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5/21/99 Final EXHIBIT 10.25
DULLES PARK TECHNOLOGY CENTER
Herndon, Virginia
STANDARD OFFICE
LEASE AGREEMENT
By and Between
KDC-Dulles Tech, LLC
as Landlord
and
NET 2000 Communications Real Estate, Inc.
as Tenant
and
NET 2000 COMMUNICATIONS, INC.
as Guarantor
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XXXXXX XXXX XXXXXXXXXX XXXXXX
Xxxxxxx, Xxxxxxxx
Lease dated May 26, 1999
REFERENCE SHEET
A. Each reference in this lease to any of the following subjects shall
be construed to incorporate the data stated for that subject in this Reference
Sheet:
LANDLORD: KDC-Dulles Tech, LLC, a Delaware limited liability company
LANDLORD'S CONSTRUCTION REPRESENTATIVE: Xxxx X. Xxxxx, Xx.
TENANT: Net 2000 Communications Real Estate, Inc., a Delaware corporation
TENANT'S ORIGINAL ADDRESS: 0000 Xxx Xxxx Xxxx
Xxxxxxx, XX 00000
TENANT'S CONSTRUCTION REPRESENTATIVE: XXXXX XXXXXXX
TENANT SIGNAGE SUBMISSION DATE: May 18, 1999
TENANT BASE BUILDING MODIFICATION DELIVERY DATE: May 1, 1999
TENANT PLAN DELIVERY DATE: June 1, 1999
ENGINEERING PLAN DELIVERY DATE: May 15, 1999
RENT COMMENCEMENT DATE Variable; see Exhibit F
LEASED PREMISES: See Exhibit B
TERM: See Section 2.1
ANNUAL FIXED RENT: See Section 3.1
RENTABLE FLOOR AREA OF TENANT'S PREMISES: 126,276 s.f.
TOTAL RENTABLE OFFICE FLOOR AREA OF BUILDING: 182,527 s.f.
PERMITTED USES: See Section 5.1
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LEASE INDEX
PAGE
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Reference Sheet ...........................................................i
ARTICLE I - LEASED PREMISES
1.1 Demise of Leased Premises.........................................1
1.2 Condition of Leased Premises......................................1
1.3 Landlord's and Tenant's Work......................................3
1.4 General Provisions applicable to Construction.....................4
1.5 Tenant Allowance .................................................4
1.6 Real Estate Tax in Leasehold Improvements.........................5
1.7 Landlord's Release ...............................................5
1.8 Option to Expand .................................................6
ARTICLE II - TERM
2.1 Term ............................................................8
2.2 Delay in Occupancy ...............................................8
2.3 Early Occupancy ..................................................8
2.4 Option to Renew Term..............................................9
ARTICLE III - RENT
3.1 Base Rent .......................................................10
3.2 Additional Rent .................................................11
3.3 Late Charges ....................................................11
3.4 Proportionate Share..............................................11
3.5 Real Property Taxes..............................................11
3.6 Insurance .......................................................13
3.7 Common Expenses .................................................13
3.8 Verification and Operating Statement.............................15
3.9 Interest on Past Due Amounts.....................................16
ARTICLE IV - COMMON AREAS
4.1 Common Areas ....................................................16
4.2 Use of Common Areas..............................................16
4.3 Vehicle Parking .................................................17
4.4 Common Area Maintenance..........................................17
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ARTICLE V - USE
5.1 Use ...............................................................17
5.2 ADA .............................................................18
5.3 Storage Space......................................................19
5.4 Roof Rights........................................................19
ARTICLE VI - LETTER OF CREDIT...............................................20
ARTICLE VII - OPERATIONS: UTILITIES: SERVICES
7.1 Operation..........................................................20
7.2 Hours of Operation.................................................20
7.3 Utilities and Services.............................................21
7.4 Interruption of Services...........................................22
7.5 Electricity; Excess Usage..........................................22
7.6 No Interference....................................................23
7.7 Telecommunications.................................................23
7.8 Security; Access...................................................24
7.9 Management.........................................................24
ARTICLE VIII - REPAIRS AND MAINTENANCE
8.1 Landlord's Obligations ............................................25
8.2 Tenant's Obligations ..............................................25
ARTICLE IX - ALTERATIONS: TENANT'S PROPERTY
9.1 Alterations by Tenant..............................................25
9.2 Contractors' Insurance Requirements................................26
9.3 Tenant's Property..................................................26
ARTICLE X - HAZARDOUS MATERIALS
10.1 Use of Hazardous Materials.........................................27
10.1(a) Tenant's Obligations and Liabilities............................27
10.1(b) Definition......................................................27
10.1(c) Inspection......................................................27
10.1(d) Default.........................................................28
10.2 Landlord's Warranty................................................28
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ARTICLE XI - ASSIGNMENT AND SUBLETTING
11.1 Prohibited Transfers......................................28
11.2 Option To Terminate.......................................29
11.3 Excess Receipts...........................................29
11.4 Processing Fee ...........................................29
11.5 Customer Equipment .......................................29
11.6 Permitted Transfers.......................................29
ARTICLE XII - CASUALTY OR CONDEMNATION
12.1 Partial Damage of Leased Premises ........................30
12.2 Total or Substantial Destruction .........................30
12.3 Temporary Reduction of Rent ..............................30
12.4 Condemnation .............................................30
ARTICLE XIII - INDEMNIFICATION AND INSURANCE
13.1 Indemnification by Tenant.................................31
13.2 Tenant's Insurance........................................31
13.3 Survival of Indemnities...................................32
13.4 Waiver of Subrogation.....................................32
13.5 Landlord's Indemnification................................32
13.6 Landlord's Insurance......................................32
ARTICLE XIV - RIGHT OF ENTRY
14.1 Landlord Access...........................................33
14.2 Limitations on Access.....................................33
ARTICLE XV - PROPERTY LEFT ON THE LEASED PREMISES......................33
ARTICLE XVI - SIGNS AND ADVERTISEMENTS.................................33
ARTICLE XVII - NOTICES.................................................34
ARTICLE XVIII - MECHANIC'S LIENS.......................................35
ARTICLE XIX - SUBORDINATION: ATTORNMENT
19.1 Subordination.............................................35
19.2 Attornment................................................35
19.3 Confirming Agreement......................................36
19.4 Mortgagee Protection......................................36
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ARTICLE XX - COMPLIANCE WITH LAW AND RULES AND REGULATIONS
20.1 Compliance With Laws .....................................36
20.2 Rules and Regulations ....................................36
ARTICLE XXI - LANDLORD'S LIEN
21.1 Landlord's Lien ..........................................37
21.2 Landlord's Acknowledgement of Third Party Lien ...........37
ARTICLE XXII - ESTOPPEL CERTIFICATE....................................38
ARTICLE XXIII - HOLDING OVER...........................................38
ARTICLE XXIV - TENANT'S STATUS
24.1 Power and Authority.........................................39
24.2 Authorization...............................................39
ARTICLE XXV - DEFAULTS AND REMEDIES
25.1 Default by Tenant.........................................39
25.2 Landlord Remedies.........................................40
25.3 Landlord's Costs; Attorneys' fees.........................41
25.4 Remedies Cumulative.......................................41
25.5 Non-Waiver................................................41
ARTICLE XXVI - MISCELLANEOUS
26.1 No Partnership............................................41
26.2 No Representations by Landlord............................41
26.3 Waiver of Jury Trial......................................41
26.4 Severability Provisions...................................41
26.5 Interior Construction.....................................42
26.6 Relocation of Leased Premises.............................42
26.7 Benefits and Burdens......................................42
26.8 Landlord's Liability......................................42
26.9 Brokerage.................................................42
26.10 Recording.................................................43
26.11 Governmental Surcharge....................................43
26.12 Surrender of Premises.....................................43
26.13 Interpretation............................................43
26.14 Special Provisions........................................43
26.15 Entire Agreement..........................................43
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26.16 Force Majeure.............................................43
26.17 Choice of Law.............................................44
26.18 Submission of Lease.......................................44
26.19 Time of Essence...........................................44
26.20 Financial Statements......................................44
EXHIBITS:
Exhibit A - Legal Description
Exhibit B - Floor: Plans
Exhibit C - Base Building Definition
Exhibit D - Tenant Plan Requirements
Exhibit E - Pricing and Completing Tenant's Work
Exhibit F - Rent Commencement Dates
Exhibit G - Certification Affirming Lease Commencement Date
Exhibit H - Letter of Credit Requirements
Exhibit I - Landlord's Cleaning Services
Exhibit J - Rules & Regulations
Exhibit K - Estoppel Certificate
Exhibit L - Location of Conduit
Exhibit M - Generator Location
Exhibit N - Roof Location of Tenant Mechanical Equipment
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OFFICE LEASE
THIS LEASE, is made and entered into on this 26 day of May, 1999,
between KDC-DULLES TECH, LLC, a Delaware limited liability company,
("Landlord"), NET 2000 COMMUNICATIONS REAL ESTATE, INC., a Delaware corporation
("Tenant") and NET 2000 COMMUNICATIONS, INC. a Delaware corporation
("Guarantor").
ARTICLE I - LEASED PREMISES
1.1 DEMISE OF LEASED PREMISES. Landlord, in consideration of the
rents and of the terms and conditions hereinafter contained, does hereby lease
to Tenant, and Tenant, does hereby rent from Landlord the space containing
126,276 +/- rentable square feet ("Leased Premises" or "Premises"). The Leased
Premises is located in the building known as Dulles Park Technology Center
("Building"), which is situated at Herndon, Virginia. The Building is located on
the land described on Exhibit "A" ("Property") and the floor plans of the Leased
Premises are attached as Exhibit "B" and incorporated by reference. The square
footage of the Leased Premises is as follows:
First Floor - 32,058 square feet
Part of Third Floor - 19,001 square feet
Fourth Floor - 37,613 square feet
Fifth Floor - 37,604 square feet
The Leased Premises were computed using the BOMA method, using a building
average common area factor of 7.01% for a full-floor and a multi-tenant floor
building average common area factor of 10.39%, subject to any Base Building
modifications by Tenant. Landlord will measure the Premises following
installation of exterior glass and interior core walls. Landlord will certify
the measurements to Tenant. The measurements will not exceed the amounts
described above. If Tenant disputes the measurements, Tenant must object within
ten (10) days following receipt of Landlord's certificate. If the dispute cannot
be resolved within fifteen (15) days, the parties shall mutually select an
architect to measure the Premises and his determination shall be binding on both
Landlord and Tenant.
1.2 TENANT'S PLANS.
l.2(a) - Landlord agrees to cooperate to the fullest extent
possible with Tenant's architect and engineers. Tenant, has stipulated that as
of the Lease execution it has no changes to the Base Building that are time
sensitive items or relates to the delivery of the Building except those changes
identified in paragraphs 21, 22 and 23 of Exhibit D. Tenant agrees to complete
and deliver to Landlord no later than the Engineering Plan Delivery Date all
drawings and information pertinent to Tenant's special systems and conditions,
such as additional structural loads, slab penetrations and depressions,
increased transformer loads, increased chiller capacity, additional shafts,
chases, exhausts, and bus ducts as well as any long lead items, including, but
not limited to, generators and HVAC equipment. Further, Tenant agrees to
complete and deliver to Landlord no later than the Tenant Plan Delivery Date a
detailed floor plan layout together with
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working drawings and written instructions (herein called "Tenant's Plans")
prepared in accordance with and containing at least the information detailed in
Exhibit D and reflecting the partitions and improvements desired by Tenant in
the Premises; Tenant's Plans shall be adequate to apply for and subsequently
receive Tenant's building permit. It is Tenant's responsibility, and Tenant so
agrees, diligently to pursue the building permits for Tenant's Work.
1.2(b) - Within five (5) business days of the receipt of
Tenant's Plans, Landlord shall furnish to Tenant in writing either Landlord's
approval or Landlord's detailed objections to Tenant's Plans. Landlord and
Tenant shall work diligently to resolve any of Landlord's objections. Within
fifteen (15) business days of the receipt of Tenant's Plans (revised if
necessary to address Landlord's objections), Landlord shall furnish to Tenant in
writing a time schedule for the completion of the work shown on Tenant's Plans
and a statement of all costs of construction work and material necessary to
complete the Premises in accordance with Tenant's Plans. Landlord agrees to
price the work required to complete Tenant's Plans in accordance with the
procedure set out in Exhibit E. The extent by which such costs exceed the Tenant
Allowance (as described in Section 1.5), such excess cost are herein referred to
as "Tenant Plan Excess Costs." Tenant shall notify Landlord in writing, within
five (5) business days of receipt by Tenant of Tenant Plan Excess Costs, of
either its approval thereof and its authorization to Landlord to proceed with
construction in accordance with Tenant's Plans or any changes in Tenant's Plans.
In the event of the latter modification, Landlord shall, within five (5)
business days of receipt of said changes in Tenant's Plans quote to Tenant all
changes in Tenant Plan Excess Costs resulting from said plan, modifications.
Tenant shall, on or before the 30th day following the original receipt by Tenant
of Tenant Plan Excess Costs, give authorization to Landlord to proceed with the
construction in accordance with Tenant's Plans as modified. Tenant shall
reimburse Landlord, as Additional Rent, for Tenant Plan Excess Costs as follows:
During the construction work, Landlord may, on or about the first day of each
month, deliver to Tenant a statement showing that proportion of Tenant Plan
Excess Costs allocable to the previous month's work. Tenant shall pay to
Landlord as Additional Rent the amount specified in each such statement within
thirty (30) days after receipt of such statement. Whenever under the terms of
this Lease Landlord is to provide cost figures to Tenant for Tenant's Work,
Tenant may obtain quotations for such work provided Tenant does so in a timely
manner and does not delay Landlord; in such event, Tenant may direct Landlord to
utilize Tenant's selected suppliers or subcontractors provided that the use of
such suppliers or subcontractors does not (i) delay Landlord's ability to
complete Tenant's Work and (ii) does not have a material affect on the quality
of Tenant's Work. In the event Tenant elects to purchase any equipment which is
included in Tenant's work, then the following shall apply: (x) Landlord will be
entitled to charge Tenant for overhead and profit on the cost of the equipment;
the applicable overhead and profit percentage will be 5/5 unless the special
provisions of Exhibit D apply; and (y) if the purchase by Tenant delays
Landlord's substantial completion of the Premises, the penalty provisions of
Section 1.2 (d) shall apply.
1.2(c) - All of the work required to complete the work
described in Tenant's Plans, Exhibit D and any Tenant change orders are
collectively referred to as "Tenant's Work."
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1.2(d) - Time is of the essence in connection with the
completion, approval and delivery to Landlord of the drawings and information
referred to in Section 1.2(a) and Tenant's Plans, and the authorization to
Landlord to proceed with construction of Tenant's Work; Landlord is to commence
Tenant's Work upon receipt of all requisite building permits; Tenant agrees to
deliver such building permits no later than seven (7) weeks after May 21 (i.e.,
July 9, 1999); if Tenant provides building permits on a staggered basis,
Landlord agrees to act reasonably and will attempt to commence Tenant's Work as
soon as practical. Should Tenant fail to cooperate in the completion and
delivery of the drawings and information referred to in Section 1.2 (a) or the
Tenant's Plans, or should Tenant require additional changes to drawings and
plans after such items have been approved by Landlord or should Tenant fail to
authorize Landlord to proceed, as scheduled, Tenant shall pay to Landlord, as
additional rent and for the purpose of reimbursing Landlord for additional
expenses which will be incurred by Landlord because of the inability to proceed
with the work as scheduled, one day's rent for the Premises for each day that
delivery of the drawings and information referred to in the first sentence of
this Section or the Tenant's Plans is delayed beyond the Engineering Plan Date
or the Tenant Plan Delivery Date, as the case may be, or that authorization to
proceed is delayed beyond the date above provided therefor. Such additional rent
shall be paid by Tenant to Landlord within thirty (30) days after receipt by
Tenant of Landlord's invoice therefor. However, such penalties will be reduced
to the extent Tenant can prove that the delays by Tenant did not have a negative
impact on Landlord's ability to complete both the Base Building and Tenant's
Work in accordance with the requirements of this Lease. In addition, Tenant
shall be liable to Landlord if delays caused by Tenant adversely affect
Landlord's ability to complete work for other tenants in the Building. Landlord
agrees to advise Tenant promptly when Landlord believes that an act or failure
to act by Tenant will result in Tenant liability under this Section 1.2(d).
1.2(e) - Subject to the above, Landlord agrees to complete the
Tenant's Work in accordance with Exhibit E and Landlord's Work in accordance
with Exhibit C.
1.3 LANDLORD'S AND TENANT'S WORK.
1.3(a) - Landlord is responsible to complete, within the time
requirements as herein set forth, (i) the Base Building in accordance with
Exhibit C ("Landlord's Work") and (ii) all of Tenant's Work.
1.3(b) - Landlord agrees to use due diligence substantially to
complete both Landlord's Work and Tenant's Work in accordance with the time
frames set forth below. Landlord shall not be required to install any
improvements which are not in conformity with the plans and specifications for
the Building or which are not approved by Landlord and Landlord's architect
(which approval shall not be unreasonably withheld) or which do not meet all
applicable codes and requirements. In case of delays due to governmental
regulations, unusual scarcity of or inability to obtain labor or materials,
labor difficulties, casualty or other causes reasonably beyond Landlord's
control, the Rent Commencement Dates, as applicable, shall be extended for the
period of such delays. The Premises shall be deemed substantially completed on
the latest of (a) the date estimated for substantial completion in a notice
delivered to Tenant at least thirty (30) days before such date, or (b) the date
on which Landlord certifies in writing to
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Tenant that Landlord's Work and Tenant's Work, together with the common
facilities for access and service to the Premises, is Substantially Completed
(as defined below) except for items of work and adjustment of equipment and
fixtures which can be completed after occupancy has been taken without causing
substantial interference with Tenant's use of the Premises (i.e., so-called
"punch-list" items). Landlord shall complete, as soon as conditions practically
permit, all punch-list items. Landlord shall permit Tenant access for installing
furnishings in portions of the Premises when it can be done without material
interference with remaining work. Substantial Completion shall occur when (i)
the Premises have received its certificate of occupancy as it relates to Base
Building construction and (ii) Tenant's Work is substantially completed in
accordance with the provisions of this Lease (including the Exhibits), except
for minor punchlist items so that Tenant can obtain a Nonresidential Use Permit
(NONRUP) for the applicable part of the Premises; however, the Premises will be
deemed Substantially Complete to the extent there are unfinished items of
Landlord's Work that would prevent the obtaining of a NONRUP but such items
cannot be completed because their completion is interdependent with the
installation of Tenant's furniture systems, fixtures and equipment.
1.3(c) - Except in the event of (i) Landlord's breach or (ii)
in case of delays caused by governmental regulations, unusual scarcity of or
inability to obtain labor or materials, labor difficulties, casualty or other
causes reasonably beyond Tenant's control, Tenant agrees that no delay by it, or
anyone employed by it, in performing work to prepare the Premises for occupancy
shall delay commencement of the Term or the obligation to pay rent, regardless
of the reason for such delay or whether or not it is within the control of
Tenant or any such employee.
1.4 GENERAL PROVISIONS APPLICABLE TO CONSTRUCTION. All
construction work required or permitted by this Lease shall be done in a good
and workmanlike manner and in compliance with all applicable laws and all lawful
ordinances, regulations and orders of governmental authority and insurers of the
Building. Each party may inspect the work of the other at reasonable times and
shall promptly give notice of observed defects. Each party authorizes the other
to rely in connection with design and construction upon approval and other
actions on the party's behalf by any Construction Representative of the party
named in the Reference Sheet or any person hereafter designated in substitution
or addition by notice to the party relying. The work required of Landlord
pursuant to this Article I shall be deemed approved by Tenant when Tenant
commences occupancy of the Premises for the Permitted Uses, except for items
which are then uncompleted or do not conform to the drawings and specifications
referred to in Section 1.2 and as to which, in either case, Tenant shall have
given notice to Landlord within thirty (30) days after Rent Commencement Date;
this notice requirement shall not apply to undisclosed latent defects.
1.5 TENANT ALLOWANCE. The Tenant Allowance shall be calculated and
applied as follows:
1.5(a) - The allowance for the Switch Area (constituting
one-half of the First Floor) shall be $30.00 per square foot of net rentable
area.
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1.5(b) - The allowance for the Office Space (as defined
hereinafter) in the Demised Premises shall be $25:00 per square foot of net
rentable area.
1.5(c) - To the extent Tenant designates part of one or more
floors (up to a maximum allocation of 1,800 square feet per full floor) for use
as Storage Space (as defined hereinafter), there is no Tenant Allowance for such
Storage Space. At this time, Tenant does not intend to designate any Storage
Space; such space will be built out as office Space.
1.5(d) - The Tenant Allowances described in (a), (b) and (c)
above may be utilized for design, permits, architect and engineering fees, and
completion of Tenant's Work including equipment and infrastructure serving the
Switch Area.
1.5(e) - Up to $5.00 per rental square foot of the Tenant
Allowance may be utilized by Tenant for any of its costs associated with
locating to the Building including but not limited to cabling costs, costs for
furniture or other equipment to be installed in the premises, cost of building
signage, printing costs, or moving costs; or Tenant may, at its option, use any
of such portion of the allowance to offset rent due under the Lease.
1.5(f) - Provided all of the Tenant's Allowance described in
(a), (b) and (c) above is used for completing Tenant's Work (hard and soft
costs), Landlord, upon Tenant's request, shall fund up to an additional $5.00
per rentable square foot to offset additional costs of Tenant related to its
relocating to the Building whether such costs are hard or soft construction
costs, equipment or other costs. Said additional funding shall be amortized over
the Term commencing on January 1, 2000 (ending December 31, 2006) at an interest
rate of 10%, shall be fully secured by Letter of Credit, and shall be paid by
Tenant monthly as additional rent. There shall be no escalations on the
amortization payments. If Tenant exercises its rights under this Section 1.5,
Landlord and Tenant agree to amend and restate this Lease to reflect this
economic change.
1.6 REAL ESTATE TAXES ON LEASEHOLD IMPROVEMENTS. If, under
Virginia or Fairfax County law or regulations, the Tax Assessor is required to
include leasehold (real property) improvements in determining the assessed value
of the Building, then to the extent that Tenant makes extraordinary leasehold
improvements (excluding Tenant's original installation and Tenant's subsequent
alterations, additions, substitutions and improvements consistent with its
original Tenant work) which are significantly in excess of the original scope of
Tenant's Work, whether done prior to or after the commencement of the Term of
this Lease, Tenant shall pay the real estate taxes attributable to :the value of
such extraordinary leasehold improvements throughout the Term of this Lease
within thirty (30) days after being billed therefor by Landlord.
1.7 RELIANCE.
1.7(a) - Throughout the Term of the Lease, including, but not
limited to any period of construction or renovation at the Premises, the
Landlord may rely on any statements and certificates delivered to it by the
Tenant's Construction Representative (which Tenant reserves the right to change
by notice in writing) and the Landlord shall be relieved of all liability with
respect to its action or failure to act in accordance with such statements and
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certificates, except only for its gross negligence and willful misconduct. In
addition, throughout the Term the Landlord shall be protected and shall incur no
liability in acting or proceeding in good faith upon any resolution, notice,
telegram, request, consent, waiver, certificate, statement, affidavit, voucher,
bond, requisition or other paper or document which it shall in good faith
believe to be genuine and to have been passed or signed by the proper person or
to have been prepared and furnished pursuant to any of the provisions of this
Lease, and the Landlord shall be under no duty to make any investigation or
inquiry as to any statements contained or matters referred to in any such
instrument, but may accept and rely upon the same as conclusive evidence of the
truth and accuracy of such statements.
1.7(b) - Throughout the Term of the Lease, including, but not
limited to any period of construction or renovation at the Premises, the Tenant
may rely on any statements and certificates delivered to it by the Landlord's
Construction Representative (which Landlord reserves the right to change by
notice in writing) and the Tenant shall be relieved of all liability with
respect to its action or failure to act in accordance with such statements and
certificates, except only for its gross negligence and willful misconduct. In
addition, throughout the Term the Tenant shall be protected and shall incur no
liability in acting or proceeding in good faith upon any resolution, notice,
telegram, request, consent, waiver, certificate, statement, affidavit, voucher,
bond, requisition or other paper or document which it shall in good faith
believe to be genuine and to have been passed or signed by the proper person or
to have been prepared and furnished pursuant to any of the provisions of this
Lease, and the Tenant shall be under no duty to make any investigation or
inquiry as to any statements contained or matters referred to in any such
instrument, but may accept and rely upon the same as conclusive evidence of the
truth and accuracy of such statements.
1.8 OPTION TO EXPAND.
Tenant shall have the option (the "Option") to lease any or
all of the remaining space located in the Building (the "Expansion Space") on
the following terms and conditions; this Option shall not apply to the entire
second floor which is being leased to GSA:
1.8(a) - Commencing as of the date hereof and continuing
through the initial leasing of the remaining premises in the Building ("Initial
Lease Up Period"), Tenant may (i) in the event there is a bona fide third party
offer, elect to exercise the option within five (5) business days of Tenant's
receipt of Landlord's notification of a bona fide third party offer for all or
any portion of the Expansion Space and the terms of such offer by giving
Landlord written notice of Tenant's election to lease all or any portion of the
Expansion Space upon the same terms and conditions of the bona fide third party
offer; and (ii) in a situation other than as described in (i) above, and
provided that such space is not then subject to an executed lease or a fully
executed letter of intent that results in a lease, notify Landlord of its intent
to exercise its Option and lease all or any portion of the Expansion Space at
prevailing market rates as determined in accordance with the procedure set forth
in Section 2.4(b). Tenant's ability to exercise its option during the Initial
Lease Up Period shall be conditioned on the following:
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(1) no Event of Default shall have occurred and be
continuing hereunder at the time Tenant exercises its option and/or at the time
Landlord delivers the Expansion Space to Tenant;
(2) Tenant shall continue to occupy (except for
transfers under Article XI) no less than 75% of the Leased Premises at the time
Tenant exercises its option subsequent to the Rent Commencement Dates;
(3) The option shall be for no less than one-half of
any remaining floor in the Building unless such lesser area remains on a floor
that has otherwise been leased or Landlord otherwise is marketing the space for
less than a one-half floor increment.
18(b) - Subsequent to the Initial Lease Up Period, Landlord
shall, when it becomes so aware, promptly notify Tenant of the availability of
any space within the Building that is or is to become available for lease, and
Tenant shall have ten (10) business days after receipt of its notice from
Landlord to notify Landlord of its desire to lease said space at then prevailing
market rate as determined in accordance with Section 2.4 (b) (including then
market lease concessions, allowances and brokerage commissions). Thereafter, and
at any time prior to Landlord entering a lease or an executed letter of intent
on any space that results in a lease, Tenant may notify Landlord of its intent
to exercise its option and lease said space at then prevailing market rates
(including any tenant improvement allowance and other concessions offered to
other tenants) as determined in accordance with Section 2.4(b), provided that
the lease term for such additional space shall be for no less than five (5)
years. Notwithstanding anything herein to the contrary, unless Landlord enters
into a lease with one tenant to lease the entire second (2nd) floor and the
entire balance of the third (3rd) floor, Landlord shall only lease the balance
of the third (3rd) floor for a five (5) year lease term, and Tenant shall have
an option to lease such third (3rd) floor space that will be superior to any
renewal right the tenant of such third (3rd) floor space might have. The
exercise of any rights under this Section 1.8(b) shall be conditioned upon
compliance with the requirements of Section 1.8(a)(1) and (2).
1.8(c) - It is a condition precedent to the exercise of
Tenant's rights under this Section 1.8 that at the time of such exercise, there
exists no material adverse change in Tenant's and/or Guarantor's financial
condition from that set forth in the Net2000 financial statements for the two
months ending February 28, 1999; Landlord shall make such determination on a
commercially reasonable basis.
1.8(d) - If Tenant fails to satisfy any of the foregoing
conditions, Landlord may, at its election, by written notice either waive such
condition or declare Tenant's exercise of its Option to be null and void and of
no further force or effect. Tenant shall accept the Expansion Space "as is" and
"as built", except that Landlord shall have the obligation to correct any latent
defects to base building and base building systems, and all leasehold
improvements made by Tenant to the Expansion Space shall be installed in
accordance with the provisions of Article IX of the Lease and at Tenant's sole
cost and expense. Tenant shall not be obligated to commence paying Rent with
respect to the Expansion Space until the date that is the earlier of (i) thirty
(30) days after the Expansion Space has been delivered to Tenant vacant, broom
clean with all prior
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tenant's personal property removed, free and clear of all leases and tenancies,
ready for Tenant's leasehold improvement work, or (ii) the date that
construction of leasehold improvements to the Expansion Space has been
substantially completed, subject to punchlist items. Landlord agrees promptly to
notify Tenant when Landlord is notified that Expansion Space will become
available.
1.8(e) - Tenant shall execute and deliver to Landlord within
fifteen (15) business days after receipt thereof from Landlord an amendment to
the Lease prepared by Landlord, in reasonable form, which, effective as of the
date that Rent commences for Expansion (i) adds the Expansion Space to the
Leased Premises, (ii) increases the rentable area of the Leased Premises by the
rentable area of the Expansion Space and increases Tenant's Proportionate Share
accordingly, and (iii) makes such other modifications of affected portions of
this Lease consistent with the foregoing.
ARTICLE II - TERM
2.1 TERM. This term of this Lease shall commence on the applicable
dates described in Exhibit F (the "Rent Commencement Date" or "Rent Commencement
Dates"). The term shall expire on December 31, 2006 for the entire Leased
Premises other than one-half of the first floor Premises adjacent to the
generator area (the "Switch Space") and the term of this Lease for the Switch
Space shall expire on that date which is the last day of the year prior to the
tenth (10th) anniversary of the Rent Commencement Date for the Switch Space
(collectively, the "Term"), unless sooner terminated pursuant to any provision
hereof. Landlord and Tenant shall execute Certificates confirming the Rent
Commencement Dates in the form attached hereto as Exhibit G.
2.2 DELAY IN OCCUPANCY. Except as otherwise provided herein, if
for any reason Landlord cannot deliver possession of the Leased Premises to
Tenant in accordance with the provisions of this Lease (including Exhibits),
Landlord shall not be subject to any liability (except for rent credits pursuant
to Exhibit E), nor shall such failure affect the validity of this Lease or the
obligations of Tenant hereunder, except the Rent Commencement Dates, as
applicable, shall be delayed until possession of the Leased Premises is
delivered to Tenant and the Term shall be extended for a period equal to the
delay in the delivery of the Leased Premises, plus the number of days necessary
to end the Term on the last day of a month. In the event of any delay hereunder,
Landlord and Tenant shall execute and deliver an amendment hereto setting forth
the revised Rent Commencement Dates (and expiration date for the Switch Space).
2.3 EARLY OCCUPANCY. Tenant shall have the right to occupy the
Leased Premises at least two (2) weeks prior to Substantial Completion, and any
such occupancy shall be upon all of the terms and conditions contained herein
(except for the obligation to pay Rent) but shall not advance the expiration
dates for the Leased Premises as set forth herein. Further, such occupancy shall
be for the sole purpose of installing and testing telecommunications equipment,
computer systems and networks and other equipment; provided that such access by
Tenant shall not materially interfere with Landlord's Work, the cost to complete
its work, or adversely affect its schedule. Tenant agrees to coordinate the
installation of such equipment with Landlord.
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2.4 OPTION TO RENEW TERM.
2.4(a) Provided no Event of Default shall have occurred
hereunder and is continuing, either on the date Tenant gives Landlord the
renewal notice required herein or at the end of the initial Term of this Lease,
Landlord hereby grants to Tenant two (2) consecutive options to renew this Lease
for five (5) years each. Such option to renew must be exercised by giving
written notice to Landlord at least nine (9) months but no more than twelve (12)
months prior to the termination of either the initial Term of this Lease or any
renewal term thereof. Subject to the terms set forth herein, once a notice to
exercise is given it is irrevocable by Tenant. If Tenant elects to exercise such
renewal option, then such renewal term shall be on the same terms and conditions
as contained in this Lease, except that Base Rental shall be at 95% of the then
prevailing market rental rates ("Market Rent") applicable to tenants of
comparable financial status, for properties of comparable age, use and Dulles
Toll Road frontage, signage, location and transactions of comparable size,
duration and location and factoring in all then market lease concessions,
allowances, and brokerage commissions. If Landlord and Tenant cannot agree on
renewal terms, Tenant can, upon written notice to Landlord, within five (5)
business days after receipt of Landlord's written statement of the proposed
Market Rent, (i) withdraw its option to renew or (ii) elect to utilize the
three-broker method outlined in Section 2.4(b). Upon being apprised in writing
of the renewal terms resulting from the three broker method, Tenant must
exercise its renewal option within five (5) business days; provided however, if
(x) at the time such determination of renewal terms is provided to Tenant at
least nine (9) months remain on the then applicable term of this Lease, and (y)
Tenant agrees to reimburse Landlord for all costs related to the three-broker
method, then Tenant may, within five (5) business days, withdraw its option to
renew. Except for the Switch Space, Tenant's renewal rights may be for less than
the entire Leased Premises, provided that Tenant renews the Lease for the
equivalent of at least two (2) full floors of the Building. In the event Tenant
exercises its option to renew, all other terms of this Lease shall remain the
same. As used throughout this Lease, any reference to the "lease term", "term",
or "term of this Lease" shall also include any and all renewal terms.
2.4(b) If Tenant elects to use the three-broker method, then
the Market Rent will be determined by a board of three (3) licensed real estate
brokers. Landlord and Tenant shall each appoint one (1) broker within ten (10)
days after either party elects the three broker method. The two so appointed
shall select a third within fifteen (15) days after they both have been
appointed. Each broker on said board shall be licensed in the Commonwealth of
Virginia as a real estate broker, specializing in the field of commercial
leasing in Fairfax County having no less than ten (10) years experience in such
field, and recognized as ethical and reputable within his or her field. Each
broker, within fifteen (15) days after the third broker is selected, shall
submit his or her determination of Market Rent. Market Rent shall be the mean of
the two closest rental rate determinations. Landlord and Tenant shall each pay
the fee of the broker selected by it and they shall share the payment of the fee
of the third broker.
2.4(c) It is a condition precedent to the exercise of Tenant's
rights under this Section 2.4 that at the time of such exercise, there exists no
material adverse change in Tenant's and/or Guarantor's financial condition from
that set forth in the Net2000 financial statements for
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the two months ending February 28, 1999; Landlord shall make such determination
on a commercially reasonable basis.
ARTICLE III - RENT
3.1 BASE RENT
3.1(a) - Tenant shall pay rent to Landlord starting with each
respective Rent Commencement Date of the Lease as set forth on Exhibit F for the
use and occupancy of the Leased Premises (exclusive of the Switch Space) at an
annual rate of Two Million Five Hundred Thirty Five Thousand Six Hundred
Eighty-two Dollars ($2,535,682) ("Office Base Rent"), payable in equal monthly
installments of Two Hundred Eleven Thousand Three Hundred Seven Dollars
($211,307) each, in advance, on the first day of each month during the first
five (5) years of the Term hereof. Commencing as of the first day of the first
month of the sixth (6th) anniversary of the Lease and continuing on the first
day of each month thereafter, the Office Base Rent shall increase to an annual
rent of Two Million Nine Hundred Seventy-six Thousand Six Hundred Seventy-one
Dollars ($2,976,671) and shall be payable in monthly installments of Two Hundred
Forty-eight Thousand Fifty-six Dollars ($248,056) each, in advance. Base rent
for the Switch Space ("Switch Space Base Rent"; the Office Base Rent and the
Switch Space Base Rent are hereinafter collectively referred to as the "Base
Rent") shall be payable at an annual rate of Three Hundred Seventy-five Thousand
Eighty-two ($375,082), payable in equal monthly installments of Thirty-one
Thousand Two Hundred Fifty-seven ($31,257) each, in advance, on the first day of
each month during the first five (5) years of the Term hereof. Commencing as of
the first day of the first month of the sixth (6th) anniversary of the Lease and
continuing on the first day of each month thereafter, the Switch Space Base Rent
shall increase to an annual rate of Four Hundred Forty-five Thousand, Six
Hundred Ten ($445,610) and shall be payable in monthly installments of
Thirty-seven Thousand One Hundred Thirty-four Dollars ($37,134) each, in
advance. The Base Rent is computed based upon 126,276 rentable square feet of
office space as shown on Exhibit B. Base Rent and all other sums, whether
designated additional rent or otherwise, payable to Landlord under this Lease
shall be payable in U.S. Dollars at the office of Xxxx Metropolitan LLC, 0000
Xxxxxxxx Xxxxx, Xxxxx 000, XxXxxx, Xxxxxxxx 00000, or at such other place or
places as Landlord may in writing direct. All rent payable under this Lease
shall be paid by Tenant without notice or demand, both of which are expressly
waived by Tenant. Base Rent due under this Lease shall be paid by Tenant without
demand, offset or deduction.
3.1(b) - The Base Rent is calculated on the following basis:
Switch Space:
Lease Years 1-5: $23.40 per rentable square foot, net of electric
Lease Years 6-10: $27.80 per rentable square foot, net of electric
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ALL OTHER OFFICE SPACE:
Lease Years 1-5: $23.00 per rentable square foot, net of electric
Lease Years 6-10: $27.00 per rentable square foot, net of electric
The above rents are applied to the square footages
described in Section 1.1.
The Base Rent will be increased as necessary to
reflect Tenant's use of increased Tenant Allowances as described in Section
1.5(f).
The Base Rent will be decreased to the extent Tenant
elects to utilize Storage Space. The Base Rent payable with respect to Storage
Space shall be calculated at Twelve Dollars ($12.00) per square foot.
3.2 ADDITIONAL RENT. Tenant shall pay to Landlord additional rent
as provided in this Article III. All charges due and payable by Tenant other
than Base Rent are herein called "Additional Rent". The term "Rent" shall mean
Base Rent and Additional Rent.
3.3 LATE CHARGES. Tenant's failure to pay Rent promptly may cause
Landlord to incur unanticipated costs. The amount of such costs are difficult to
ascertain, and therefore on any. Rent payment not made within fifteen (15) days
after it is due, Tenant shall pay Landlord a late charge equal to ten percent
(10%) of the overdue amount. The parties agree that such late charge represents
a fair and reasonable estimate of the costs Landlord will incur by reason of
such late payment.
3.4 PROPORTIONATE SHARE. Tenant's "Proportionate Share" as used in
this Lease shall be obtained by multiplying the expense in question by a
fraction, the numerator of which shall be the rentable square footage area of
the Leased Premises, and the denominator of which shall be the rentable square
footage area of the Building which for purposes of this Lease shall be
stipulated to be 182,527. For purposes of this Lease, subject to the expansion
option, Tenant's Proportionate Share is 69%.
If the average occupancy rate for the Building during any
calendar year is less than one hundred percent (100%), or if any tenant is
separately paying for electricity or janitorial services furnished to its
premises, then Common Expenses for such calendar year shall be deemed to include
all additional expenses, as reasonably estimated by Landlord, which would have
been incurred during such calendar year if such average occupancy rate had been
ninety-five percent (95%) with all warranties no longer applicable and if
Landlord paid for electricity and janitorial services furnished to such
premises.
3.5 REAL PROPERTY TAXES.
3.5(a) - As Additional Rent, commencing January 1, 2001,
Tenant shall pay monthly one-twelfth (1/12th) of its Proportionate Share
(calculated as provided in (b) below) of annual Real Property Taxes for any
calendar year, with the monthly Proportionate Share
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payments being paid in such amount as Landlord may reasonably estimate. If
Tenant has overpaid or underpaid the actual amount due, the excess shall be
credited against or added to Tenant's next Rent due. A true copy of the tax xxxx
rendered by Fairfax County and submitted by Landlord to Tenant shall be
conclusive evidence of the amount of Real Property Taxes, as well as the items
taxed.
3.5(b) - Tenant shall pay, as Additional Rental, Tenant's
Proportionate Share of the amount by which Real Property Taxes (as defined in
Section 3.5(c)) payable during each calendar year falling entirely or partly
within the Lease Term exceed a base amount (the "Real Property Taxes Base
Amount") equal to the Real Property Taxes, paid or payable (after final action
with respect to any appeals thereof) with respect to the year 2000 grossed up,
if necessary, to reflect a fully assessed building. Tenant shall make estimated
monthly payments to Landlord on account of the amount by which Real Property
Taxes that are expected to be paid during each calendar year would exceed the
Real Property Taxes Base Amount. At the beginning of the Lease Term and at the
beginning of each calendar year thereafter, Landlord may submit a statement
setting forth Landlord's reasonable estimates of such excess and Tenant's
Proportionate Share thereof. Tenant shall pay to Landlord on the first day of
each month following receipt of such statement, until Tenant's receipt of the
succeeding annual statement, an amount equal to one-twelfth (1/12th) of such
share.
3.5(c) - Tenant shall have the right, if Tenant disputes the
amount or validity of any Real Property Taxes, to contest and defend the same,
and in good faith diligently conduct any necessary proceedings to prevent and
avoid the same; provided, however, that Landlord elected not to contest such
Real Property Taxes within a reasonable period of time subsequent to Tenant's
written request to Landlord in regards thereto and Tenant prosecutes such
contest to a final conclusion as speedily as is reasonably possible. Tenant
shall be entitled to keep any rebate made on account of any Real Property Taxes
imposed on the Building or land upon which the Building is located equal to
Tenant's Proportionate Share thereof. Landlord agrees to render Tenant all
reasonable assistance, at no expense to Landlord, in contesting the validity or
amount of any Real Property Taxes on the Building or land on which the Building
is located for which Tenant is obligated to pay its Proportionate Share,
including joining in the execution of any reasonable documents, or the signing
of any reasonable protests or pleadings, which Tenant may file.
3.5(d) - "Real Property Taxes" shall mean: (i) any fee,
license fee, license tax, business license fee, commercial rental tax, levy,
charge, assessment, government charge or tax imposed by any taxing authority
against the Building or land upon which the Building is located; (ii) any tax on
the Landlord's right to receive, or the receipt of, rent or income from the
Building or against Landlord's business of leasing the Building; (iii) any tax,
or charge, or assessment, or any assessment for repayment of bonds for fire
protection, streets, sidewalks, road maintenance, refuse or other services
provided to the Building for any governmental agency; (iv) any charge or fee
replacing any tax previously included within the definition of real property
tax; and (v) any costs incurred by Landlord in contesting such Real Property
Taxes, whether successful or not. Real Property Taxes does not, however, include
Landlord's federal or state income, franchise,
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inheritance or estate taxes. Tenant shall pay when due all taxes charged against
trade fixtures, furnishings, equipment or any other personal property belonging
to Tenant.
3.6 INSURANCE. Landlord shall maintain commercial general
liability insurance, "all-risk of loss" property insurance, rent loss insurance,
Workers' Compensation insurance on the Building in such amounts and under such
coverages as is comparable to other first class mid-rise office buildings in the
Reston/Herndon area. As Additional Rent, Tenant shall pay monthly one-twelfth
(1/12th) of its Proportionate Share of all premiums paid for such insurance for
any calendar year, with the monthly Proportionate Share payments being paid in
such amount as Landlord may reasonably estimate. If the amount paid by Tenant
toward insurance premiums exceeds or is less than the actual amount due, the
excess shall be credited against or the amount underpaid shall be added to
Tenant's next succeeding payment due under this Section. Copies of insurance
invoices from Landlord's insurers and submitted by Landlord to Tenant shall be
conclusive evidence of the amount of the premiums as well as the items insured.
3.7 COMMON EXPENSES.
3.7(a) - As Additional Rent, commencing January 1, 2001,
Tenant shall pay monthly one-twelfth (1/12th) of its Proportionate Share
(calculated as provided in (b) below) of Common Expenses (as hereinafter
defined) for any calendar year in such amount as Landlord may reasonably
estimate. After each calendar year, Landlord shall deliver to Tenant a statement
setting forth, in reasonable detail, the actual Common Expenses paid or incurred
by Landlord during the preceding calendar year and Tenant's Proportionate Share
thereof. If the amount paid by Tenant for Common Expenses exceeds or is less
than Tenant's Proportionate Share as shown by the statement, the excess shall be
credited against or the amount unpaid shall be added to Tenant's next payment
due under this Section.
3.7(b) - Tenant shall pay, as Additional Rental, Tenant's
Proportionate Share of the amount by which Common Expenses (as defined in
Section 3.7(c)) during each calendar year falling entirely or partly within the
Lease Term exceed a base amount (the "Common Expenses Base Amount") equal to the
Common Expenses incurred during 2000. Tenant shall make estimated monthly
payments to Landlord on account of the amount by which Common Expenses that are
expected to be incurred during each calendar year would exceed the Common
Expenses Base Amount. At the beginning of the Term and at the beginning of each
calendar year thereafter, Landlord may submit a statement setting forth
Landlord's reasonable estimates of such excess and Tenant's Proportionate Share
thereof. Tenant shall pay to Landlord on the first day of each month following
receipt of such statement, until Tenant's receipt of the succeeding annual
statement, an amount equal to one-twelfth (1/12th) of such share.
3.7(c) - In this Lease, "Common Expenses" shall mean all costs
incurred by Landlord in repairing, maintaining and operating the Building and
the Common Areas (as hereinafter defined) (other than (i) expenses recoverable
under Sections 3.5 or 3.6 above and (ii) expenses incurred by Landlord in
satisfying its obligations under Section 8.1 below); all such costs shall be
incurred by Landlord at the then fair market value of such costs. Common
Expenses shall include, but are not limited to, the following: gardening and
landscaping;
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electrical, gas, water and sewer service and maintenance and repair of the
facilities providing the same, to the extent not separately metered to tenants
of the Building; maintenance and repair of signs; premiums for liability,
property damage, fire and other types of casualty insurance on the Common Areas
and worker's compensation insurance; charges and assessments by the owners'
association, if any, for the Property; all personal property taxes and
assessments levied on or attributable to the Common Areas and all improvements
thereon; all personal property taxes levied on or attributable to personal
property used in connection with the Common Areas, the Building or the Property;
straight-line depreciation on personal property owned by Landlord and consumed
or used in the operation or maintenance of the Common Areas; rental or lease
payments paid by Landlord for rented or leased personal property used in the
operation or maintenance of the Common Areas or the Building; fees for required
licenses and permits; repairing, resurfacing, repaving, maintaining, painting,
lighting, cleaning, refuse removal, security and similar items; capital
improvements that are performed to (1) reduce operating expenses (as opposed to
replacements necessitated by wear and tear) but only in an amount equal to the
annual savings in operating expenses actually realized, or (2) comply with
governmental regulations enacted and enforceable after the date hereof; and a
reasonable management fee not to exceed 3.5% of gross rents.
3.7(d) - Notwithstanding anything herein to the contrary,
"Common Expenses" shall not include the following: (1) payment of principal or
interest due under any mortgage or deed of trust; (2) depreciation or
amortization of costs required to be capitalized in accordance with generally
accepted accounting principals (other than those described herein); (3) the cost
of roof replacement or capital improvements costs (other than those described
herein), whether principal or interest; (4) compensation paid to officers of
Landlord or officers of the management agent or any one else above the level of
asset manager; (5) the cost of tools, equipment and material used in, and all
other costs associated with, the initial construction of the Building and the
Project; (6) costs directly resulting from the gross negligence or willful
misconduct of Landlord, its employees, agents, contractors or employees; (7)
costs for which Landlord may be reimbursed by any insurance required to be
carried hereunder or actually carried by Landlord; (8) costs for any structural
maintenance, replacement or redesign (except for routine caulking or other
routine maintenance type items); (9) leasing commissions, legal fees and other
expenses incurred by Landlord or agents in connection with negotiations or
disputes with tenants or prospective tenants (other than with Tenant's
sublessees or assignees) for the Building or Complex; (10) costs or expenses
associated with the enforcement of any leases (other than with Tenant's
sublessees or assignees) by Landlord; (11) costs or fees relating to the defense
of Landlord's title or interest in the real estate containing the Building, or
any part thereof; (12) costs incurred by Landlord in connection with the initial
construction of the Building and related facilities; (13) expenses for the
correction of defects in Landlord's initial construction of the Building; (14)
any costs or expenses relating to Landlord's obligations under any workletter to
construct tenant improvements; (15) allowances, concessions, permits, licenses,
inspections, and other costs and expenses incurred in completing, fixturing,
renovating or otherwise improving, decorating or redecorating space for tenants
(including Tenant), prospective tenants or other occupants or prospective
occupants of the Building, or vacant leasable space in the Building, or
constructing or finishing demising walls and public corridors with respect to
any such space whether such work or alteration is performed for the initial
occupancy by such tenant or
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occupant or thereafter; (16) any cash or other consideration paid by Landlord on
account of, with respect to or in lieu of the tenant work or alterations; (17)
Landlord's costs of any services sold or provided to tenants for which Landlord
is entitled to be reimbursed by such tenants under the lease with such tenants;
(18) expenses in connection with services or other benefits of a type which are
not made available to Tenant but which are provided to another tenant or
occupant; (19) costs incurred due to violation by Landlord or any tenant of the
terms and conditions of any lease; (20) any expense for Landlord's advertising
and promotional program for the Building or the Complex; (21) renovation of the
Building made necessary by the exercise of eminent domain; (22) any cost
incurred to Landlord or an affiliate of Landlord for the provision of any goods
or services, to the extent such cost exceeds the cost then prevailing in
transactions between unrelated parties; (23) ground rent; (24) legal fees
(except for contesting tax assessments and legal matters associated with
governmental authorities relating directly to the real property after
certificate of occupancy and/or for personnel matters relating to employees of
the Building), or other professional or consulting fees (except such other
professional or consulting fees that are directly related to the maintenance,
operation or management of the Building); (25) any compensation paid to clerks,
attendants or other persons in commercial concessions operated for profit by
Landlord or in the parking garage of the Building; (26) increased insurance
premiums caused by Landlord's or any tenant's hazardous acts; (27) moving
expense costs of tenants of the Building; (28) costs arising from the presence
of hazardous materials or substances in or about or below the Building or the
Land including without limitation, hazardous substances in the groundwater or
soil unless caused by Tenant, it's agents or vendors; (29) costs incurred for
any items to the extent of Landlord's recovery under a manufacturer's,
materialmen's, vendor's or contractor's warranty; (30) wages, salaries or other
compensation or benefits for off-site employees applicable to the time spent
working at other buildings, other than the Building manager (provided that with
respect to each employee that services the Building and other buildings, a pro
rate portion of such employee's salary shall be included in Common Expenses, as
applicable); (31) costs of acquisition of sculpture, paintings, or other objects
of art; (32) the rent or expenses in lieu of rent for any on-site leasing office
of Landlord in the Building, or of any other space (except the management
office, storage and shop serving the Building) in the Building set aside for
storage or other facilities for the benefit of Landlord; (33) any other expenses
for which Landlord actually received direct reimbursement from insurance,
condemnation awards, warranties, other tenants or any other source; (34)
reserves for repairs, maintenance, and replacements; (35) Landlord's general
overhead expenses; (36) accounting fees other than those attributable to
reviewing and preparing operating statements for the Building; (37) costs
incurred to achieve compliance with any governmental laws, ordinances, rules,
regulations or orders except for those enacted and enforceable after Lease
Execution, and (38) any costs due to correction of any " Year 2000" problems
associated with any system servicing the Building.
3.8 VERIFICATION OF OPERATING STATEMENT. Upon request by Tenant,
and at Tenant's cost and expense, Landlord shall furnish Tenant such information
as may be necessary for Tenant to verify Common Expenses and shall cooperate
with Tenant in verifying the operating statement. No decreases in Common
Expenses shall reduce Tenant's rent below the Annual Base Rent set forth in
Section 3.1 of this Lease.
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If Tenant does not agree with Landlord's operating statement,
then Tenant shall have the right, if written notice of the nature and extent of
such disagreement is given to Landlord not later than thirty (30) days following
receipt of such statement by Tenant, and the parties are unable to resolve such
disagreement by negotiation, to cause an audit to be made, not later than ninety
(90) days following receipt of Landlord's statement of Landlord's records
concerning Common Expenses and Real Property Taxes by an independent certified
public accountant designated by Landlord from a list of not less than three (3)
such accountants selected by Tenant, at the expense of Tenant unless such audit
discloses an error in excess of five percent (5%) in the computation of Common
Expenses and Real Property Taxes, in which event such audit shall be at the
expense of Landlord. In no event shall the independent certified public
accountant making the audit be compensated on a contingent-fee basis. The
results of such audit, shall be binding upon Landlord and Tenant. If no such
notice is received by Landlord within thirty (30) days following receipt of
Landlord's operating statement of Common Expenses and Real Property Taxes, then
such statement shall be conclusively deemed to have been approved and accepted
by Tenant, except for willful concealment or fraud. Pending resolution of any
dispute with respect to statements of Common Expenses and Real Property Taxes,
Tenant shall pay the sums shown as due on such operating statement, and if it
shall be finally determined that any portion of such sums was not properly due,
Landlord shall promptly refund the appropriate sum to Tenant.
3.9 INTEREST ON PAST DUE AMOUNTS. Any amount owed by Tenant to
Landlord which is not paid when due shall bear interest at the rate of twelve
percent (12%) per annum from the due date of such amount, in addition to any
late charges due under this Lease. If the interest rate specified in this Lease
is higher than the rate permitted by law, the interest rate is hereby decreased
to the maximum legal interest rate permitted by law.
ARTICLE IV - COMMON AREAS
4.1 COMMON AREAS. In this Lease, "Common Areas" shall mean all
areas on the Property which are available for the common use of tenants of the
Property and which are not part of the Leased Premises or the premises of other
tenants. Upon prior written notice to Tenant, Landlord may from time to time
change the size, location, nature and use of any of the Common Areas. Tenant
acknowledges that such activities may result in occasional inconvenience and
such activities and changes shall be expressly permitted if they do not
materially and adversely affect Tenant's use of or access within and to the
Property or the Premises.
4.2 USE OF COMMON AREAS. Tenant shall have the nonexclusive right
(in common with all others to whom Landlord has granted or may grant such
rights) to use the Common Areas for the purposes intended, subject to such
reasonable rules and regulations as Landlord may establish from time to time.
Tenant shall abide by such rules and regulations and shall use its best effort
to cause others who use the, Common Areas with Tenant's expressed or implied
permission to abide by Landlord's rules and regulations. Tenant shall not, at
any time, interfere with the rights of Landlord, other tenants, or any other
person entitled to use the Common Areas. Notwithstanding this Section 4.2,
Tenant (a) has certain roof rights under Section 5.4, (b) has
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rights to locate a generator outside the building as shown on Exhibit M and (c)
has rights to locate mechanical equipment on the roof as shown on Exhibit N; in
connection with Tenant's rights under this sentence, Tenant shall be entitled to
run conduit or other connections between the Premises and the locations
identified herein, subject to Landlord's reasonable approval.
4.3 VEHICLE PARKING. During the initial Term of this Lease, Tenant
shall be entitled to the non-exclusive use of up to 4.0 parking spaces per 1,000
square feet of rentable Office Space and Switch Space area leased in the
Building without paying any additional rent. Inclusive in the ratio noted above,
the Landlord shall provide Tenant with twenty (20) reserved parking spaces in a
location to be mutually agreed upon by Landlord and Tenant, which shall be
marked by stencil and designated for Tenant's exclusive use. No more than ten
(10) additional spaces in the parking areas are to be reserved for the exclusive
use of other tenants in the Building; provided that, in the event additional
reserved spaces are allocated to other tenants in the Building, Tenant's number
of reserved parking spaces will be increased proportionately. Unless otherwise
agreed to in writing between Landlord and Tenant, all vehicle parking spaces on
the surface parking area are to be located immediately behind the Building.
Parking is to be limited to vehicles no larger than standard size automobiles or
pickup trucks or sport utility vehicles (each standard size as may be defined by
Fairfax County Code). Temporary parking of large delivery vehicles within an
area reasonably designated by Landlord on the Property shall be permitted by the
rules and regulations established by Landlord. Vehicles shall be parked only in
striped parking spaces and not in driveways, loading areas or other locations
not specifically designated for parking. Landlord shall have no obligation to
monitor or police said reserved spaces and shall not be liable to Tenant for
unauthorized use by a third party; provided that, if Tenant does not realize its
share of spaces provided by Landlord under the Lease due to overparking by other
tenants or visitors of such other tenants, Tenant may request Landlord, at
Landlord's cost, to allocate and xxxx all spaces and have property management
enforce by towing if other tenants do not observe said markings. Adequate
visitor parking shall be available for Building visitors and invitees in the
front parking lot of the Building; a proportionate share of visitor parking (not
to exceed 20 spaces) will be deducted from Tenant's allocated parking.
4.4 COMMON AREA MAINTENANCE. Landlord shall maintain the Common Areas
in first class order, condition and repair, consistent with that of comparable
first class mid-rise office buildings in the Reston/Herndon area. Landlord's
cost of such maintenance, repair and replacement shall be included as a Common
Expense which is subject to proportionate reimbursement as provided in Section
3.7 above.
ARTICLE V - USE
5.l USE.
5.1(a) - Tenant shall use the Leased Premises as follows: (i)
one-half of first floor for the installation, operation and maintenance of
telecommunications equipment (Switch Space and NOC); provided that such space
may be converted to office space at any time; (ii) up to a cumulative maximum on
each of floors 1, 3, 4 and 5, 1,800 square feet for storage ("Storage Space") as
more particularly described in Section 5.3 and (iii) the balance of the Premises
for any
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general office purposes (except for retail, industrial and/or manufacturing)
("Office Space"), each of which is to be consistent with the class, zoning and
character of the Building, and for no other purpose without the prior written
consent of Landlord. The Switch Space shall be located next to the generator
area on the first (1st) floor and will be used exclusively for constructing and
maintaining a telecommunications switch, including without limitation equipment,
racking shelves, and backup battery systems. Tenant will not use or occupy the
Leased Premises for any unlawful purpose, and will comply with all present and
future laws, ordinances, regulations, and orders of the United States of
America, the state in which the Leased Premises are located, and all other
governmental units or agencies having jurisdiction over the property and the
Leased Premises. Tenant agrees to operate its business in the Leased Premises
during the entire Term and to conduct its business in a reputable manner. Tenant
shall not cause, maintain or permit any outside storage on or about the Leased
Premises, shall not commit or suffer any waste upon the Leased Premises, or any
nuisance or other act or thing which may disturb the quiet enjoyment of any
other tenant in the Building. Unless Tenant pays the excess insurance cost, no
use shall be made or permitted to be made of the Leased Premises, nor acts done,
which will increase the existing rate of insurance upon the Building or cause
the cancellation of any insurance policy covering the Building, or any part
thereof. Tenant shall not sell, or permit to be kept, used, in or about the
Leased Premises, any article which may be prohibited by the standard form of
fire insurance policy. Tenant shall, at its sole cost and expense, comply with
any and all requirements, pertaining to the Leased Premises, of any insurance
organization or company, necessary for the maintenance or reasonable fire and
public liability insurance covering the Leased Premises, Building and
appurtenances. Tenant shall not place on any floor a load exceeding the floor
load per square foot which such floor was designed to carry unless such floor
has been reinforced as approved by Landlord and as provided in this Lease.
Landlord shall have the right to prescribe the weight, position and manner of
installation of safes and other heavy equipment and fixtures.
5.1(b) - Subject to Landlord's approval, Tenant reserves the
right to install or enter into a sublease for a delicatessen or food service in
a portion of the first floor of the Leased Premises provided that such
delicatessen or food service would be open to the public and would be subject to
Landlord's approval of all aspects of such delicatessen or food service,
including but not limited to, its location on the first floor, the type of food
to be served, and plans and specifications. In the event Tenant elects to
install and maintain a delicatessen or food service on the first floor of the
Leased Premises, such delicatessen or food service shall be installed, operated
and maintain in strict compliance with all applicable laws. Landlord will
consent to a sublease arrangement regarding this portion of the first floor
provided Tenant remains obligated in all respects on this Lease.
5.2 ADA. Tenant shall at its expense make any improvements or
alterations to the Leased Premises and Landlord shall at its expense make any
improvements or alterations to the Common Areas required to conform with the
Americans With Disabilities Act of 1990 ("ADA") and any other laws, ordinances,
orders or regulations of any governmental body or authority presently required
or hereinafter enacted. Tenant represents and warrants that the use and
occupancy of the Leased Premises as contemplated by this Lease comply or will
comply fully with all such laws, ordinances, and other governmental
requirements.
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5.3 STORAGE SPACE. Tenant shall have the right at any time prior
to Tenant Plan Delivery Date to convert up to 1,800 rentable square feet on each
full floor of the Leased Premises comprised of Office Space to one or more areas
of Storage Space. The Storage Space will include an access door and will be
ventilated at Landlord's sole cost. The Tenant Allowance described in Section
1.5, will not apply to any Storage Space; provided that Tenant may at its own
cost (which may include using the Tenant Allowance provided on the balance of
the Premises) to further improve such Storage Space to include air conditioning,
ceiling, lights and floor covering. Use of such Storage Space shall not be
limited to Storage Space and may be occupied; provided that such converted
Office Space is in compliance with all applicable codes for office space in a
first class mid-rise office building in the Reston/Herndon area.
5.4 ROOF RIGHTS.
5.4(a) - Subject to applicable governmental approvals and the
Rules and Regulations set forth in Exhibit J, copies of which Tenant shall
deliver to Landlord prior to the commencement of any installation or work
thereon, Tenant shall have the right to use portions of the roof of the Building
in proportion to the amount of the Building leased by Tenant, in a location and
area thereon as reasonably determined by Landlord, to house antennae, satellite
dishes or other equipment benefiting the Tenant's use thereof. Such roof rights
and access shall be rent-free but costs of installation, screening, removal and
coordination shall be at Tenant's sole cost and expense but upon prior written
notification to Landlord. In the event Tenant's rooftop installation relies upon
line-of-sight technology, Landlord shall not permit the post completion roof
installation of structures that at the time of installation will interfere with
the signals to and from the equipment. Landlord shall not allow the post
completion roof installation of equipment that will interfere with the then
existing radio frequency at which such equipment operates. Tenant shall have the
right to use or construct conduit or shafts from the roof to the Premises in
order to connect Tenant's roof equipment to Tenant's interior equipment and to
provide electrical power to the roof equipment. Landlord agrees not to require
relocation of Tenant's antennae except at Landlord's cost and provided that no
interruption of service occurs during such move; this sentence shall not apply
if the relocation or removal is required by applicable governmental authority.
5.4(b) - Landlord grants Tenant a non-exclusive license (1) to
use the roof for the purpose described, and (2) to make reasonable use of the
pathways, shafts, risers, raceways, conduits; available telephone closets,
interior telecommunications wiring and cabling, service areas and utility
connections and entries into and through the Building owned or under the control
of Landlord (the "Pathways") to connect the rooftop antennae to equipment within
the Premises, to the premises of other occupants of the Building (with such
other occupant's consent), or to the fiber optic backbone in the city street or
other existing location, and (3) to install interior equipment in close
proximity to the Building's inside wiring and cabling for the purpose of
connecting Tenant's equipment to such Main Distribution Frame for purposes of
serving occupants of the Building, and (4) to install, operate, maintain,
repair, relocate, upgrade and replace the rooftop antennae and associated cable,
wiring and equipment. Tenant's communications equipment and the manner of
installation thereof shall be subject to the
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approval of Landlord, which approval shall not be unreasonably withheld,
conditioned, or delayed.
5.4(c) - Landlord and Tenant agree that when other tenants
utilize the roof and when Tenant makes future changes in its use of the roof,
Tenant will cooperate in a reasonable manner with Landlord and other tenants in
an effort to maximize use of the roof by all tenants. Tenant will not alter its
existing roof equipment in a manner which adversely affects a then existing roof
use by another tenant; other tenants will be held to the same requirement when
they install or later alter their then existing roof equipment.
ARTICLE VI - LETTER OF CREDIT
As an additional inducement to enter into this Lease and as evidence of
Tenant's intention to comply with the terms and conditions of this Lease, Tenant
shall deliver to Landlord an irrevocable standby letter of credit drawn on
Tenant's regular commercial bank and running in favor of the Landlord in the
amount of $730,969.11 ("Letter of Credit") and in the form of Exhibit H
attached. Provided that (a) Tenant has timely paid the Rent for the first four
(4) years of the Term and (b) Tenant's and/or Guarantor's net worth at that time
is greater than as of February 28, 1999, the Letter of Credit shall be reduced
to an amount equal to one-month's Base Rent. Landlord shall hold the Letter of
Credit as security for the performance by Tenant of Tenant's covenants and
obligations under this Lease. Upon the occurrence of an Event of Default,
Landlord may, without prejudice to any other remedy, draw on the Letter of
Credit to the extent necessary to make good any arrearages or nonpayment of Base
Rent, Additional Rent or other charges provided for in this Lease, or to satisfy
any obligation of Tenant hereunder. Following any such presentment of the Letter
of Credit, Tenant shall deliver to Landlord on demand a new Letter of Credit in
order to restore the Letter of Credit to its original amount. It shall be an
Event of Default if Landlord receives notice from the issuing bank that the
Letter of Credit is not being renewed; however, it shall not be an Event of
Default if, after such notice, but before the fifteenth (15th) day preceding the
expiration date of the letter of credit, Tenant substitutes a letter of credit
in substantially similar form from a bank acceptable to Landlord or substitutes
a cash deposit.
ARTICLE VII - OPERATIONS; UTILITIES; SERVICES
7.1 OPERATION. Landlord shall operate the Building in accordance
with standards customarily followed in the operation of comparable first class
mid-rise office buildings in the Reston/Herndon, Virginia area.
7.2 HOURS OF OPERATION. The Building will be open from 8:00 a.m.
to 6:00 p.m., Monday through Friday, and from 8:00 a.m. to 12:00 p.m. on
Saturday. The Building will be closed on Sundays and on the following holidays:
New Year's Day, Memorial Day, Independence Day, Labor Day, Thanksgiving Day and
the day after, Christmas Day. Tenant shall have access to the Leased Premises 24
hours per day every day of the week.
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7.3 UTILITIES AND SERVICES. Landlord shall provide Tenant with the
following utilities and services during hours of operation:
7.3(a) Central heat and air-conditioning, in season, at such
temperatures and in such amounts as may be required to reasonably heat or cool
the Leased Premises to the specifications set forth in Exhibit C unless limited
by legal requirements. Tenant may designate in writing to Landlord other hours
of usage in addition to those in section 7.2, and provided such additional usage
does not exceed 4,250 hours per year, Tenant shall pay only the direct utility
cost of said additional hours. In the event Tenant's designated hours of use
prohibits Landlord's ability to have service and maintenance performed during
hours where such service would normally be performed, then Tenant shall pay the
incremental cost increase of performing such service during non-standard times.
The central heating and air-conditioning system will be a VAV system consisting
of a central cooling tower and two (2) mechanical units per floor providing 116
tons of cooling capacity per floor. Tenant requires the Switch and NOC portion
of the Leased Premises to be provided with central heat and air-conditioning
seven (7) days a week on a twenty-four (24) hour basis. Such areas will be
serviced by standalone heating and air-conditioning systems which are to be
installed and paid for by Tenant as part of-Tenant's Work; utility services will
be separately metered for this area, with meter design and configuration to be
subject to Landlord's reasonable approval; Tenant shall pay the direct utility
costs of operating said systems and no hourly fees shall apply to such areas; in
the event Tenant's stand alone system defaults, Tenant may utilize Landlord
systems; however, if such back-up use occurs outside normal building system
operating periods, such extraordinary use may be credited first against Tenant's
4,250 hour credit but will be subject to Landlord's normal charges after the
annual credit has been fully utilized; such charges are described above and in
Section 7.5.
7.3(b) Hot and cold water to serve the Leased Premises as
required for lavatory and drinking purposes and such other uses as are permitted
pursuant to this Lease.
7.3(c) Janitorial services as set forth on Exhibit I attached
hereto. Such services shall be provided in an amount and nature consistent with
similar first class mid-rise office buildings in the Reston/Herndon markets.
Tenant shall have the right to provide its own cleaning service for the Switch
Space, provided that, such janitorial services shall be consistent with services
provided to similar switch spaces within the Reston/Herndon area.
7.3(d) Four (4) standard passenger elevators, one of which
will be used for freight and deliveries, when the Building is open, and at least
one passenger elevator when the Building is closed. All elevators will be geared
(350 fpm) and have at least 2,500 lb. capacity. Tenant shall have a right to use
the freight elevator 24 hours per day, 7 days per week during Tenant's initial
construction period, at no extra cost, subject to Tenant coordinating its use of
the freight elevator with building management. The freight elevator will have a
3,500 lb. capacity. The dimensional specifications of the freight elevator cab
are as follows:
Door width: 42"
Height: 9'4"
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Depth: 5'5"
Width: 6'8"
The loading area is grade level and will be on the south side of the
Building and accessible to the freight elevator. Tenant shall designate its own
area for loading on the west side of the building with access to the freight
elevators.
7.4 INTERRUPTION OF SERVICES.
7.4(a) - Landlord shall not be in default under this lease and
shall not be liable to Tenant for failure to provide services pursuant to this
Article if failure to provide the services is caused by factors outside of
Landlord's control or is caused by Tenant's fault. If the cause of such services
interruption is within Landlord's control, as both parties shall reasonably
agree, then the following shall apply: (i) if such interruption continues for
more than five (5) consecutive days and renders any portion of the Leased
Premises unusable for the normal conduct of Tenant's business, then all Rent
allocable to the affected area shall be abated retroactively to the first (1st)
business day of such interruption and such abatement shall continue until full
use of such affected portion of the Leased Premises is restored to Tenant; (ii)
in the event that the interruption exceeds sixty (60) days, Tenant shall have
the right to cancel this Lease as to the portion so interrupted; however, if the
interruption causes the non-functioning of the equipment in the Switch Area,
then if such interruption exceeds thirty (30) days, Tenant may terminate as to
the Switch Area.
7.4(c) - Landlord shall promptly notify Tenant in writing of
any anticipated interruption of utilities or services due to, among other
things, repairs, maintenance or the like. To the extent that Landlord has
control over the timing of the interruption, Landlord will coordinate a mutually
agreeable time with Tenant. Landlord will use its best efforts to minimize the
amount of time of any interruption of services. If an emergency event or
circumstance occurs that threatens to materially interfere with Tenant's ability
to operate its Switch Equipment in a proper manner and pursuant to the Lease the
Landlord is required to take action to correct the situation (a "Required
Action") and Landlord has knowingly failed to provide or commence the Required
Action within the time period required by the Lease (or a reasonable period of
time, if no period of time is specified in the Lease) after the receipt of
notice, Tenant may proceed to take the Required Action pursuant to the terms of
the Lease. If any Required Action is taken by Tenant pursuant to the terms of
this section, then Landlord shall reimburse Tenant for its reasonable and
documented costs and-expenses in taking the Required Action within thirty days
after receipt by Landlord of an invoice from Tenant.
7.5 ELECTRICITY; EXCESS USAGE. Tenant shall, at its own cost and
expense, separately meter the Leased Premises and all the costs associated
therewith, including, among other things, the cost and expense of installing and
maintaining meters, engineering for such meters, panels, wiring and other items
required to accommodate excess services to Tenant, shall be Tenant's
responsibility. Provided that Tenant's annual usage of areas other than the
Switch Space and the NOC does not exceed 4,250 hours per year, Tenant will pay
for the direct utility cost of its central heating and air-conditioning usage
and its operating equipment. Any usage under 4,250
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hours during any year during the Term shall be credited forward to subsequent
years. For any usage beyond 4,250 in any lease year (plus any unused credit from
a prior year), Tenant agrees to pay, as additional rent, an hourly fee
reasonably determined by Landlord to compensate it for excessive equipment wear
and tear. An energy management system will be provided with an automatic
temperature control system utilizing a direct digital control system with a
central computer control to facilitate Tenant's operating hour flexibility and
costs.
Landlord shall allow Tenant to locate additional dedicated
emergency generator(s) adjacent to the building generator area on the west side
of the building and to provide Tenant with necessary access to the electrical
rooms. The site provides the option of utilizing diesel or natural gas. All
costs including engineering services to accommodate such generator placement and
installation will be paid for by Tenant.
7.6 NO INTERFERENCE. Without Landlord's prior review and written
consent, which consent shall not be unreasonably withheld, Tenant shall not
install or operate any electrical, internet, satellite, microwave, or other
systems that will or may necessitate any changes, replacements or additions to,
or changes in the use of, the water system, heating system, plumbing system,
air-conditioning system or electrical system of the Leased Premises or the
Building. Any changes, replacements or additions to those systems made necessary
by Tenant's installation or operation of any such utility systems shall be made
at Tenant's expense. Further and except as may otherwise be set forth herein, no
such electrical, internet, satellite, microwave, or other systems will interfere
with any other tenant in the Building or with any other buildings on the
Property.
7.7 TELECOMMUNICATIONS.
7.7(a) - Fiber optics feeds are available to service the
project by Xxxx Atlantic and MFS. Landlord shall install, at Tenant's cost,
among other things, four (4) 4" conduits to the Building with one (1) entry
point. In addition, Landlord will accommodate Tenant's need for dual access to
the Building with separate entry points with six (6) 4" conduits running to each
entry point as described in the Landlord's work agreement. Such conduit
installation is set forth in Exhibit L. Landlord shall allow Tenant access to
Tenant's conduit for maintenance and repair as long as such access does not
unreasonably disrupt the Base Building, other Tenant space or the Property;
Landlord shall allow Tenant similar access to Base Building conduit upon
reasonable notice.
7.7(b) - Tenant shall have the right to receive
telecommunication services from the vendor(s) of Tenant's choosing and Landlord
shall cooperate in accommodating such service and shall provide reasonable
access, unless an emergency exists, for such services. In the event any easement
rights controlled by Landlord are needed for any such services necessary for the
conduct of Tenant's business, Landlord will review such needs and use reasonable
consent to provide same without fees or charges to Tenant or the vendor, except
for the reimbursement of Landlord's actual costs. Any reasonable expenses
incurred by Landlord in securing and documenting such easements shall be
reimbursed by Tenant upon demand. Landlord, upon prior notice, shall provide
Tenant with free and unencumbered access to Tenant to all Building risers,
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conduits, shafts, etc. as needed by Tenant and approved by Landlord to connect
such service to the Leased Premises; provided that Tenant restores any portion
of the Building used for such purposes to its original condition and does not
interfere with any other tenants' use and enjoyment of the Building. Tenant
shall pay for the installation of any new entry points, penetrations for its
use.
7.8 SECURITY; ACCESS.
7.8(a) The Building will be equipped with a perimeter card
reader system installed and maintained by Kastle Systems or comparable vendor.
Tenant, at Tenant's cost, may install card readers at other entry points of the
Premises throughout the Building, subject to the reasonable approval of
Landlord. The elevators will be equipped with a "lock off" device and card
readers so that Tenant may override the "lock off" device with security cards
for after hours access. Cards will be issued to Tenant based on a not to exceed
ratio of four cards per 1,000 square feet of occupiable area leased.
7.8(b) Landlord shall also provide suite entry keys at the
same ratio as security cards. In the event Tenant requires more keys or cards
than the 4 per 1,000 square foot ratio, the cost of such additional keys or
cards to Tenant shall be at Landlord's actual direct cost of same.
7.8(c) Landlord hereby agrees to install and maintain a
reasonable access system for the Building. Tenant shall have the right to
install and maintain at its own cost and upon Landlord's approval an access
system of tenant's choice to protect Tenant's premises. Tenant hereby
acknowledges and agrees that neither the installation of an access system in the
Building, nor the continuance of any existing access system, shall in any way be
deemed to be a warranty by Landlord as to the sufficiency or adequacy of any or
all such systems as a security device, nor as an agreement by, or obligation of,
Landlord to protect, indemnify and/or hold harmless Tenant or any of Tenant's
partners, agents, officers, employees, licensees or invitees from any harm of
any type to ensure their safety.
7.9 MANAGEMENT. The Building will be managed by Xxxx Metropolitan,
LLC or such other manager as Landlord may designate. There will be an on-site
building staff which will include at a minimum a full-time chief engineer and an
engineer's assistant. The property management fee will be equal to three and
one-half percent (3-1/2%) of gross rents received annually and shall be included
as an Operating Expense. The property management will be of a level of service
commensurate with that found in similar first class mid-rise office buildings in
the Reston/Herndon area. In the event that the property management service does
not meet such standard, Tenant shall notify Landlord and the property management
company shall have thirty (30) days to cure such deficiency. If such deficient
service is not cured within such period, Tenant may require that Landlord
replace the property manager with a new property management company.
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ARTICLE VIII - REPAIRS AND MAINTENANCE
8.1 LANDLORD'S OBLIGATIONS. Landlord shall keep and maintain in good
repair and working order consistent with similar first class mid-rise office
buildings in the Reston/Herndon, Virginia area and make all repairs to and
perform necessary maintenance upon the structural components and elements, and
electrical, plumbing and mechanical systems, of the Building and all parts and
appurtenances, which are required in the normal maintenance and operation of the
Building, including, but not limited to, the exterior walls, load bearing
elements, foundation, pipes, conduits, roof, parking and other common areas, and
the mechanical, life/safety, electrical, central heating and air-conditioning,
and plumbing systems that are a part of the Base Building. The cost and expense
of any unusual maintenance or repair to the Building resulting from the acts or
omissions of Tenant or Tenant's agents, employees, contractors, invitees,
licenses or assignees, shall be reimbursed by Tenant to Landlord upon demand as
Additional Rent. Landlord shall not be responsible for ADA compliance with
respect to Tenant Work performed. Landlord shall not be obligated to make any
repairs not theretofore known by Landlord to be necessary until notified in
writing by Tenant, and Landlord shall then have a reasonable period of time to
make such repairs. Landlord shall not be liable for any damage or loss
occasioned by Landlord's failure to repair the Leased Premises unless it shall
have failed to make such repair within a reasonable time following its having
knowledge of the need for a repair or receipt of written notice from Tenant of
the need for such repair. If an emergency event or circumstance occurs that
threatens to materially interfere with Tenant's ability to operate its Equipment
for its intended use, the Landlord is required to take action to correct the
situation (a "Required Action") and Landlord has knowingly failed to provide or
commence the Required Action within the time period required by the Lease (or a
reasonable period of time, if no period of time is specified in the Lease) after
the receipt of notice, Tenant may proceed to take the Required Action pursuant
to the terms of the Lease. If any Required Action is taken by Tenant pursuant to
the terms of this section, then Landlord shall reimburse Tenant for its
reasonable and documented costs and expenses in taking the Required Action
within thirty (30) days after receipt by Landlord of an invoice from Tenant.
8.2 TENANT'S OBLIGATIONS. Tenant, at its sole cost and expense, shall
keep and maintain in good repair and working order and make all repairs to and
perform necessary maintenance within and upon the Leased Premises, including the
Tenant's improvements, and all parts and appurtenances thereof, which are
required in the normal maintenance and operation of the Leased Premises.
If Tenant fails to maintain and repair the Leased Premises,
Landlord may, on ten (10) days prior written notice (except that no notice shall
be required in case of emergency) enter the Leased Premises and perform such
repair and maintenance on behalf of Tenant. In such case, Tenant shall reimburse
Landlord for all reasonable costs so incurred immediately upon demand.
ARTICLE IX - ALTERATIONS; TENANT'S PROPERTY
9.1 ALTERATIONS BY TENANT. The term "Alterations" includes all
additions, replacements or improvements made after the completion of Tenant's
Work. Tenant shall make
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no Alterations without the express written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed. Landlord may require
Tenant to provide demolition and/or lien and completion bonds in form and amount
satisfactory to Tenant. All Alterations to the Leased Premises made by Tenant
will be accomplished in a good and workmanlike manner, in conformity with all
applicable laws and regulations, by a contractor reasonably approved by
Landlord, and except for trade fixtures shall become the property of the
Landlord at the expiration of the Term of this Lease. Landlord reserves the
right to require Tenant to remove any atypical Alterations made to the Leased
Premises by Tenant, and to repair and restore the Leased Premises to a condition
that existed prior to the Alterations; provided that Landlord and Tenant shall
be entitled to mutually revise the list of which Alterations are to remain
subsequent to the Lease Termination. Tenant shall give Landlord at least five
(5) days' prior written notice of the commencement of any work on the Leased
Premises. Landlord may elect to record and post notices of non-responsibility on
the Leased Premises.
Notwithstanding anything herein to the contrary, Tenant shall
have the right from time to time without Landlord's consent, but with notice and
provision of plans to Landlord, to perform Alterations that do not exceed
$75,000, and, regardless of cost, to: i) paint and install wall coverings, (ii)
install and remove office furniture, (iii) relocate existing electrical outlets,
(iv) install and remove workstations, (v) install and remove Tenant's equipment
and perform cable pulls in connection therewith and (vi) install and remove
carpeting and other floor coverings; provided that such alterations,
improvements or additions must not affect the base building structural,
mechanical, or electrical systems, in which case Tenant must receive Landlord
consent as provided above. For all Alterations Tenant must obtain all required
permits with copies sent to Landlord. Tenant's Alteration work must be
reasonably coordinated with the Landlord to avoid inconvenience and noise to
other tenants.
Whenever Alterations affect the Base Building, Landlord
consent and oversight is required; in such event, Tenant agrees to reimburse
Landlord for any reasonable out-of-pocket costs incurred by Landlord in
reviewing and overseeing such Alterations.
9.2 CONTRACTORS' INSURANCE REQUIREMENTS. In the event Landlord gives
its approval to Tenant pursuant to Section 9.1, Tenant shall require any third
party vendor or contractor performing work on the Leased Premises to carry and
maintain at no expense to Landlord: (a) Commercial General Liability Insurance
with a combined single limit of $3,000,000 bodily injury and property damage per
occurrence; (b) Auto Liability insurance with a combined single limit of
$1,000,000; and (c) Workers' Compensation insurance in accordance with
applicable state law and Employer's Liability insurance with limits of not less
than $100,000/$100,000/$500,000. Tenant shall obtain a Certificate of Insurance
prior to commencement of work and Landlord and Tenant are to be additional
insureds as respects the liability coverages.
9.3 TENANT'S PROPERTY. Provided no Event of Default shall have occurred
and is continuing hereunder, Tenant, at its expense. and at any time and from
time to time, may install in and remove from the Leased Premises its trade
fixtures, equipment, removable walls and wall systems, furniture and
furnishings, provided such installation or removal is accomplished
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without damage to the Leased Premises or the Building and the installation does
not materially interfere with the other tenants and their guests use of the
Building. On or prior to the expiration of the Lease Term or earlier termination
thereof, Tenant shall remove all of Tenant's property from the Leased Premises
and repair any damage to the Leased Premises caused by such removal.
ARTICLE X - HAZARDOUS MATERIALS
10.1 USE OF HAZARDOUS MATERIALS
10.1(a) - TENANT'S OBLIGATIONS AND LIABILITIES: Tenant shall
not cause or permit any Hazardous Material to be brought upon, kept or used in
or about the Leased Premises in violation of applicable law by Tenant, its
agents, employees, contractors, or invitees. If Tenant breaches this obligation,
the Tenant shall indemnify, defend and hold Landlord harmless from any and all
claims, judgments, damages, penalties, fines, costs or liabilities (including,
without limitation, diminution in value of the Leased Premises, damages for the
loss of restriction on use of rentable or usable space or of any amenity of the
Leased Premises, damages arising from any adverse impact on marketing of space,
and sum paid in settlement of claims, reasonable attorneys' fees, consultant
fees and expert fees) which arise during or after the lease Term as a result of
such contamination. This indemnification of Landlord by Tenant, includes,
without limitation, costs incurred in connection with any investigations of site
conditions or any clean-up, remedial, removal or restoration work required by
any federal, state or local governmental agency or political subdivision because
of Hazardous Material present in the soil or ground water on or under the Leased
Premises resulting from Tenant's breach of this Article. Without limiting the
foregoing, if the presence of Hazardous Material on the Leased Premises caused
by Tenant results in any contamination of the Leased Premises, Tenant shall
promptly take all actions at its sole expense as are necessary to return the
Leased Premises to the conditions existing prior to the introduction of any such
Hazardous Material in the Leased Premises, provided that Landlord's approval of
such actions shall first be obtained, which approval shall not be unreasonably
withheld so long as such actions would not potentially have any material adverse
long-term or short-term effect on the Leased Premises. The foregoing indemnity
shall survive the expiration or earlier termination of this Lease.
10.1(b) DEFINITION - As used herein, the term "Hazardous
Material" means any hazardous or toxic substance, material or waste, including,
but not limited to those substances, materials and wastes listed in the United
States Department of Transportation Hazardous Materials Table (49 CFR 172.101)
or by the Environmental Protection Agency as hazardous substances (40 CFR Part
261) and amendments thereto, or such substances, materials and wastes that are
or become regulated under any applicable local, state or federal law.
10.1(c) INSPECTION - Landlord and its property manager or
agents shall have the right, but not the duty, to inspect the Leased Premises at
any time to determine whether Tenant is complying with the terms of this
Article. If Tenant is not in compliance with this Article, Landlord shall have
the right to immediately enter upon the Leased Premises to remedy any
contamination caused by Tenant's failure to comply, notwithstanding any other
provisions of this
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Lease. Landlord shall use its best efforts to minimize interference with
Tenant's business but shall not be liable for interference caused thereby.
10.1(d) DEFAULT - An Event of Default under this Paragraph
shall be a material default enabling Landlord to exercise any of the remedies
set forth in this Lease.
10.2 LANDLORD'S WARRANTY: Landlord warrants that the Building
(other than the Leased Premises and other leased premises herein) shall be free
of any Hazardous Material other than that which is used in the ordinary course
of business and in accordance with applicable laws and shall endeavor to cause
other tenants within the Building to comply with all laws, rules and regulations
pertaining to Hazardous Materials. Landlord agrees that it will not cause any
Hazardous Materials to be brought upon, kept or used in or about the Building or
on the Property. If Landlord breaches this obligation, Landlord agrees to
indemnify Tenant and hold Tenant harmless in the same manner that Tenant
indemnifies and holds Landlord harmless pursuant to Section 10.1(a).
ARTICLE XI - ASSIGNMENT AND SUBLETTING
11.1 PROHIBITED TRANSFERS. Except as permitted herein, Tenant shall not
assign, transfer or encumber this Lease or any part hereof and shall not sublet,
grant licenses or concessions, nor allow any other occupant to come in, with or
under Tenant, nor shall Tenant permit this Lease or the leasehold estate hereby
created to become vested in or owned by any other person, firm or corporation by
operation of law or otherwise without the prior written consent of Landlord,
which consent shall not be unreasonably withheld, conditioned or delayed and
shall be given or denied within ten (10) business days after Tenant's written
notification to Landlord; provided Landlord has received all information
reasonably necessary on the prospective subtenant or assignee. within a
sufficient period of time to give its consent or denial. Any such assignment or
subletting shall only be approved under such conditions as Landlord may, in its
reasonable discretion, determine. Acceptance of rent by Landlord from anyone
other than Tenant shall not be construed as a waiver by Landlord of the actions
prohibited by this Section, nor as a release of Tenant from any obligation or
liability under this Lease. In the event Landlord consents to an assignment or
sublet by Tenant, Tenant, and any guarantor of Tenant, shall not be relieved
from its obligations under this Lease.
If Tenant is a partnership, a withdrawal or change, voluntary,
involuntary, or by operation of law, of the partner or partners owning a
majority of the partnership interest as of the date of this Lease, or the
dissolution of the partnership, shall be deemed an assignment prohibited by this
Article unless Landlord's consent is obtained.
If Tenant consists of more than one person, a purported assignment,
voluntary, involuntary, or by operation of law, from a majority of such persons
to the others shall be deemed an assignment prohibited by this Article unless
Landlord's consent is obtained.
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11.2 OPTION TO TERMINATE. In the event a sublease is for more than 50%
of the Leased Premises or has a duration for the remainder of the Term, in lieu
of giving any consent to such a sublet, Landlord may, at Landlord's option,
elect to terminate this Lease as to that portion of the Leased Premises that is
the subject of the proposed subletting. The effective date of any such
termination shall be the proposed effective date of any proposed subletting.
11.3 EXCESS RECEIPTS. One-half of any proceeds in excess of Base Rent
and Tenant's pro rata share of Additional Rent which is received by Tenant
pursuant to an assignment or subletting consented to by Landlord, less
reasonable brokerage commissions actually paid by Tenant, and less other
reasonable costs incurred by Tenant in connection with making the space
available for lease, shall be remitted to Landlord as Additional Rent within ten
(10) days of receipt by Tenant. Such reasonable costs shall include, but not be
limited to, the costs of leasehold improvements (hard and soft costs), legal
fees, brokerage commissions, advertising costs, free rent and other concessions.
In addition, all amortized costs of leasehold improvements not funded by
Landlord, equipment or other personal property paid for by Tenant shall be
factored in and may, at Tenant's option, be allocated to the space in which such
items serve or are located as opposed to being spread across the entire Leased
Premises. For purposes of this paragraph, all money or value in whatever form
received by Tenant from or on account of any party as consideration for an
assignment. or subletting shall be deemed to be proceeds received by Tenant
pursuant to an assignment or subletting. In the event of multiple assignments or
subleases, all profits to Tenant shall be calculated in the aggregate.
11.4 PROCESSING FEE. In the event Tenant requests Landlord to consent
to a proposed assignment, subletting, or encumbrance, Tenant shall pay to
Landlord, whether or not such consent is ultimately given, Landlord's reasonable
administrative fee in connection with such request, which fee shall be
determined by Landlord in its sole discretion, and which shall not be less than
Three Hundred Dollars ($300.00) nor more than Five Hundred Dollars ($500.00) for
each request for consent, plus Landlord's reasonable attorneys' fees and costs
incurred in connection with each such request. Tenant shall pay the
administrative fee at the same time that it provides notice to the Landlord of
Tenant's proposed assignment, subletting or encumbrance.
11.5 CUSTOMERS EQUIPMENT. Tenant shall have the right locate customer
equipment on the Leased Premises provided that such equipment is consistent with
all other terms and conditions of the Lease and such location shall not
constitute a subletting or assignment of the Leased Premises.
11.6 PERMITTED TRANSFERS. Notwithstanding anything herein to the
contrary and provided the provisions of Article XXVII remain in full force and
effect, Tenant shall have the right to sublease or assign all or a portion of
the Leased Premises to (i) any parent company, subsidiary, affiliate or related
corporate entity, (ii) a company with which Tenant has a teaming or other
business relationship (so long as Tenant continues to occupy at least 75% of the
Leased Premises and maintains a compatible use thereof with such company), or
(iii) an entity that is the result of a merger or acquisition (collectively,
"Permitted Transfers") without Landlord's prior written consent but with notice
to Landlord provided as soon as practicable after the effective date of the
subleasing or assignment. Landlord shall not be entitled to (i) any profits
received by
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Tenant for any Permitted Transfers, or (ii) recapture any portion of the Leased
Premises that are assigned or sublet in accordance with the Permitted Transfers.
ARTICLE XII - CASUALTY OR CONDEMNATION
12.1 PARTIAL DAMAGE OF LEASED PREMISES. Tenant shall notify Landlord in
writing immediately upon the occurrence of any damage to the Leased Premises.
(a) If the damage can be completely repaired within one hundred eighty (180)
days from the date of such damage, and the cost of such repairs do not exceed
fifty percent (50%) of the value of the Leased Premises (as reasonably
determined by Landlord), Landlord shall repair the damage as soon as reasonably
possible. (b) If Landlord determines that (a) does not apply, Landlord shall so
notify Tenant and (i) Tenant may, within fifteen (15) days after such notice,
elect to terminate the Lease as of the date the damage occurred; (ii) if Tenant
does not elect to terminate under (i), then within fifteen (15) days thereafter,
Landlord shall notify Tenant either that Landlord elects to terminate the Lease
as of the date of the damage or that Landlord will repair the damage as soon as
reasonably possible. If the damage to the Leased Premises occurs during the last
six (6) months of the Term, and if such damage or destruction is not the result
of the act or omission of Tenant, Landlord or Tenant may elect to terminate this
Lease. Notwithstanding the above, if the damage described in this Section 12.1
does not materially affect the Switch Area (being 1/2 of the first floor) then
if Landlord elects to terminate the Lease, Landlord cannot terminate with
respect to the Switch Area (unless Tenant elects to terminate the Switch Area
effective as of the termination date for the balance of the Premises).
12.2 TOTAL OR SUBSTANTIAL DESTRUCTION. If the Leased Premises are
totally or substantially destroyed by any cause whatsoever, or if the Building
is substantially destroyed (even though the Leased Premises is not totally or
substantially destroyed), this Lease shall terminate as of the date the
destruction occurred. However, if the Leased Premises can be rebuilt within one
(1) year after the date of destruction, Landlord may elect to rebuild the Leased
Premises at Landlords own expense, in which case, this Lease shall remain in
full force and effect. Landlord shall notify Tenant of such election within
thirty (30) days after the occurrence of the total or substantial destruction.
12.3 TEMPORARY REDUCTION OF RENT. If the Leased Premises is repaired
pursuant to the provisions of this Article, Rent payable during the period of
such damage, repair and/or restoration shall be reduced according to the degree,
if any, to which Tenant's use of the Leased Premises is impaired. Tenant shall
not be entitled to any other compensation, reduction, or reimbursement from
Landlord as a result of any damage, destruction, repair, or restoration of or to
the Leased Premises.
12.4 CONDEMNATION. If all or any portion of the Leased Premises is
taken through eminent domain or sold under threat of such taking (all of which
are called "Condemnation"), this Lease shall terminate as to the part taken or
sold on the date the condemning authority takes title or possession, whichever
occurs first. All income, rent, awards or interest derived from any such taking
or condemnation shall belong to and be the property of Landlord, and Tenant
hereby assigns Tenant's interest, if any, in such award to Landlord, except to
the extent that an award
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may be made to Tenant under applicable law and such award will not reduce
Landlord's award. If 20% or more of the Switch Area is subject to Condemnation,
Tenant may elect to terminate this Lease as to the entire Switch Area.
ARTICLE XIII - INDEMNIFICATION AND INSURANCE
13.1 INDEMNIFICATION BY TENANT. Except in the event of Landlord's
gross negligence or willful misconduct, Landlord shall not in any event be
responsible for loss of property from or for damage to person or property
occurring in or about the Leased Premises, however caused, including but not
limited to any damage from steam, gas, electricity, water, plumbing, rain, snow,
leakage, breakage or overflow, whether originating in the Leased Premises,
premises of other tenants, or any part of the Building whatsoever.
Notwithstanding Landlord's exculpation from liability for such adverse Building
conditions and occurrences, Landlord shall promptly respond to notification of
emergency situations wherein such conditions or occurrences threaten to cause
interruption or damage to Tenant's telecommunications equipment, including, if
necessary, entering into the premises of other tenants to cause the cessation of
such adverse conditions or occurrences.
Except in the event of Landlord's gross negligence or willful
misconduct, Tenant agrees to indemnify and hold harmless the Landlord from and
against all claims of whatever nature arising from any accident, injury or
damage to person or property during the Term of this Lease in or about the
Leased Premises or arising from any accident, injury or damage to personal
property occurring outside the Leased Premises but within the Building or any
other property of which the Leased Premises is a part, where such accident,
injury or damage results or is claimed to have resulted from an act, omission or
negligence on the part of Tenant, or on the part of any of its licensees,
agents, invitees, servants or employees. This indemnity agreement shall include
indemnity against all costs, claims, expenses, penalties, liens and liabilities
including reasonable attorneys' fees incurred in or in connection with any such
claims or proceedings brought thereon and the defense thereof.
13.2 TENANT'S INSURANCE. Tenant will maintain Commercial General
Liability insurance with respect to the Leased Premises naming Landlord as
additional insured, with a combined single limit of $3,000,000 bodily injury and
property damage per occurrence and $2,000,000 aggregate limit applicable to this
location, and auto liability insurance with a combined single limit of
$1,000,000. This insurance coverage shall extend to any liability of Tenant
arising out of the indemnities provided for in this Lease. Landlord shall be
named as an additional insured and the insurance shall be primary to any
insurance maintained by Landlord. Tenant shall deliver to Landlord a Certificate
of Insurance at least seven (7) days prior to the commencement of the Term of
this Lease and a renewal certificate at least seven (7) days prior to the
expiration of the Certificate it renews. Said Certificate must provide thirty
(30) days prior notice to Landlord in the event of material change or
cancellation. Tenant also agrees to maintain broad form Commercial Property
insurance coverage under ISO form CP1030 or like coverage under a non-ISO form
covering all Tenant's personal property, improvements and betterments to their
full replacement value and Worker's Compensation insurance in accordance with
applicable state law and Employer's Liability insurance with limits of not less
than
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$100,000/$100,000/$500,000. Tenant agrees that if its use and occupancy of the
Leased Premises cause the property insurer to raise premiums as a result of such
use or occupancy, then Tenant will directly reimburse the Landlord for the cost
of such increased premium. Tenant agrees to comply with all reasonable
recommendations from any insurer of the property that result as a direct result
of the Tenant's use of the Leased Premises.
13.3 SURVIVAL OF INDEMNITIES. Each indemnity agreement and hold
harmless agreement contained herein shall survive the expiration or termination
of this Lease.
13.4 WAIVER OF SUBROGATION. Notwithstanding anything contained in this
Lease to the contrary, if either party suffers a loss of or damage to property
in the Leased Premises or related to this Lease, which is covered by valid and
collectible insurance policies (or would be covered by policies which are
required hereunder or which would be required but for any specific provisions
for self-insurance or for a deductible), that party waives any claim therefor
which it may have against the other party or its employees, regardless of
whether negligence or fault of the latter party or its employees may have caused
the loss or damage. Each party will have its appropriate insurance policies
properly endorsed, if necessary, to prevent any invalidation of insurance
coverage required hereunder due to these mutual waivers.
13.5 LANDLORD'S INDEMNIFICATION. Landlord agrees to indemnify and hold
harmless the Tenant from and against all claims of whatever nature arising from
any accident, injury or damage to person or property during the Term of this
Lease in or about the common areas of the Building or arising from any accident,
injury or damage to personal property occurring within the common areas, where
such accident, injury or damage results or is claimed to have resulted from an
intentional act or omission or gross negligence on the part of Landlord, or on
the part of any of its licensees, agents, invitees, servants or employees
(exclusive of any other tenants and their agents, invitees, servants or
employees). This indemnity agreement shall include indemnity against all costs,
claims, expenses, penalties, liens and liabilities including reasonable
attorneys' fees incurred in or in connection with any such claims or proceedings
brought thereon and the defense thereof.
13.6 LANDLORD'S INSURANCE. Landlord shall, at all times during the Term
hereof, at its sole cost and expense (subject to reimbursement in accordance
with this Lease) procure and maintain in force commercially reasonable and
customary amounts (in light of typical amounts carried by comparable Buildings)
of insurance of the type commonly referred to as an "all risk of physical loss"
policy including flood or earthquake insurance, if applicable, and commercial
general liability insurance insuring the Building against all risks and all
other hazards as are customarily insured against, in Landlord's reasonable
judgment, by others similarly situated and operating like properties in the
Reston/Herndon, Virginia area. Landlord shall procure and maintain in force
(subject to reimbursement in accordance this Lease) a commercially reasonable
amount (or an amount as required by any underlying mortgage) of rental loss
insurance during the Term of this Lease. Upon a request by Tenant to Landlord
not more often than once each calendar year, Landlord shall deliver to Tenant
certificates evidencing the existence and amounts of insurance required to be
carried by Landlord pursuant to this section.
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ARTICLE XIV - RIGHT OF ENTRY
14.1 LANDLORD ACCESS. The Landlord reserves the right to use the
Building and every part thereof, and Tenant shall permit access to the Leased
Premises to Landlord, Landlord's property manager or Landlord's agents or
attorneys at all reasonable times (except as otherwise provided herein) for
inspection and cleaning and from time to time to repair as provided in Article
VIII, maintain, alter, improve and remodel, and to add additional offices to the
Building and each part thereof; the Tenant shall not be entitled to any
compensation, damages or abatement or reduction in Base Rent on account of any
such repairs, maintenance, alterations, improvements or remodeling or adding of
additional stories. The Landlord reserves the right at any time and from time to
time to enter, and be upon the Leased Premises for the purpose of examining
same. The Landlord shall have the right, at reasonable hours, and upon notice to
Tenant, to enter upon the Leased Premises or exhibit the same to prospective
tenants, lenders or insurers. For emergency purposes, and subject to reasonable
mutual consent, Tenant will provide Landlord with security access or bypass of
its security system.
14.2 LIMITATIONS ON ACCESS. Notwithstanding the provisions of Section
14.1, Landlord's access shall be limited as follows: (a) Landlord will notify
Tenant prior to the time of access except in case of emergency; (b) except in
the case of emergency, Landlord's access to the Switch Area shall be upon
reasonable notice and Landlord shall be accompanied by a representative of
Tenant; (c) unless otherwise agreed between Landlord and Tenant, Landlord's
access to the Premises to show the Premises to prospective tenants shall be
limited to the last nine (9) months of the lease term; and (d) Landlord will
provide reasonable notice to Tenant prior to entering the Premises to perform
any repairs, alterations, etc. required under the terms of this Lease and
Landlord agrees to use reasonable efforts to minimize any disruption to Tenant's
use or access to the Premises during such use. In addition, Landlord agrees to
use reasonable efforts to complete such work in a diligent and expeditious
manner.
ARTICLE XV - PROPERTY LEFT ON THE LEASED PREMISES
Upon the expiration of this Lease or if the Leased Premises should be
vacated at any time, or abandoned by the Tenant, or this Lease should terminate
for any cause, and at the time of such termination, vacation, or abandonment,
the Tenant or Tenant's agents, or any other person should leave any property of
any kind or character on or in the Leased Premises, the property shall be deemed
abandoned. Landlord, Landlord's property manager or Landlord's agents or
attorneys, shall have the right and authority without notice to Tenant, Tenant's
agents, or anyone else, to remove and destroy, or to sell or authorize disposal
of such property, or any part thereof, without being in any way liable to the
Tenant for the abandoned property. The abandoned property shall belong to the
Landlord as compensation for the removal and disposition of said property.
ARTICLE XVI - SIGNS AND ADVERTISEMENTS
No exterior signs, advertisements, posters on windows, decorations or
other fixtures shall be erected by Tenant without the prior written consent of
Landlord.
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Landlord shall provide Tenant with space on the Building directory in
the main lobby of the Building in direct proportion to the amount of space of
the Leased Premises. Landlord shall provide building standard suite entry
signage. In addition, Landlord shall grant Tenant the senior right to signage on
the Building to the maximum amount allowable by zoning ordinance. The precise
location, size and style of sign shall be subject to appropriate local codes and
permits, and to Landlord's written consent and approval (which shall not be
unreasonably withheld, conditioned or delayed), provided that Tenant shall be
allowed to place signage on the Building that is visible from the Dulles Access
Road. Such Tenant designated signage shall be set forth in documents prepared by
Tenant's architect and submitted to Landlord no later than the Tenant Signage
Submission Date. After determination of Tenant's signage configuration on the
Building, the Landlord may offer any remaining signage to other tenants. All
costs of installation, engineering therefor and removal shall be at Tenant's
sole expense. In the event Tenant should fail to renew the Lease in accordance
with Section 2.4 for the entire Leased Premises, such signage shall be reduced
proportionately. Also, if at any time the Premises are reduced to only the
Switch Area, Tenant's signage rights shall terminate.
ARTICLE XVII - NOTICES
Any notice, demand, request, consent, approval or communication under
this Lease shall be in writing and shall be deemed to have been duly given and
received at the time and on the date when personally delivered, or one (1) day
after being delivered to a nationally recognized commercial carrier service for
next-day delivery or three (3) days after deposit in the United States mail,
certified or registered mail with a return receipt requested, with all postage
prepaid, addressed to Landlord or Tenant (as the case may be) as follows:
If to Landlord: Xxxx Metropolitan, LLC
0000 Xxxxxxxx Xxxxx
Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxxx, Xx.
If to Tenant Net 2000 Communications Real Estate, Inc.
and/or Guarantor: 0000 Xxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Manager of Corporate Real Estate
Administration
With a copy to: NET 2000 Communications Real Estate, Inc.
0000 Xxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Legal Department
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With a copy to: The Irving Group
0000 Xxxxxxx Xxxxx Xxxx
Xxxxx 000 Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxx X. Xxxx
ARTICLE XVIII - MECHANIC'S LIENS
Tenant and any vendor, contractor or subcontractor performing work on
behalf of Tenant shall keep the Building, the Leased Premises, and the
improvements at all times during the Term of this Lease, free of mechanic's and
materialmen's liens and other liens of like nature. Tenant at all times shall
fully protect and indemnify Landlord against all such liens or claims and
against all reasonable attorneys' fees and other costs and expenses growing out
of or incurred by reason or on account of any such liens or claims. Should
Tenant, within fifteen (15) days after notice from Landlord, fail fully to
discharge any such lien or claim or, in the alternative, obtain a bond
sufficient to cover any such lien that may have been filed, Landlord, in its
sole discretion, may pay the same or any part thereof, and Landlord shall be the
sole judge of the validity of said lien or claim. All amounts so paid by the
Landlord, together with interest thereon at the rate of 10% from the time of
payment by Landlord until repayment by Tenant, shall be paid by Tenant upon
demand, and if not so paid, shall continue to bear interest at the aforesaid
rate, payable monthly as Additional Rent.
ARTICLE XIX - SUBORDINATION; ATTORNMENT
19.1 SUBORDINATION. Landlord may, from time to time, grant first lien
deeds of trust, security deeds, mortgages or other first lien security interests
covering its estate in the Building (each a "Mortgage"). Tenant agrees that this
Lease shall be subject and subordinate to each Mortgage, including any
modifications, extensions or renewals thereof and advances thereunder from time
to time in effect. The foregoing provisions shall be self operative, and no
further instrument of subordination shall be required to make this Lease subject
and subordinate to any Mortgage. Tenant shall, upon request, from time to time
execute and deliver to Landlord or the holder of any Mortgage any instrument
requested by Landlord or the holder of such Mortgage to evidence the
subordination of this Lease to any such Mortgage.
19.2 ATTORNMENT. Tenant agrees to recognize and attorn to any party
succeeding to the interest of Landlord as a result of the enforcement of any
Mortgage (including the transferee as the result of a foreclosure or deed in
lieu of foreclosure), and to be bound to such party under all the terms,
covenants, and conditions of this Lease, for the balance of the Term of this
Lease, including any extended term, with the same force and effect as if such
party were the original Landlord under this Lease. Landlord agrees to provide
Tenant with a commercially reasonable non-disturbance agreement in form
acceptable to Lincoln National Life and Tenant and from any other future lender
or ground lessor of the Building.
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19.3 CONFIRMING AGREEMENT. Upon the request of Landlord, Tenant agrees
to execute a subordination and attornment agreement incorporating the provisions
set forth above and otherwise in form reasonably acceptable to Landlord.
19.4 MORTGAGEE PROTECTION. Tenant agrees to give any mortgagees and/or
trust deed holders, by registered mail, a copy of any notice of default served
upon Landlord, provided that prior to such notice Tenant has been notified, in
writing (by way of Notice of Assignment of Rents and Leases, or otherwise), of
the address of such mortgagees and/or trust deed holders. Tenant further agrees
that if Landlord shall have failed to cure such default within the time provided
for in this Lease, then the mortgagees and/or trust deed holders shall have an
additional thirty (30) days within which to cure such default or, if such
default cannot be cured within that time, then such additional time as may be
reasonably necessary, if within such thirty (30) days any mortgagee and/or trust
deed holder has commenced and is diligently pursuing the remedies necessary to
cure such default (including, but not limited to, commencement of foreclosure
proceedings, if necessary to effect such cure), in which event this Lease shall
not be terminated while such remedies are being so diligently pursued.
ARTICLE XX - COMPLIANCE WITH LAW
AND RULES AND REGULATIONS
20.1 COMPLIANCE WITH LAWS.
20.1(a) - Tenant, at Tenant's expense, shall comply with all
laws, rules, orders, ordinances, directions, regulations and requirements of
federal, state, county and municipal authorities pertaining to Tenant's use of
the Leased Premises and with the recording covenants, conditions and
restrictions, regardless of when they became effective, including, without
limitation, all applicable federal, state and local laws, regulations or
ordinance pertaining to air and water quality Hazardous Materials (as
hereinafter defined), waste disposal, air emissions and other environmental
matters, all zoning and other land use matters, and utility availability, and
with any direction of any public officer or officers, pursuant to law, which
shall impose any duty upon Landlord or Tenant with respect to the use or
occupation of the Leased Premises.
20.1(b) - Landlord, at Landlord's expense, shall comply with
all laws, rules, orders, ordinances, directions, regulations and requirements of
Federal, state, county and municipal authorities pertaining to Landlord's use
and operation of the Building and the Property and in accordance with all
covenants, conditions and restrictions affecting the Building.
20.2 RULES AND REGULATIONS. The rules and regulations attached as
Exhibit J ("Rules and Regulations") are Landlord's Rules and Regulations for the
Building. Tenant shall faithfully observe and comply with such Rules and
Regulations and such reasonable changes therein (whether by modification,
elimination, addition or waiver) as Landlord may hereafter make and communicate
in writing to Tenant, which shall be necessary or desirable for the reputation,
safety, care or appearance of the Building or the preservation of good order
therein or the operation or maintenance of the Building or the equipment thereof
for the comfort of tenants or others in the Building. In the event of a conflict
between the provisions of this Lease and the
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Rules and Regulations, the provisions of this Lease shall control. In the event
another tenant of the Building or any of such tenant's agents continuously
violates the Rules and Regulations which materially interferes with Tenant's use
of or access to the Leased Premises, Landlord shall, upon receipt written notice
from Tenant of such violation, use its best efforts to enforce such Rules and
Regulations against such tenant.
ARTICLE XXI - LANDLORD'S LIEN
21.1 LANDLORD'S LIEN. Subject to Section 21.2, Tenant hereby grants
to Landlord, to secure payment by Tenant of all Base Rent, Additional Rent, and
all other payments to be made by Tenant under this Lease and the performance by
Tenant of all its other duties and obligations under this Lease, a first
priority lien and security interest in all equipment, trade fixtures, goods and
other tangible personal property now or hereafter owned by Tenant and located on
the Leased Premises, and all substitutions, replacements, additions and
accessions thereto and proceeds thereof. No such property shall be removed from
the Leased Premises until all Base Rent, Additional Rent and other amounts
payable under this Lease have been paid and until Tenant has fully and
completely performed all of the other duties and obligations of Tenant under
this Lease. Upon the occurrence of any Event of Default hereunder, Landlord
shall have, in addition to all other rights and remedies provided for herein or
allowed by law or in equity, all rights and remedies of a secured party under
the Uniform Commercial Code, including the right to sell any or all of the
property described above at one or more public or private sales upon providing
the notice required by the Uniform Commercial Code. Tenant agrees that ten (10)
days' prior notice of any such sale will constitute commercially reasonable
notice. Tenant shall, at the request of Landlord, execute and deliver such
additional documents as may be reasonably required, including Uniform Commercial
Code financing statements, to perfect the lien and security interest granted by
Tenant to Landlord herein. Any statutory lien for rent is not waived, the
express contractual lien and security interest herein granted being
supplementary thereto.
21.2 LANDLORD'S ACKNOWLEDGMENT OF THIRD PARTY- LIEN. Landlord
recognizes that Tenant shall be installing telephone switching equipment, and
furniture, fixtures and equipment (collectively the "Equipment"). Landlord
further recognizes that Tenant may, from time to time, finance and refinance
said Equipment. Accordingly, Landlord hereby (i) consents to the installation of
the Equipment; (ii) disclaims any interest in the Equipment; (iii) waives, in
favor of both Tenant and any party providing financing to Tenant for any
purpose, any lien, interest, and or right of Landlord in and to the Equipment,
whether statutory or possessory, whether arising by statute or at common law,
including but not limited to any "landlord's lien," and any right of execution,
attachment, levy or to distraint for rent. Landlord agrees that none of the
Equipment shall be deemed to be fixtures. Landlord agrees that it shall, at any
time and within a reasonable period of time after Tenant's request, execute,
acknowledge, and deliver to Tenant a statement in writing, in a form reasonably
acceptable to Tenant and Tenant's lender, confirming the waiver as provided
herein. Tenant agrees to reimburse Landlord for its reasonable attorneys' fees
incurred in reviewing and providing such written statement, in an amount not to
exceed Five Hundred Dollars ($500.00). Landlord further agrees that upon receipt
of proper documentation demonstrating a lender or equipment lessor's right to
remove the Equipment,
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Landlord shall allow the removal in a workmanlike manner without any
interference, damage or destruction to the premises or any other equipment
therein.
ARTICLE XXII - ESTOPPEL CERTIFICATE
Tenant shall from time to time, upon not less than ten (10) days prior
written notice by Landlord, execute, acknowledge and deliver to Landlord a
statement in substantially the form attached hereto as Exhibit D, prepared by
Landlord, its counsel, or Landlord's lender or such lender's counsel, in
executable form and with all information known to Landlord filled in:
22(a) - Certifying that this Lease is unmodified and in full
force and effect (or if there have been modifications, that the Lease is in full
force and effect as modified and stating the modifications).
22(b) - Stating the dates to which the Base Rent, Additional
Rent, and other charges hereunder have been paid by Tenant.
22(c) - Stating, to the best knowledge of Tenant, that
Landlord is not in default in the performance of any covenant, agreement or
condition contained in this Lease, and if Landlord is in default, specifying any
such default of which Tenant may have knowledge.
22(d) - Stating the address to which notices to Tenant should
be sent pursuant to Article XVII of this Lease.
Any such statement delivered pursuant hereto may be relied
upon by any owner of the Building and/or the Leased Premises, any prospective
purchaser of the Building and/or Leased Premises, any mortgagees or prospective
mortgagee of the Building and/or Leased Premises, any prospective assignee of
any such mortgagee, or any purchaser of Landlord, actual or prospective, of the
underlying land upon which the Building and Leased Premises are located.
ARTICLE XXIII - HOLDING OVER
If Tenant retains possession of the Leased Premises or any part thereof
after the termination of this Lease by lapse of time or otherwise without any
modification of this Lease or other written agreement between the parties,
Tenant shall be a month-to-month tenant (a) at one hundred ten percent (110%) of
the Base Rental Rate in effect at the termination date if such holdover is with
Landlord's consent and (b) at two hundred percent (200%) of the Base Rental Rate
in effect on the termination date if such holdover is without Landlord's
consent; in addition, under this paragraph (b), Tenant shall pay to Landlord all
direct and consequential damages sustained by Tenant's retention of possession,
including but not limited to lost rentals, leasing fees, advertising costs,
marketing costs, Tenant finish expense and relocation costs. There shall be no
renewal of this Lease by operation of law.
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ARTICLE XXIV - MUTUAL STATUS
Tenant and Landlord represent and warrant to each other that with
respect to itself:
24.1 POWER AND AUTHORITY. Each has the right, power and authority
to execute and deliver this Lease and to perform the provisions hereof, and is,
to the extent required, qualified to transact business and in good standing
under the laws of the Commonwealth of Virginia.
24.2 AUTHORIZATION. The execution of the Lease by each of them, or
by the persons or other entities executing them on behalf of each of them,
respectively, and the performance of their respective obligations under the
Lease in accordance with the provisions hereof have been, to the extent
required, duly authorized by all necessary legal action.
ARTICLE XXV - DEFAULTS AND REMEDIES
25.1 DEFAULT BY TENANT. There shall be an "Event of Default" under
this Lease if:
25.1(a) - Tenant shall fail to pay when due any Base Rent,
Additional Rent, or other payment to be made by Tenant under this Lease within
five (5) days after written notice from Landlord that the same is overdue.
25.1(b) - Tenant violates or breaches, or fails to fully and
completely observe, keep, satisfy, perform and comply with, any agreement, term,
covenant, condition, requirement, restriction or provision of this Lease within
thirty (30) days after written notice from Landlord that such Event of Default
exists or such additional time as may be reasonably necessary to complete a
cure, provided Tenant is diligently pursuing such cure.
25.1(c) - Tenant fails to take possession of or cease to do
business in or abandon any substantial portion of the Leased Premises (provided,
however, that Tenant shall not be deemed to have "abandoned" the Premises so
long as Tenant performs all of its obligations hereunder, including without
limitation paying Rent and maintaining the Premises.).
25.1(d) - Tenant becomes insolvent, or makes an assignment for
the benefit of creditors; or any action is brought by Tenant seeking its
dissolution or liquidation of its assets or seeking the appointment of a
trustee, interim trustee, receiver or other custodian for any of its property.
25.1(e) - Tenant commences a voluntary proceeding under the
Federal Bankruptcy Code, or any reorganization or arrangement proceeding is
instituted by Tenant for the settlement, readjustment, composition or extension
of any of its debts upon any terms; or any action or petition is otherwise
brought by Tenant seeking similar relief or alleging that it is insolvent or
unable to pay its debts as they mature; or if any action is brought against
Tenant seeking its dissolution or liquidations of any of its assets, or seeking
the appointment of a trustee, interim trustee, receiver or other custodian for
any of its property, and any such action is
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consented to or acquiesced in by Tenant or is not dismissed within 3 months
after the date upon which it was instituted.
25.2 LANDLORD REMEDIES. On the occurrence of any Event of Default
by Tenant, Landlord may, at any time thereafter, with or without notice or
demand, and without limiting Landlord in the exercise of any right or remedy
which Landlord may have:
25.2(a) - Terminate Tenant's right to Possession of the Leased
Premises, in which case Tenant shall immediately surrender possession of the
Leased Premises to Landlord. In such event, Landlord shall be entitled to
recover from Tenant all damages incurred by Landlord by reason of the Event of
Default, including (i) the worth at the time of the court award of the unpaid
Base Rent, Additional Rent and other charges which had been earned at the time
of the termination; (ii) the worth at the time of the court award of the amount
by which the unpaid Base Rent, Additional Rent and other charges which would
have been earned after termination until the time of the award exceeds the
amount of such rental loss that Tenant proves could have been reasonably
avoided; (iii) the worth at the time of the court award of the amount by which
the unpaid Base Rent, Additional Rent and other charges which would have been
paid for the balance of the Term after the time of award exceeds the amount of
such rental loss that Tenant proves could have been reasonably avoided; and (iv)
such other amounts as are necessary to compensate Landlord for the detriment
caused by Tenant's failure to perform its obligations under the Lease,
including, but not limited to, the cost of recovering possession of the Leased
Premises, expenses of reletting, including necessary renovation or alteration of
the Leased Premises, Landlord's reasonable attorneys' fees incurred in
connection therewith, and any real estate commission paid or payable. As used
above, the "worth at the time of the court award" is computed by allowing
interest on unpaid amounts at the rate of twelve (12%) per annum, or such lesser
amount as may then be the maximum lawful rate;
25.2(b) - Maintain Tenant's right to possession, in which case
this Lease shall continue in effect whether or not Tenant shall have abandoned
the Leased Premises. In such event, Landlord shall be entitled to enforce all of
Landlord's rights and remedies under this Lease, including the right to recover
the Base Rent and Additional Rent as it becomes due hereunder.
25.2(c) - Elect to terminate the Lease. No such termination of
this Lease shall affect Landlord's rights to collect Base Rent, Additional Rent
or other amounts due for the period prior to termination. In the event of any
termination, in addition to any other remedies set forth above, Landlord shall
have the right to recover from Tenant upon such termination an amount equal to
the excess of the Base Rent, Additional Rent and other amounts to be paid by
Tenant during the remaining Term of this Lease over the then reasonable rental
value of the Leased Premises for the remaining Term of this Lease, discounted to
present value using a reasonable discount rate.
25.2 (d) - Pursue any other remedy now or hereafter available
to Landlord under the laws or judicial decisions of the state in which the
Leased Premises is located. Landlord's exercise of any right or remedy shall not
prevent it from exercising any other right or remedy.
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No action taken by or on behalf of Landlord under this section shall be
construed to be an acceptance of a surrender of this Lease.
25.3 LANDLORD'S COSTS: ATTORNEYS' FEES. Tenant shall pay all costs
and expenses incurred by Landlord as a result of any breach or Event of Default
by Tenant under this Lease, including court costs and reasonable attorneys' fees
paid by Landlord.
25.4 REMEDIES CUMULATIVE. The foregoing remedies are cumulative of,
and in addition to, and not restrictive or in lieu of, the other remedies
provided for herein or allowed by law or in equity, and may be exercised
separately or concurrently, or in any combination, and pursuit of any one or
more of such remedies shall not constitute an election of remedies which shall
exclude any other remedy available to Landlord.
25.5 NON-WAIVER. Landlord's forbearance in pursuing or exercising
one or more of its remedies shall not be deemed or construed to constitute a
waiver of any Event of Default or any remedy, and no waiver by Landlord of any
right or remedy on one occasion shall be construed as a waiver of that right or
remedy on any subsequent occasion or as a waiver of any right or remedy then or
thereafter existing. No failure of Landlord to pursue or exercise any of its
rights or remedies or to insist upon strict compliance by the Tenant with any
term or provision of this Lease, and no custom or practice at variance with the
terms of this Lease, shall constitute a waiver by Landlord of the right to
demand strict compliance with the terms and provisions of this Lease.
ARTICLE XXVI - MISCELLANEOUS
26.1 NO PARTNERSHIP. Nothing contained in this Lease shall be
deemed or construed to create a partnership or joint venture of or between
Landlord and Tenant, or to create any other relationship between the parties
hereto other than that of Landlord and Tenant.
26.2 NO REPRESENTATIONS BY LANDLORD. Neither Landlord, Landlord's
property manager, or any agent or employee of Landlord has made any
representations or promises with respect to the Leased Premises or Building
except as set forth in this Lease, and no rights, privileges, easements or
licenses are acquired by Tenant except as herein expressly set forth.
26.3 WAIVER OF JURY TRIAL. Landlord and Tenant hereby waive trial
by jury in any action, proceeding or counterclaim brought by either of the
parties hereto against the other on or in respect to any matter whatsoever
arising out of or in any way connected with this Lease, the relationship of
Landlord and Tenant hereunder, Tenant's use of occupancy of the Leased Premises,
and/or any claim of injury or damage.
26.4 SEVERABILITY OF PROVISIONS. If any clause or provision of this
Lease shall be determined to be illegal, invalid or unenforceable under the
present or future laws effective during the Term hereof, then and in that event
it is the intention of the parties that the remainder of this Lease shall not be
affected by the invalid clause and shall be enforceable to the fullest extent of
the law, and it is also the intention of the parties to this Lease that in place
of any such
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clause or provision that is illegal, invalid, or unenforceable there be added as
a part of his Lease a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be legal,
valid and enforceable.
26.5 INTERIOR CONSTRUCTION. Unless the Leased Premises are leased
"as is", the construction of the Tenant's space, including any Tenant finish or
improvements shall be completed pursuant to Exhibits C and D.
26.6 RELOCATION OF LEASED PREMISES. Landlord shall not have the
right to relocate Tenant at any time.
26.7 BENEFITS AND BURDENS. The provisions of this Lease shall be
binding upon, and shall inure to the benefit of, the parties hereto and each of
their respective representatives, permitted successors and permitted assigns.
Landlord shall have the right, at any time and from time to time, to freely and
fully assign all or any part of its interest under this Lease for any purpose
whatsoever. Neither Landlord nor any owner of any interest in Landlord whether
disclosed or undisclosed, shall be under any personal liability with respect to
any of the provisions of this Lease. If Landlord is in breach or default with
Tenant's obligations under or in connection with this Lease or otherwise, Tenant
shall look solely to the equity of Landlord in the Leased Premises for the
satisfaction of Tenant's remedies.
26.8 LANDLORD'S LIABILITY. The Obligations of the Landlord under
this Lease do not constitute personal obligations of Landlord or of the
individual members, partners, joint venturers, directors, officers, shareholders
or beneficial owners of the Landlord, and Tenant shall look solely to the
Building and to no other assets of the Landlord for satisfaction of any
liability in respect to this Lease. Tenant will not seek recourse against
Landlord or such individual entities or such other assets for such satisfaction.
As used in this Lease, the term "Landlord" means only the current owner or
owners of the fee title to the Leased Premises or the leasehold estate under a
ground lease of the Leased Premises at the time in question. Any Landlord who
transfers its title or interest is relieved of all liability with respect to the
obligations of Landlord under this Lease to be performed on or after the date of
transfer. However, each Landlord shall deliver to its transferee, by actual
transfer or appropriate credits, all funds previously paid by Tenant if such
funds have not yet been applied under the terms of this Lease.
26.9 BROKERAGE. This Lease has been negotiated through the agency
of Insignia/ESG and The Irving Group. Tenant warrants and represents to Landlord
that The Irving Group solely represented Tenant's interests in this Lease and
that no other brokers were involved with the leasing of the Leased Premises or
the negotiation of this Lease or is entitled to any commission in connection
herewith. Tenant agrees to indemnify and hold Landlord harmless against any
other claims (including court costs and reasonable attorneys' fees) for
commissions by any other brokers. Landlord shall pay all commissions or
compensation to Insignia/ESG and The Irving Group pursuant to a separate
agreement.
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26.10 RECORDING. Either Landlord or Tenant may record this Lease at
the sole expense of the party requiring such recording. Either party shall, upon
request of the other party, execute, acknowledge and deliver a short-form
memorandum of this Lease for recording purposes.
26.11 GOVERNMENTAL SURCHARGE. Tenant agrees to pay as Additional
Rent upon demand, its pro rata share of any parking charges, regulatory fees,
utility surcharges, or any other costs levied, assessed or imposed by, or at the
direction of, or resulting from statutes or regulations, or interpretations
thereof, promulgated by any federal, state, municipal or local government
authority in connection with the use or occupancy of the Leased Premises or the
parking facilities serving the Leased Premises. Tenant's pro rata share is to be
based upon the square footage set forth in Section 3.4 of this Lease.
26.12 SURRENDER OF PREMISES. Upon termination of this Lease, by
expiration of Term, or otherwise, Tenant shall redeliver to Landlord the Leased
Premises broom clean and in good order and condition, ordinary wear and tear and
damage by casualty excepted. Tenant shall remain liable for non-consensual
holdover rent until the Leased Premises shall be returned in such order to
Landlord.
26.13 INTERPRETATION. The captions of the Sections and Articles of
this Lease are to assist the parties in reading this Lease and are not a part of
the terms or provisions of this Lease. Whenever required by the contents of this
Lease, the singular shall include the plural and the plural shall include the
singular. The masculine, feminine and neuter genders shall each include the
other. In any provision relating to the conduct, acts or omissions of Tenant,
the term "Tenant" shall include Tenant's agents, employees, contractors,
invitees, successors or others using the Leased Premises with Tenant's expressed
or implied permission.
26.14 SPECIAL PROVISIONS. [INTENTIONALLY OMITTED]
26.15 ENTIRE AGREEMENT. It is understood that there .are no oral
agreements between the parties hereto affecting this Lease, and this Lease
supersedes and cancels any and all previous negotiations, arrangements,
brochures, agreements and understanding, if any, between the parties hereto or
displayed by Landlord to Tenant with respect to the subject matter thereof, and
none hereof shall be used to interpret or construe this Lease. All amendments to
this Lease shall be in writing and signed by all parties. All waivers must be in
writing and signed by the waiving party. Landlord's failure to enforce any
provision of this Lease or its acceptance of Rent shall not be a waiver and
shall not prevent Landlord from enforcing that provision or any other provision
of this Lease in the future. No statement on a payment check from Tenant or in a
letter accompanying a payment check shall be binding on Landlord. Landlord may,
with or without notice to Tenant, negotiate such check without being bound to
the conditions of such statement.
26.16 FORCE MAJEURE. Whenever a period of time is herein prescribed
for action to be taken by Landlord or Tenant, the party taking the action shall
not be liable or responsible for, and there shall be excluded from the
computation for any such period of time, any delays due to strikes, riots, acts
of God, shortages of labor or materials, war, governmental laws, regulations or
restrictions or any other causes of any kind whatsoever which are beyond the
reasonable control
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of such party; provided, however, in no event shall the foregoing apply to the
financial obligations of either Landlord or Tenant to the other under this
Lease, including Tenant's obligation to pay Basic Rent, Additional Rent or any
other amount payable to Landlord hereunder.
26.17 CHOICE OF LAW. The laws of the Commonwealth of Virginia shall
govern the validity, performance and enforcement of this Lease.
26.18 SUBMISSION OF LEASE. The submission of this Lease to Tenant
for examination does not constitute an offer to lease or a reservation of space.
No agreement between Landlord and Tenant relating to the leasing of the Leased
Premises shall become effective or binding until executed by both parties and
received by Tenant.
26.19 TIME OF ESSENCE. Time of the essence with respect to each of
Tenant's obligations hereunder.
26.20 FINANCIAL STATEMENTS. Tenant acknowledges that it has provided
Landlord with its financial statement(s) as a primary inducement to Landlord's
agreement to lease the Leased Premises to Tenant, and that Landlord has relied
on the accuracy of said financial statement(s) in entering into this Lease.
Tenant represents and warrants that the information contained in said financial
statement(s) is true, complete and correct in all material aspects, and agrees
that the foregoing representations shall be a precondition to this Lease. Tenant
and Guarantor further acknowledge that they have provided to Landlord financial
statements for the two months ending February 28, 1999.
At the request of Landlord, Tenant shall, (a) not later than ninety (90) days
following the close of each fiscal year of Tenant during the Term of this Lease,
or (b) at such other times when Landlord intends to sell the Building and thus
Tenant's and/or Guarantor's financial condition is relevant, furnish to Landlord
a balance sheet of Tenant and/or Guarantor as of the end of such fiscal year (or
most recent reporting period, if (b) is applicable) and a statement of income
and expense for the year then ended (or most recent reporting period, if (b) is
applicable), together with a certificate of the chief financial officer, owner
or partner of Tenant (and/or of Guarantor, if so required by Landlord) to the
effect that the financial statements have been prepared in conformity with
generally accepted accounting principles consistently applied and which fairly
present the financial condition and results of operations of Tenant and/or
Guarantor as of and for the periods covered. If Tenant or Guarantor is or
becomes a publicly-held company, Tenant shall not be required to disclose
financial information to Landlord other than at the time and in the form and
content as is made available by Tenant or Guarantor to the public pursuant to
applicable securities laws and regulations. In the event any transfer occurs (as
permitted by Article XI), the transferee shall, within ten (10) days of such
transfer, and at applicable times thereafter, provide financial statements in
the form required by this paragraph.
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ARTICLE XXVII - GUARANTY
The Guarantor on behalf of itself and its successors and assigns,
hereby unconditionally guarantees to Landlord, its successors and assigns, the
full performance and observance of all the covenants, terms, conditions and
agreements required to be performed and observed by the Tenant, its successors
and assigns, under the Lease. Guarantor expressly agrees that (a) the validity
of this guaranty and the obligations of the Guarantor hereunder shall in no way
be terminated, affected or impaired by reason of the assertion by Landlord
against the Tenant of any of the rights or remedies reserved to Landlord
pursuant to the provisions of the Lease, all of which may be pursued or carried
out without notice to Guarantor, (b) this Guaranty shall remain and continue in
full force and effect as to any amendment, modification, renewal or extension of
the Lease made by the Tenant, to all of which the undersigned hereby consent in
advance, (c) no assignment, sublease or transfer of the Lease shall operate to
extinguish or diminish the liability of the undersigned under this Guaranty
unless otherwise agreed to by Landlord or any successor landlord, and (d) this
Guaranty is direct, immediate and primary and is one of payment and performance,
and not just collection, and the obligations of Guarantor hereunder shall not be
affected by any bankruptcy, arrangement, reorganization or similar proceedings
for release of debtors under federal or state law affecting the tenant, or its
successors and assigns.
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IN WITNESS WHEREOF, these presents have been executed as of the day and
year first above written.
LANDLORD:
KDC-Dulles Tech, LLC Member
By: XXXX METROPOLITAN, LLC, Sole
By: /s/ Xxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxx Xxxxxxx
-------------------------------
Title: Authorized Representative
------------------------------
By: /s/ Xxxx X. Xxxxx, Xx.
------------------------------------
Name: Xxxx X. Xxxxx, Xx.
-------------------------------
Title: Authorized Representative
------------------------------
DATE: 5/26/99
---------------------------------------
TENANT:
Net 2000 Communications Real Estate, Inc.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: CFO
--------------------------------------
DATE: 5/17/99
---------------------------------------
GUARANTOR:
NET 2000 COMMUNICATIONS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------------
Title: CFO
--------------------------------------
DATE: 5/17/99
---------------------------------------
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