exceeded the amounts to which Landlord was entitled by more than 5%, in which event Landlord will pay the costs incurred in connection with the third-party CPA audit. If the third-party CPA audit shows Tenant has underpaid Operating Expenses or Real Estate Taxes (or both), in addition to paying to Landlord the underpayment amount and bearing the third-party CPA audit costs, Tenant must reimburse Landlord upon demand for all reasonable costs, expenses and fees incurred by Landlord in connection with such dispute. Tenant has no right to withhold or reduce any performance by Tenant under the Lease pending or based upon any audit under this Section 5.04.

 

ARTICLE VI

 

Financial Reports

 

6.01 Tenant’s Financial Reports . Tenant shall deliver to Landlord as they become available, a copy of Tenant’s quarterly and annual reports.

 

ARTICLE VII

 

Condition of Premises; Duty of Care

 

7.01 Condition of the Premises . Tenant shall accept possession of the Premises in their current “as-is” condition, broom clean with all equipment in working order. In compliance with Article VIII

 

7

hereof and at no expense to Landlord, Tenant shall do such work as Tenant shall deem necessary or desirable to render the Premises suitable for Tenant’s use. Landlord shall have no obligation with respect to the alteration, remodeling or improvement of the Premises.

 

7.02 Tenant’s Duty of Care . Tenant at its expense shall take good care of and allow no damage (other than ordinary wear and tear) to the Premises, and shall keep the Premises in clean, safe and sanitary condition. Tenant shall segregate, store and dispose of trash and garbage in the manner Landlord reasonably specifies. Tenant shall promptly notify Landlord of the occurrence of any event or the existence of any condition that may adversely affect the Premises or the Building or the occupancy, use or operation thereof If the Building or the Premises are damaged by Tenant, its employees, agents, contractors, licensees or invitees (including any damage in connection with the making of an Alteration or Tenant’s surrender of the Premises), Tenant shall promptly notify Landlord and, except to the extent such damage is covered by normal and customary extended coverage fire and casualty insurance, shall pay to Landlord upon demand as additional rent all actual documented costs (including attorneys’ fees and expenses and Landlord’s customary overhead, profit and costs of general conditions) Landlord incurs for the repair and restoration of the same. Tenant shall promptly remove from all common areas in or around the Property Tenant’s property and items placed or delivered there on Tenant’s behalf.

 

ARTICLE VIII

 

Tenant’s Alterations and Equipment

 

8.01 Alterations; Equipment . Except as expressly permitted herein, Tenant shall not, without in each instance obtaining Landlord’s prior consent, make or permit any Alteration. “Alteration” shall mean any alteration, installation, removal or improvement of any nature with respect to the Premises or the Building, or any installation, removal or operation in the Premises of any equipment or machinery, except for office equipment which (1) is normally used in modern offices for general office use, and (2) does not (i) require electrical power in excess of the power requirements for office tenants of the Building (it being understood that Tenant’s connected load for lighting and outlets shall not exceed five (5) watts per square foot of the Premises); (ii) require changes to the electrical, water, plumbing, or HVAC systems, (iii) be so heavy as to create any risk of structural damage to the Building, or (iv) cause any unreasonable noise, vibration or odor to be transmitted to the structure of the Building or outside the Premises.

 

8.02 Landlord’s Consent . Landlord shall not unreasonably withhold, delay or condition its consent to the making of any Alteration. Landlord shall not be obligated to give its consent, if Landlord believes in good faith that there is a significant risk that the Alteration (x) would not be made in a manner comparable in workmanship and quality with the reputation and character of the Building as a first-class office building, or (y) would materially adversely affect (i) the structure or the appearance of the Building or the operation of Building systems, (ii) Landlord’s ability to rent the Premises at the end of the Term to other tenants at then current market rates, or (iii) the enjoyment by other occupants of the Building of the benefits of such occupancy. Landlord’s consent to an Alteration, if given, shall be subject in each instance to the following conditions:

 

(1) Landlord acknowledges that it has approved Tenant’s preliminary plans for the Premises. At least ten (10) days prior to commencing work, Tenant shall submit to Landlord final plans and specifications therefor which are consistent with the preliminary plans previously approved by Landlord and sufficient to obtain a building permit therefor, together with detailed background

 

8

information, references and, with respect to contractors and subcontractors, current financial statements, about the architects, engineers, contractors and subcontractors to be utilized, and full information regarding the materials to be used, and Tenant shall promptly submit for Landlord’s approval every material change to the work, the scope of the work or the plans and/or specifications therefor. A “material charge” shall mean any change which (i) requires a building permit or permit modification, (ii) involves the Building mechanical, electrical, plumbing, HVAC or other systems, (iii) is likely to adversely affect any other tenant or occupant of the Building, or (iv) will cost in excess of Two Thousand Five Hundred Dollars ($2,500.00) to implement. The work shall be performed by persons and pursuant to plans, specifications and change orders that Landlord shall have approved (such approval not to be unreasonably withheld or delayed) and in accordance with all Legal Requirements and requirements of Landlord’s insurance carriers, and Tenant shall at no expense to Landlord insure continuous compliance with the same and, upon demand, promptly submit to Landlord satisfactory evidence of such performance (including all permits, approvals and certificates required therefor). If in connection with making any Alteration, any conflict arises for any reason whatsoever between any persons under Tenant’s direct or indirect control engaged in making the Alteration and Landlord’s contractors, subcontractors or other persons performing work for Landlord, Tenant shall take all reasonable actions necessary to eliminate such conflict.

 

(2) All architects and engineers shall continuously carry errors and omissions insurance in such reasonable amounts as Landlord may specify, and all contractors and subcontractors shall continuously carry such amounts of workers’ compensation, employer’s liability and commercial/comprehensive general liability insurance as Landlord may reasonably specify, and, upon demand, Tenant shall furnish Landlord with certificates evidencing such insurance coverages.

 

(3) Upon completion of the Alteration, Tenant shall furnish Landlord with enforceable releases of all claims and waivers of all liens executed by each contractor, subcontractor and material supplier involved in making the Alteration and paid invoices with respect to the costs thereof If in connection with the work any mechanic’s materialman’s lien is filed against any portion of the Property, Tenant shall at no expense to Landlord cause such lien to be released of record within ten (10) days after notice thereof.

 

(4) In connection with the making of the Alteration or the maintenance or repair thereof, Landlord shall have no obligation to modify, install or replace any structural component or system contained in the Building or bear any cost.

 

(5) At the time Landlord consents to any Alteration, improvements, fixtures and other property, Landlord shall advise Tenant what Alterations, improvements, fixtures and other property must be removed by Tenant before the end of the Term.

 

ARTICLE IX

 

Services

 

9.01 Business Hours . “Business Hours” shall mean 7:00 a.m. to 6:00 p.m., Monday through Friday, and 9:00 a.m. to 1:00 p.m., Saturday, except for holidays recognized by the Federal government (“Holidays”).

 

9.02 Utilities; Access . Twenty-four hours a day, seven days a week, Landlord shall provide to the Premises: (1) electricity, running water, and sewerage removal services at (i) current locations and

 

9

(ii) such usage levels as are customary in general office space; and (2) access via at least one operating elevator.

 

9.03 HVAC . During Business Hours, Landlord shall provide heating and cooling to the Premises. Upon twenty-four (24) hours prior notice, Landlord shall provide heating and cooling to the Premises outside Business Hours, with the minimum charge being based on four (4) hours usage. Landlord shall adjust overtime charges to reflect actual heating and cooling expenses. Initially, the following hourly rates will apply:

 

 

9.04 Cleaning . After Business Hours, Monday through Friday, except for Holidays, Landlord shall provide the Premises with the cleaning and janitorial services specified in Exhibit E attached hereto

 

9.05 Security . Landlord shall provide the following security services: a staffed reception/guard desk in the lobby of the Building during Business Hours.

 

9.06 Signage . Landlord intends that all tenants will be identified on the Building directory signs. Landlord shall, at its expense for the initial names designated by Tenant at the Commencement Date, provide Tenant with a pro rata number of lines on the directory in the Building lobby. Any names placed on the directory after the initial name shall be at Tenant’s expense. Landlord, at its sole cost and expense, will also provide Tenant with building standard signage on Tenant’s suite entry door.

 

9.07 Parking . Tenant may, by notice to Landlord, acquire up to fifteen (15) monthly parking contracts in the Building garage at the prevailing monthly rates in effect from time to time, subject to availability. Tenant shall abide the rules and regulations issued by the Building garage operator.

 

ARTICLE X

 

Assignment; Sublease

 

10.01 Prohibited Leasehold Transfers .

 

(a) Except as expressly permitted herein, Tenant shall not, without in each instance obtaining Landlord’s prior consent, make or permit any Leasehold Transfer. “Leasehold Transfer” shall mean, whether voluntarily or by operation of law, the assignment, transfer, subleasing or encumbering of any portion of Tenant’s rights to and interest in this Lease or the Premises, including permitting any person to use or occupy any portion of the Premises (except in connection with Tenant’s use of the Premises permitted herein). The transfer (however effected) of a “controlling ownership interest” in a person (defined to mean an ownership interest in whatever form by which the holder thereof exercises effective control over the management and policies of such person) shall be deemed to be a Leasehold Transfer if such person holds any interest in this Lease or the Premises; provided that, this sentence shall not apply to transfers of a controlling ownership interest in any corporation while the stock of such corporation is publicly traded on the New York or American Stock Exchanges or while listed in the NASDAQ National Market.

 

10

(b) Any apparent Leasehold Transfer made without Landlord’s consent shall be void. Nevertheless, without waiving any of Tenant’s obligations hereunder or the failure to obtain Landlord’s consent, Landlord may collect from any person occupying the Premises in connection with an attempted Leasehold Transfer all rent due with respect to the portion of the Premises occupied thereby, and apply the same to the satisfaction of Tenant’s obligations hereunder.

 

10.02 Landlord’s Consent .

 

(a) In seeking Landlord’s consent to a Leasehold Transfer, Tenant shall at least twenty (20) days before the anticipated effective date of the Leasehold Transfer submit: (1) the proposed terms and conditions of the Leasehold Transfer, (2) all relevant information about the proposed transferee; and (3) satisfactory evidence that the Leasehold Transfer will result in the Premises being used only as permitted pursuant to Article III hereof.

 

(b) Landlord shall not unreasonably withhold, delay or condition its consent to any Leasehold Transfer. The reasonableness of any decision by Landlord to withhold, delay or condition its consent shall be evaluated in light of all of the relevant circumstances. Landlord shall not be obligated to give its consent, if (i) any event exists which constitutes or which with the lapse of time or the giving of notice would constitute a material default hereunder, (ii) Landlord has pursuant to Section 10.03 hereof exercised its recapture right with respect to the Leasehold Transfer, (iii) the Leasehold Transfer would result in the Premises being used for a purpose prohibited hereunder, or (iv) if the Leasehold Transfer is to be effectuated during the last two (2) years of the Initial Term or the Renewal Term, the rent under the Leasehold Transfer would be less than the rental rate at which Landlord is then offering to lease comparable space in the Building. Landlord’s consent to a Leasehold Transfer, if given, shall be subject in each instance to the following conditions:

 

(1) Tenant shall remain fully and primarily liable for the performance of all of Tenant’s obligations hereunder, whenever such performance may be required. The transferee with respect to the Leasehold Transfer shall be subject to any defaults by Tenant hereunder and bound by all of the terms and conditions of this Article X. Landlord’s consent to any Leasehold Transfer shall not constitute consent to any other or subsequent Leasehold Transfer, except in each case as permitted herein.

 

(2) Within five (5) days after Tenant receives Landlord’s consent thereto and prior to the effective date of the Leasehold Transfer, Tenant shall deliver to Landlord a fully executed and acknowledged instrument in form and substance satisfactory to Landlord, providing for: (i) the Leasehold Transfer on substantially the same terms and conditions previously submitted to Landlord; (ii) the transferee’s unconditional agreement to be bound by, and to hold the Premises subject to, all of the terms and conditions hereof and, if the Leasehold Transfer involves an assignment of all or a portion of the Premises, to assume all of Tenant’s obligations hereunder with respect thereto; and (iii) an effective date of the Leasehold Transfer not later than six (6) months after the execution of such instrument. The Leasehold Transfer shall be effective only in accordance with the terms and conditions of such instrument. Landlord and Tenant may amend this Lease at any time, and Landlord may take any other action in connection herewith, and Landlord shall not be obligated to give any notice to or obtain the consent of any Leasehold Transfer transferee for any reason whatsoever. The transferee shall automatically be bound by the terms and conditions of this Lease as amended by Landlord and Tenant at any time.

 

(3) Tenant hereby assigns to Landlord the rents due from the transferee and authorizes the transferee to pay such rents directly to Landlord, at Landlord’s option, upon the

 

11

occurrence of any default by Tenant under this Lease, whereupon Landlord may, without waiving any of Tenant’s obligations hereunder, collect and apply such rents to the satisfaction of such obligations.

 

(4) Tenant shall promptly reimburse Landlord upon demand for all reasonable costs (including reasonable attorneys’ fees and expenses) Landlord incurs in connection with the Leasehold Transfer and the transferee thereunder.

 

(5) Tenant shall promptly pay Landlord as additional rent fifty percent (50%) of all of the consideration for the Leasehold Transfer. “Consideration” shall mean (i) all rents in excess of the rents payable by Tenant hereunder with respect to the space subject to the Leasehold Transfer, and all profits in connection with the Leasehold Transfer (including, but not limited to, all proceeds from the sale or rental of Tenant’s fixtures, leasehold improvements, equipment, furniture, furnishings and other personal property, to the extent the price or rent paid therefor exceeds the fair market value or the fair rental value, as the case may be, of the fixtures, improvements, equipment, furniture, furnishings or other personal property so sold or rented), less (ii) all reasonable out-of-pocket expenses Tenant incurs in effecting the Leasehold Transfer. Upon demand, Tenant’s chief financial officer shall promptly certify to Landlord accountings setting forth the character, amount and date of receipt or expenditure of each item of consideration and expense, and submit such supporting documentation as Landlord may reasonably request.

 

10.03 Recapture . Landlord may, with respect to each Leasehold Transfer for which Landlord’s consent is required, elect to: (1) become Tenant’s subtenant with respect to the space subject to the proposed Leasehold Transfer, or (2) terminate Tenant’s leasehold interest in such space, in either case effective thirty (30) days after Landlord notifies Tenant of Landlord’s exercise of its recapture right with respect to the Leasehold Transfer. With respect to a Leasehold Transfer for which Tenant has requested Landlord’s consent, Landlord shall so notify Tenant within twenty (20) days after receiving Tenant’s request, or Landlord shall be deemed to have declined to exercise its recapture right with respect to such Leasehold Transfer. If Landlord declines to exercise its recapture right with respect to a Leasehold Transfer, Landlord’s consent to the Leasehold Transfer shall nonetheless be required. If Landlord exercises its recapture right with respect to a Leasehold Transfer: (i) Landlord may at Tenant’s expense reconfigure the Premises to provide public access to the recaptured space; and (ii) Tenant shall promptly execute and deliver to Landlord (x) if Landlord elects to sublet the space, a sublease in a form reasonably satisfactory to Landlord and providing that Landlord shall be required during the term of the sublease to abate all rents accruing with respect to the space, or (y) if Landlord elects to terminate Tenant’s leasehold interest in the space, an amendment hereto in a form reasonably satisfactory to Landlord and providing for such termination. Landlord may, without incurring any liability to Tenant, lease or sublet the recaptured space to any person (including any person which Tenant proposed as a transferee under a Leasehold Transfer).

 

ARTICLE XI

 

Right of First Offer

 

11.01 Right of First Offer . Provided no Event of Default has occurred under this Lease, and subject to the right of Landlord to renew the lease of any tenant currently leasing space on the eighth (8 ^th ) floor on the date of this Lease, Tenant shall have the right of first offering to lease contiguous office space located on the eighth (8 ^th ) floor of the Building (the “Additional Premises”). Such right shall arise whenever, during the Term the Landlord wishes to lease the Additional Premises. Landlord shall provide Tenant with not less than thirty (30) days written notice (“Landlord’s Notice”) setting forth the date the Additional Premises will be

 

12

available. Tenant shall exercise its right of first offering (if at all) by written notice (“Tenant’s Notice”), delivered to Landlord not later than twenty (20) days after delivery of Landlord’s Notice to Tenant, and agreeing to lease the Additional Premises commencing on the date the Additional Premises are available as set forth in Landlord’s Notice. In the event the Tenant’s Notice is not timely given, Tenant shall be deemed to have waived its right of first offering and Landlord may proceed to lease the Additional Premises to third parties. Prior to the commencement of the term for the Additional Premises, Tenant agrees to execute an amendment to this Lease incorporating the Additional Premises into this Lease as part of the Premises on the following terms and conditions:

 

(a) If the Tenant exercises its right of first offer for the Additional Premises during the first three Lease Years the terms and conditions applicable to the Additional Premises shall be the same terms and conditions as the terms of this Lease including rental rates. The term for the Additional Premises will be co-terminous with the Term under this Lease. The Tenant allowance shall be prorated based on the number of months remaining in the first three Lease Years.

 

(b) If the Tenant takes the Additional Premises during the last six Lease Years, the rental rate, Tenant allowance and other terms applicable to the Additional Premises (other than Lease Term, which will be co-terminous with the Lease Term for the Premises) will be subject to the then current market terms and conditions for similar space within the Building (taking into consideration the applicable Lease Term).

 

ARTICLE XII

 

Surrender; Holdover

 

12.01 Surrender of the Premises .

 

(a) At the end of the Term Tenant shall deliver to Landlord exclusive possession of the Premises, broom clean and in “as is” condition on the Commencement Date, ordinary wear and tear excepted; provided, however, that Tenant shall remove from the Premises and the Building all property specified in subsection (b) below. The delivery of keys to the Premises to anyone (including delivery of the keys to Landlord so that Landlord may sublet the Premises for Tenant) shall not terminate this Lease or effect a surrender of the Premises.

 

(b) Tenant may not, without Landlord’s consent, remove any Alterations, other improvements to the Premises or fixtures (including all such improvements and fixtures existing on the Commencement Date), which cannot be removed without damage to the Premises or the Building. Tenant shall, at no expense to Landlord and subject to Article VIII hereof, remove any Alteration, improvements, fixtures and other property which, pursuant to Section 8.02(5) Landlord has advised Tenant must be removed before the end of the Term. Where furnished by Tenant or at its expense, all moveable furnishings and trade fixtures shall remain Tenant’s property, which Tenant may at no expense to Landlord remove before the end of the Term. Alterations, improvements, fixtures and other property, which Tenant is required pursuant to Section 8.02(5) or permitted to remove from the Premises and which remain on the Premises after the end of the Term, shall be deemed to be abandoned, and Landlord may, at Tenant’s expense and without incurring any liability (as a bailee or otherwise) to Tenant, remove and dispose of the same in any fashion.

 

13

(c) Upon demand, Tenant shall promptly pay to Landlord as additional rent all reasonable direct costs (including reasonable attorneys’ fees and expenses), Landlord incurs in connection with the removal of property from the Premises and the Building and the disposal thereof pursuant hereto, and the repair of any damage to the Premises or the Building occasioned thereby.

 

12.02 Holdover . If Tenant fails to surrender the Premises at the end of the Term, at Landlord’s option the Tenant shall become a month-to-month tenant subject to all of the terms and conditions hereof, except that Tenant shall on account of such tenancy pay in advance on the first day of each calendar month, without demand therefor, a monthly rental equal to the greater of (i) two hundred percent (200%) of the aggregate amount of Base Rent plus Rent Adjustments in effect immediately preceding the end of the Lease Term, or (ii) the fair market rental value of the Premises, prorated on a monthly basis; provided that, notwithstanding the foregoing, during the first (1st) ninety (90) days of any such monthly tenancy, Tenant shall pay a monthly rental equal to the greater of (i) one hundred fifty percent (150%) of the aggregate amount of Base Rent plus Rent Adjustments in effect immediately preceding the end of the Lease Term, or (ii) the fair market rental value of the Premises. Such tenancy may be terminated by either party upon thirty (30) days prior notice. During such tenancy Landlord may with respect to any default hereunder exercise all rights and remedies provided for herein. Notwithstanding the foregoing, any time prior to Landlord’s acceptance of rent from Tenant as a monthly tenant hereunder, Landlord, at its option, may forthwith re-enter and take possession of the Premises by any means permitted by law, TENANT HEREBY WAIVING ANY NOTICE TO QUIT; provided, however, that (i) Tenant shall pay Landlord as damages (but not as rent) the greater of the fair market value rent for the Premises or two (2) times (1.5 times, during the first 90 days of such holdover) the Base Rent plus all Additional Rent payable for the last month of the Term, for each month or portion thereof that Tenant remains in possession following the Expiration Date, and (ii) Tenant shall defend, indemnify and hold Landlord harmless from and against any and all claims, losses, liabilities or damages resulting from Tenant’s failure to surrender possession of the Premises on the Expiration Date (including, but not limited to, claims made by any succeeding tenant).

 

ARTICLE XIII

 

Quiet Enjoyment; Subordination

 

13.01 Covenant of Quiet Enjoyment . Subject to all of the terms and conditions of this Lease, Tenant’s interest in this Lease and possession of the Premises shall not be terminated during the Term by Landlord or any person claiming an interest in the Premises, the Building or the Land through Landlord. Neither Landlord’s inability to perform Landlord’s obligations hereunder (including the furnishing of utilities and HVAC) by virtue of any circumstance beyond Landlord’s reasonable control, nor the taking of any action in or around the Premises permitted hereunder, shall constitute an actual or constructive eviction of Tenant in whole or in part or provide any grounds (including an interruption or reduction in Tenant’s business) for an abatement of rent or for Landlord’s liability; provided that, notwithstanding the foregoing, if Landlord fails to provide HVAC or electric service to the Premises for a period in excess of five (5) consecutive business days, Landlord agrees to thereafter abate the Rent payable hereunder for so long as Tenant cannot and in fact does not use the Premises as a result of such failure.

 

14

13.02 Subordination .

 

(a) This Lease shall be automatically subordinate to and bound by each underlying lease, deed of trust and mortgage (including all advances made thereunder at any time), and all amendments thereto and renewals, extensions, modifications, consolidations, replacements and transfers thereof (whether by sale, assignment, foreclosure or otherwise), now or hereafter affecting any portion of the Land, the Building or the Premises (in each case, a “Superior Instrument”). Tenant may not terminate this Lease, and this Lease shall remain in effect upon any sale or assignment of, or foreclosure upon, any portion of the Property pursuant to any Superior Instrument, or upon the termination of any Superior Instrument. Notwithstanding any other provision hereof, no holder of a Superior Instrument shall be liable for any act, omission or default of Landlord, subject to any offsets, claims or defenses which Tenant may have against Landlord, bound by any rent that Tenant paid to Landlord more than one (1) month in advance, or bound by any amendment, waiver or termination of this Lease, unless consented to by such holder in writing. If by virtue of Landlord’s default Tenant may obtain an abatement of rent, remedy such default or terminate this Lease, Tenant shall not exercise such right(s) unless Tenant first notifies each holder of a Superior Instrument (which notice may be given simultaneously with any notice Tenant gives to Landlord), which has furnished Tenant with its address, and such holder fails to initiate promptly and use reasonable efforts to cure such Landlord’s default. If in connection with any financing of any portion of the Property or improvements thereto the holder of a Superior Instrument requires modifications to this Lease, Tenant shall not unreasonably withhold, delay or condition Tenant’s consent to such modifications, so long as such modifications do not increase the rents payable by Tenant hereunder, reduce or extend the Term, reduce or increase the area of the Premises, or materially adversely affect Tenant’s rights and obligations hereunder. The holder of a Superior Instrument may subordinate such Instrument to this Lease at any time and Tenant hereby consents to such subordination. Upon request Tenant shall execute, acknowledge and deliver in recordable form such instruments effecting such subordination.

 

(b) Upon request of the holder or beneficiary of any Superior Instrument (each a “Lender”), Tenant shall agree in writing that no action taken by such holder or beneficiary to enforce said Superior Instrument shall terminate this Lease or invalidate or constitute a breach of any of the provisions hereof and Tenant will attorn to such Lender, or to any purchaser of the Building or Property at any foreclosure sale or sale in lieu of foreclosure, for the balance of the Term of this Lease and on all other terms and conditions herein set forth. Tenant, by entering into this Lease, covenants and agrees that (a) upon the written direction of Lender it shall pay all rents arising under this Lease as directed by such Lender, and (b) in the event such Lender enforces its rights under the Superior Instrument due to a default by Landlord this Lease is not extinguished by a foreclosure of the Superior Instrument, and Tenant will, upon request of any person succeeding to the interest of Landlord in the Property (“successor in interest”) as the result of said enforcement, automatically attorn to such successor in interest, without any change in terms or other provisions of this Lease; provided, however, that said successor in interest shall not be: (i) bound by any payment of rent or additional rent for more than one month in advance, except payments in the nature of security (but only to the extent such payments have been delivered to such successor in interest); (ii) bound by any modifications to the Lease (including, but not limited to, any agreement providing for early termination or cancellation of the Lease) made without any requisite consent of the Lender or any such successor in interest; (iii) liable for damages for any act or omission of any prior landlord (including, but not limited to, Landlord); or (iv) subject to any offsets or defenses which Tenant might have against any prior landlord (including, but not limited to, Landlord). Notwithstanding the foregoing, Tenant shall retain any rights it may have to proceed against the original Landlord.

 

15

13.03 Subordination, Attornment and Non-Disturbance Agreement; Estoppel Certificate . Within ten (10) days after demand therefor by Landlord, the holder or beneficiary of any Superior Instrument or any of their successors in interest, Tenant shall execute, acknowledge and deliver in recordable form: (1) a Subordination, Attornment and Non-Disturbance Agreement and/or (2) an estoppel certificate substantially in the form of Exhibit G attached hereto.

 

ARTICLE XIV

 

Fire or Casualty; Condemnation

 

14.01 Fire or Casualty .

 

(a) The occurrence of any fire or other casualty shall constitute no basis for the termination of this Lease or any abatement of rent, except as expressly provided for herein. If the Building is damaged by fire or other casualty (whether or not the Premises are damaged) and if Landlord obtains a reasonable professional estimate that the cost of restoring the Building would exceed fifty percent (50%) of the full insurable value of the Building, Landlord may, by notice to Tenant within sixty (60) days after such fire or other casualty, terminate this Lease without incurring any liability to Tenant. If Landlord fails so to notify Tenant, Landlord shall use reasonable efforts to repair the Building (including the restoration of the demising walls of the Premises and Building services to the outside perimeter of the Premises) with reasonable dispatch, allowing for the adjustment and settlement of insurance claims, the preparation of plans and specifications, the obtaining of governmental approvals and certificates, the obtaining of contractors and laborers and any other delay. So long as Landlord restores the Building so it is suitable for substantially the same uses, Landlord shall not be obligated to duplicate the original construction or design of the Building. Landlord shall not be obligated to repair, restore or replace: (1) any property within the Premises; (2) any damage that occurs during the last year of the Term (as extended, if at all, pursuant to the exercise of any Renewal Option); or (3) any damage for the repair of which insurance proceeds are not available. Tenant shall cooperate fully with all repairs made to the Building (including removing Tenant’s moveable property and trade fixtures from the Premises as soon as practicable to clear the way therefor).

 

(b) Rents hereunder shall be abated during the period and to the extent that a material portion of the Premises is rendered untenantable because of a fire or other casualty. If more than thirty percent (30%) of the Premises is rendered untenantable by fire or other casualty and Landlord cannot, given Tenant’s full cooperation, substantially complete such repairs so that the Premises are rendered substantially tenan