1
EXHIBIT 10.24
DEED OF LEASE
0000 Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
THIS DEED OF LEASE made and entered into on this the third (3rd) day of
September, 1997 by and between XXXXXXX PROPERTIES, INC. whose address for
purposes hereof is 0000 Xxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000 hereinafter
called "Lessor", and ABOVENET COMMUNICATIONS, INC., a California corporation
hereinafter called "Lessee".
WITNESSETH, that for and in consideration of the rents, mutual covenants
and agreements hereinafter set forth, the parties hereto do hereby mutually
agree as follows:
1. DEMISED PREMISES
The Lessor does hereby lease to Lessee, and Lessee does hereby lease from
Lessor, for the term and upon the conditions hereinafter provided, approximately
twelve thousand five hundred ninety (12,590) square feet of rentable area on the
B-2 level of the office building (the "Building") situated on that certain
parcel of real estate (the "Land") at 0000 Xxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx
00000 (such space being hereinafter referred to as the "Demised Premises"), the
Land and Building being herein referred to as the "Property." The Demised
Premises have been assigned Suite #B-290, and are outlined in red on the plan
attached hereto and made a part hereof as Exhibit A.
2. TERM
(a) Subject to and upon the terms and conditions set forth herein,
or in any exhibit or addendum hereto, this Lease shall continue in force for a
term of six (6) years, beginning on the earlier of (i) substantial completion of
the Tenant's Work, or (ii) September 15, 1997 (the "Commencement Date"), and
ending (subject to the terms hereof) on the day preceding the sixth (6th)
anniversary of the Commencement Date (the "Initial Term", the Initial Term
together with the Renewal Term, if any, being herein referred to as the "Lease
Term").
(b) In the event the Demised Premises are not completed in
accordance with the provisions of this lease and ready for occupancy by said
Commencement Date, for any reason or cause, Lessor, its agents and employees,
shall not be liable or responsible for any claims, damages, or liabilities in
connection therewith or by reason thereof, nor shall the obligations of the
Lessee provided herein be excused, except the payment of Rent and the date of
commencement of the other obligations under this Lease shall be extended one (1)
day for each day of delay attributable to the wrongful acts of Lessor (Lessee
acknowledging that the mere failure to complete the Tenant's Work by the
Commencement Date shall not be deemed wrongful, so long as Lessor has exercised
commercially reasonable efforts to complete the same). When the Demised Premises
are occupied by Lessee, Lessor and Lessee will execute a declaration specifying
the commencement and termination date determined as provided above (Exhibit D),
but the failure to execute the same shall not affect this Lease.
3. USE
Lessee will use and occupy the Demised Premises solely for the
installation and operation of computer equipment only and for no other purpose
whatsoever. Lessee will not use the Demised Premises in any manner which will
annoy or interfere with other tenants in the Building and will comply with the
Rules and Regulations listed under Exhibit C. Lessee will not use or
2
occupy the Demised 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 of Virginia, the Fire Xxxxxxxx and any other public
authority having jurisdiction over the Demised Premises that may affect the
Demised Premises or Lessee's use and/or occupancy thereof. In no event shall
Lessee generate, manufacture, prepare, use, store, treat or dispose of any
polychlorinated biphenyls ("PCB's"), petroleum products or asbestos, or any
hazardous, radioactive, carcinogenic, or toxic chemicals, substances pollutants,
contaminant, materials or waste, including storage tanks and/or containers
thereof, as such terms are defined under applicable Federal, state and local
laws, ordinances or regulations, in or on the Demised Premises or the Building
on the Property upon which the Demised Premises is located or any portion
thereof, nor shall Lessee use, or suffer the Demised Premises to be used, for
industrial or manufacturing purposes. In the event of any breach of this Section
3, Lessee agrees to defend, indemnify and hold Lessor harmless from and against
any and all claims, damages, expense and liability incurred as a result,
including, but not limited to, costs and attorneys' fees incurred by or on
behalf of Lessor to (i) cure Lessee's breach of this Section 3, (ii) remediate
the effects of Lessee's breach, or (iii) to bring Lessee into compliance with
any and all federal, state and municipal orders, ordinances, laws, and
regulations. The foregoing indemnity shall be deemed to survive the expiration
of this Lease.
4. RENTAL
The monthly Rent to be paid for the Demised Premises during the Lease
Term, which Lessee hereby agrees to pay to Lessor in advance, and Lessor hereby
agrees to accept, shall be the sum of Ten Thousand Four Hundred Ninety-One and
sixty-seven/one hundredths Dollars ($10,491.67) per month, payable on the first
day of each calendar month during the Lease Term commencing with the
Commencement Date; provided that (i) for each of the first (1st) six (6) months
of the Initial Term in which Lessee shall not utilize more than one-third (1/3)
of the Demised Premises, Landlord agrees to xxxxx the sum of Six Thousand Nine
Hundred Ninety-Four and forty-five/one hundredths Dollars ($6,994.45), and (ii)
for each of the next six (6) months of the Initial Term in which Lessee shall
not utilize more than two-thirds (2/3) of the Demised Premises, Landlord agrees
to xxxxx the sum of Three Thousand Four Hundred Ninety-Seven and twenty-two/one
hundredths Dollars ($3,497.22). Monthly rent payable under this Section 4 shall
be hereinafter referred to as "Monthly Base Rent." Such Monthly Base Rent shall
be subject to escalation as hereinafter provided. If the obligation of the
Lessee to pay Rent hereunder begins on a day other than on the first day of a
month, Rent from such date until the first day of the following month shall be
prorated at the rate of one-thirtieth (1/30) of the Monthly Base Rent for each
day payable in advance. The Lessee will pay Rent without demand, by check to the
Lessor or to such other party or to such other address as Lessor may designate
from time to time by written notice to Lessee, without demand and without
deduction, set-off or counterclaim. If Lessor shall at any time or times accept
said Rent after it shall become due and payable, such acceptance shall not
excuse delay upon subsequent occasions, or constitute, or be construed as, a
waiver of any or all of the Lessor's rights hereunder. The term "Rent" as used
herein shall mean each installment of Monthly Base Rent payable hereunder, all
additional Rent plus all other sums payable by Lessee to Lessor hereunder
(including, but not limited to, late charges and
-2-
3
interest).
5. BASE MONTHLY RENTAL RATE ESCALATION, BASED UPON INCREASES IN REAL
ESTATE TAXES, AND ANNUAL ESCALATION.
A. Definitions
1. Real Estate Taxes shall mean the aggregate amount of real
estate taxes and assessments, general and special, ordinary and extraordinary,
foreseeable or unforeseen, including assessments for public improvements and
betterments, real estate taxes upon any "air rights", front foot benefit
assessments, vault rents, sewer assessments, and special area taxes assessed,
levied or imposed with respect to the Land and the improvements located on the
Land in the manner in which such taxes and assessments are imposed, as of the
Commencement Date provided, that if because of any change in the taxation of
real estate or tax assessment (including, without limitation, any occupancy,
gross receipts or rental tax) is imposed upon Lessor or the owner of the Land
and/or Building, or upon or with respect to the Land and/or Building, or the
occupancy, rents or income therefrom, in substitution for, or in addition to,
any of the foregoing Taxes, such other tax or assessment shall be deemed part of
the Taxes. Real Estate Taxes shall not include any sales tax or excise tax
imposed by any governmental authority upon the Rent payable by Lessee hereunder,
and in the event that any sales tax or excise tax is imposed by any governmental
authority on the Rent payable by Lessee hereunder, such sales tax or excise tax
shall be paid by Lessee.
2. Monthly Base Rent shall mean the rate of Monthly Base Rent
originally fixed in Section 4 of this Lease on the date of execution thereof, as
such rate may be subsequently modified or supplemented in any way other than
under the provisions of Sections 5B and 5C hereof.
3. Lease Term shall be deemed to mean the period beginning
with the Commencement Date in accordance with Exhibit D and ending with the date
of the expiration in accordance with Exhibit D or sooner termination of this
Lease subject to the terms of this Lease.
4. Intentionally Omitted.
5. Base Year shall be the period January 1, 1996 to
December 31, 1996.
6. Comparison Year shall mean any twelve month period after
the Base Year which begins with the same first month as the Base Year.
7. Real Estate Tax Fiscal Year shall mean the period January 1
to December 31 (or such other period as hereafter may be duly adopted by the
State of Virginia and/or Fairfax County, Virginia, as the fiscal year for real
estate tax purposes; and wherever reference is hereinafter made to January 1, it
shall mean, in the case of such other fiscal year, the first day thereof).
8. Base Tax Year shall mean the Real Estate Tax Fiscal Year
commencing January 1, 1996 and ending December 31, 1996.
-3-
4
9. Base Real Estate Taxes shall mean the taxes payable for the
Base Tax Year.
10. Lessee's Proportionate Percentage shall mean nine and
ninety-four/one thousandths percent (9.094%) and shall represent the agreed
percentage of the Building for purposes of computing Lessee's allocable share of
any change in Real Estate Taxes provided hereunder.
B. Increases in Real Estate Taxes
During the Lease Term, Lessee shall pay to Lessor, as additional Rent,
Lessee's Proportionate Percentage of any increase during the Lease Term in Real
Estate Taxes (exclusive of the Allocated Taxes, as hereinafter defined) levied
on the Building and the Land on which the Building is situated over the Base
Real Estate Taxes; provided that, Lessee shall pay one hundred percent (100%) of
any increase in Real Estate Taxes levied on the Building and/or the Land on
which the Building is situated, to the extent attributable to Lessee's occupancy
of the Demised Premises, the equipment installed by Lessee within the Demised
Premises, and/or the business conducted therein by Lessee or the income derived
therefrom (the "Allocated Taxes"). Lessor shall submit to Lessee a Statement of
such tax increase and Lessee shall pay to Lessor its aforesaid percentage share
of such tax increase for the Real Estate Tax Fiscal Year of Fairfax County,
Virginia (currently January 1 to December 31) for which such tax increase is
effective and shall, commencing with the first monthly installment of Rent which
is due during such Real Estate Tax Fiscal Year, pay to Lessor as additional
monthly Rent, together with such monthly installment of Rent an amount equal to
one-twelfth (1/12) of Lessee's aforesaid percentage share of such annual
increase in Real Estate Taxes to be applied to Lessee's obligation thereafter
accruing under this Section. If the expiration date of this Lease does not
coincide with the last day of the Real Estate Tax Fiscal Year, the portion of
the increase in Real Estate Taxes payable by Lessee hereunder for the Real
Estate Tax Fiscal Year in which the expiration date occurs, shall be
appropriately adjusted and pro-rated between the Lessor and Lessee, based upon
the respective number of days in such Real Estate Fiscal Year prior to and after
the expiration date.
C. Operating Costs
Lessee shall be solely responsible for the payment of any and all costs,
expenses and fees arising directly or indirectly from or out of, or in
connection with, Lessee's occupancy of the Demised Premises, the equipment
installed by Lessee within the Demised Premises, and/or the business conducted
therein by Lessee (including, but not limited to, the cost of separately
metering all utilities to the Demised Premises), when and as due. In the event
any such costs, expenses and/or fees shall be incurred by or on behalf of
Lessor, Lessee shall reimburse Lessor for the same upon demand. It is the intent
of the parties hereto that the Rent payable under this Lease shall be an
absolutely net return to the Lessor and that the Lessee shall pay all costs and
expenses relating to the Demised Premises and the business carried on therein,
unless otherwise expressly provided in this Lease. Any amount or obligation
herein relating to the Demised Premises which is not expressly declared to be
that of the Lessor shall be deemed to be an obligation of the Lessee to be
performed by the Lessee at the Lessee's sole expense.
-4-
5
D. Base Rental Adjustment
Commencing with the first anniversary of the Commencement Date and on each
anniversary thereof throughout the term, Lessee's Monthly Base Rent shall be
increased by three percent (3%) of the previous year's Monthly Base Rent. Lessee
shall pay such increased Rent in monthly installments commencing with the
Monthly Base Rent payment then due.
E. Personal Property Taxes
Lessee shall pay before delinquency all taxes, assessments, license fees,
and other charges that are levied and assessed against Lessee's personal
property installed or located in or on the Demised Premises, and that become
payable during the term. On demand by Lessor, Lessee shall furnish Lessor with
satisfactory evidence of these payments.
If any taxes on Lessee's personal property are levied against Lessor or
Lessor's property, or if the assessed value of the Building and other
improvements in which the Demised Premises are located is increased by the
inclusion of a value placed on Lessee's personal property, and if Lessor pays
the taxes on any of these items or the taxes based on the increased assessment
of these items, Lessee, on demand, shall immediately reimburse Lessor for the
sum of the taxes levied against Lessor, or the proportion of the taxes resulting
from the increase in Lessor's assessment. Lessor shall have the right to pay
these taxes regardless of the validity of the levy.
In the event that any sales tax or excise tax is imposed by any
governmental authority on either the Rent payable by Lessee hereunder or on the
services provided under the Lease hereunder, such sales tax or excise tax shall
be paid by Lessee.
6. DEPOSIT
Simultaneously with the execution of this Lease, Lessee shall
deposit with Lessor the sum of Twenty Thousand Nine Hundred Eighty-Three and
thirty-four/one hundredths Dollars ($20,983.34), as a security deposit for the
performance by Lessee of the provisions of this Lease. Such deposit shall be
considered as security for the payment and performance by Lessee of all Lessee's
obligations, covenants, conditions and agreements under this Lease. In the event
of any default by Lessee hereunder, Lessor shall have the right, but shall not
be obligated, to apply all or any portion of the deposit to cure such default,
in which event Lessee shall be obligated to promptly deposit with Lessor the
amount necessary to restore the deposit to its original amount provided,
however, such defaults and Lessee's liability under this Lease shall thereby be
discharged only pro tanto and Lessee shall remain liable for any amounts that
said Security Deposit shall be insufficient to pay. If Lessee is not in default
at the expiration or termination of this Lease, Lessor shall return the security
deposit to Lessee. Lessor shall not be required to pay Lessee interest on the
security deposit. Notwithstanding the foregoing, in the event of the sale or
transfer of Lessor's interest in the Demised Premises or this Lease, Lessor
shall have the right to transfer the Security Deposit to the purchaser or
transferee provided that the purchaser or transferee shall agree to hold the
same in accordance with the terms hereof, in which event Lessee shall look only
to the new landlord for the return of the Security Deposit and Lessor shall
thereupon be released from all liability
-5-
6
to Lessee for the return of such Security Deposit.
7. ASSIGNMENT AND SUBLETTING
(a) Lessee shall not mortgage or encumber this Lease. Lessee shall
not assign or transfer this Lease, or grant any license or concession hereunder,
or sublet or permit the occupancy or use of the Demised Premises, or any part
thereof (each of the foregoing herein referred to as a "Transfer", and any
person or entity to whom a Transfer is made or proposed to be made being herein
referred to as a "Transferee"), by any person or entity other than Lessee and
its employees, or cause, permit or suffer any Transfer to occur by operation of
law or otherwise, without obtaining the prior written consent of Lessor. In no
event shall Lessee grant any partial assignment of Lessee's interest in this
Lease. Lessee shall deliver not less than thirty (30) days prior written notice
of any proposed Transfer, said notice to further specify the identity of the
proposed Transferee, the terms of the proposed Transfer and such other
information as Lessor may reasonably request. Any costs and expenses, including,
but not limited to, attorney's fees (which shall include the cost of any time
expended by Lessor's attorneys including in-house counsel) incurred by Lessor in
connection with any proposed Transfer shall be borne by Lessee and shall be
payable to Lessor as additional Rent.
(b) Subject to the other provisions of this Section 7, and provided
that (i) Lessee is not and has not been in default hereunder and (ii) Lessee
will remain in possession of in excess of fifty percent (50%) of the Demised
Premises, Lessor agrees that it will not unreasonably withhold or delay its
consent to a proposed sublease or assignment; provided that, notwithstanding the
foregoing, it shall be deemed reasonable for Lessor to withhold its consent to a
proposed Transfer if Lessor determines that: (A) the proposed Transferee or its
business is not of a type and quality suitable for a first-class office
building, (B) the proposed Transferee is a governmental or quasi-governmental
authority, a foreign government or international agency or other organization
entitled to sovereign or other immunity, (C) the proposed assignment or
sub-tenancy or the proposed assignee or subtenant would adversely affect the
other tenants of the Building or would impose an additional, material burden
upon Lessor in its operation of the Building, (D) the proposed Transfer would
impair the reputation of the Building as a first-class office building, (E) the
proposed Transferee has not been demonstrated to Lessor's satisfaction to have
sufficient financial capability and stability to perform its obligations under
this Lease and under such proposed assignment or sublease (as the case may be),
(F) the proposed Transfer would result in more than one (1) sublease being in
effect, (G) the Lease has previously been Transferred, (H) the proposed
Transferee is proposing to engage in a use which (i) is not permitted pursuant
to Section 3 hereof, (ii) is not permitted pursuant to applicable law to be
conducted by the proposed Transferee or within the Demised Premises (or such
lesser portion as is being sublet) or both, (iii) will violate any covenant,
condition, restriction or other matter of record affecting title to the
Building, or any other agreement, judgment or law by which Lessor or the
Building is bound, or (iv) will violate any "exclusive use" or other restrictive
covenant of any other lease of any portion of the Building, (I) the proposed
Transferee is proposing to manufacture, use, store or dispose of Hazardous
Materials in, on or upon the Demised Premises (or such lesser portion as is
being sublet), (J) the rent to be paid in connection with such Transfer
-6-
7
is less than the comparable rents then being charged for similar space in the
Building, or (K) Lessor's lender shall refuse to grant its consent to such
Transfer (if required). Notwithstanding anything herein contained, Lessee shall
have no right to make any Transfer to any person or entity with whom Lessor is
negotiating to lease space in the Building, or to any existing tenant or other
occupant of the Building.
(c) The consent by Lessor to any Transfer shall not be construed as
a waiver or release of Lessee from the terms of any covenant or obligation under
this Lease, nor shall the collection or acceptance of Rent from any Transferee
constitute a waiver or release of Lessee of any covenant or obligation contained
in this Lease, nor shall any such Transfer be construed to relieve Lessee from
giving Lessor said thirty (30) days notice or from obtaining the consent in
writing of Lessor to any further Transfer. Lessee hereby assigns to Lessor the
rent due from any Transferee and hereby authorizes each such Transferee to pay
said rent directly to Lessor; provided that so long as Lessee is not in default
hereunder, Lessee shall be authorized to collect the rent from each such
Transferee. Any costs and expenses, including, but not limited to, reasonable
attorney's fees (which shall include the cost of any time expended by Lessor's
attorneys including in-house counsel) incurred by Lessor in connection with any
proposed or purported Transfer shall be borne by Lessee and shall be payable to
Lessor as additional Rent.
(d) Without conferring any rights upon Lessee not otherwise provided
in this Section 7, in the event of a Transfer fifty percent (50%) of the excess
of any monthly base rent or other payment or consideration accruing to the
Lessee as a result of such Transfer (including, but not limited to, any lump sum
or periodic payment in any manner relating to such Transfer) above the Monthly
Base Rent payable by Lessee with respect to that portion of the Demised
Premises, shall, after deduction of Lessee's reasonable out-of-pocket costs for
brokerage commissions and tenant improvements paid by Lessee in connection with
such Transfer (such costs to be amortized on a straight-line basis over the term
of any sublease), be paid by Lessee to Lessor within ten (10) days following
receipt thereof by Lessee, as additional Rent.
(e) If Lessee is a corporation, then the sale, issuance or transfer
of any voting capital stock of Lessee or of any corporate entity which directly
or indirectly controls Lessee (unless Lessee is a corporation whose stock is
traded on the New York Stock Exchange or the American Stock Exchange or a
recognized national "over-the-counter" exchange) which shall result in a change
in the voting control of Lessee or the corporate entity which controls Lessee
shall be deemed to be an assignment of this Lease within the meaning of this
Section 7; provided that, so long as Tenant is not in default hereunder, neither
(i) the issuance of voting stock of Lessee through an initial public offering on
a nationally-recognized exchanged, or (ii) the issuance of voting stock of
Lessee to raise venture capital for Lessee's business, which does not result in
a change in the managerial control of Lessee, shall be deemed to be an
assignment of this Lease within the meaning of this Section 7. If Lessee is a
partnership or an unincorporated association, then the sale, issuance or
transfer of a majority interest therein, or the transfer of a majority interest
in or a change in the voting control of any partnership or unincorporated
association or corporation which directly or indirectly controls Lessee, or the
transfer of any portion or all of any general partnership or
-7-
8
managing partnership interest, shall be deemed to be an assignment of this Lease
within the meaning of this Section 7. Any attempted or purported Transfer in
violation of the foregoing, whether voluntary or involuntary or by operation of
law or otherwise, shall be null and void and shall not confer any rights upon
any purported Transferee, and shall, at Lessor's option, terminate this Lease
without relieving Lessee of any of its obligations hereunder for the balance of
the stated Term.
(f) Notwithstanding anything herein contained to the contrary, the
co-location of customer equipment in the Demised Premises in the ordinary course
of Lessee's business shall not be deemed to be an assignment or subletting.
However, Lessee shall be solely responsible for all risk of loss or damage to
any such equipment, and shall be solely responsible for any and all loss or
damage occasioned by the installation, operation, repair, maintenance and/or
removal of such equipment.
8. MAINTENANCE BY LESSEE
Lessee, subject to Sections 9, 10, and 20, at its cost shall keep the
Demised Premises and the fixtures and equipment therein in clean, safe and
sanitary condition, will take good care thereof, will suffer no waste or injury
thereto, and will, at the expiration or other termination of the term of this
Lease, surrender the same, broom clean, in the same order and condition in which
they are on the Commencement Date, ordinary wear and tear and damage by the
elements, fire and other casualty not due to the intentional or negligent acts
or omissions of Lessee or Lessee's agents, employees, contractors, licensees or
invitees (collectively, "Lessee's Agents") excepted; and upon such termination
of this Lease, Lessor shall have the right to re-enter and resume possession of
the Demised Premises. It is hereby understood and acknowledged by the parties
hereto that, except as expressly set forth in the Lease, Lessor is leasing the
Demised Premises to Lessee in "as is" condition with all faults, and that Lessor
has made no representations respecting the condition or suitability of the
Demised Premises or the Property not expressly contained herein. Except as
expressly set forth herein, Lessor shall have no liability to Lessee or any of
Lessee's Agents arising from the condition of the Property or the Demised
Premises, and Lessee shall defend, indemnify and hold Lessor harmless from and
against any claims, causes of action, damages and liability arising from the
condition of the Demised Premises or, to the extent caused by Lessee or Lessee's
Agents, the Property (exclusive of the Demised Premises). The foregoing
indemnity shall be deemed to survive the expiration of this Lease.
9. ALTERATIONS
(a) Lessee will not make or permit any alterations, decorations,
additions or improvements, structural or otherwise, in or to the Demised
Premises or the Building, without the prior written consent of Lessor, which
consent may be conditioned, inter alia, upon Lessee's agreement to remove the
same and restore the Demised Premises to its condition prior to the making of
such alterations, at Lessee's sole cost and expense, upon the expiration or
sooner termination of this Lease.
(b) If any mechanic's lien is filed against the Demised Premises, or
the real property of which the Demised Premises are a part, for work claimed to
have been done for, or materials claimed to have been furnished to, Lessee, such
-8-
9
mechanic's lien shall be discharged by Lessee within ten (10) days thereafter,
at Lessee's sole cost and expense, by the payment thereof or by filing any bond
required by law. Lessee shall promptly inform Lessor upon receipt, by Lessee, of
any notice of the filing of any such mechanics lien(s). If Lessee shall fail to
discharge any such mechanic's lien, Lessor may, at its option and without
inquiring into the validity thereof discharge the same and treat the cost
thereof as additional Rent payable with the monthly installment of Rent next
becoming due; it being hereby expressly covenanted and agreed that such
discharge by Lessor shall not be deemed to waive, or release, the default of
Lessee in not discharging the same. Lessee hereby covenants and agrees to
defend, indemnify and hold Lessor, the Demised Premises and the property upon
which the Demised Premises is constructed, harmless from and against any and all
claims, damages, cost, expense, liability, liens and other detriment which they
may suffer or which may arise by reason of the making of any such alterations,
decorations, additions or improvements. If any such alteration, decoration,
addition or improvement is made without the prior written consent of Lessor,
Lessor may correct or remove the same, and Lessee shall be liable for any and
all expenses incurred by Lessor in the performance of this work. All
alterations, decorations, additions or improvements in or to the Demised
Premises made by either party shall immediately become the property of Lessor
and shall remain upon and be surrendered with the Demised Premises as a part
thereof at the end of the Lease Term without disturbance, molestation or injury;
provided, however, that Lessee shall have the right to remove, prior to the
expiration or termination of the Lease Term, movable furniture, furnishings or
equipment installed in the Demised Premises at the expense of Lessee, so long as
at all times the fair market value of the personal property of Lessee remaining
upon the Demised Premises shall equal not less than one hundred fifty percent
(150%) of the value of the remaining rental obligations of Lessee hereunder, and
if such property of Lessee is not removed by Lessee prior to the expiration or
termination of this Lease the same shall become the property of Lessor and shall
be surrendered with the Demised Premises as a part thereof. In the event of a
termination or expiration of this Lease, Lessor agrees to permit customers who
have co-located equipment in the Demised Premises to recover the same, provided
that (i) Lessee shall authorize Lessor in writing to deliver such equipment to
the owners thereof (which writing shall specify the equipment to be returned and
the owner(s) to whom each piece of equipment shall be delivered), (ii) each
customer who seeks to recover their co-located equipment shall retrieve the same
not more than twenty (20) days after this Lease shall be terminated or shall
expire (whether or not notice of such termination or expiration shall be
delivered by Lessor to any such customer, Lessee hereby assuming all
responsibility for such notification to its customers), and (iii) Lessee and
each such customer shall defend, indemnify and hold Lessor harmless from and
against any and all claims, costs, damages, expenses, fees, liabilities, losses
or suits arising from or out of, or in connection with, such recovery
(including, but not limited to, any damage occasioned to the Demised Premises or
the Building arising from or out of, or in connection with, the installation,
operation or removal of their respective equipment). Should the Lessor elect
that alterations, decorations, additions or improvements upon the Demised
Premises be removed, upon termination of this Lease or upon termination of any
renewal period hereof, Lessee hereby agrees to cause same to be removed at
Lessee's sole cost and expense and should Lessee fail to remove the same, then
and in such event, the Lessor shall cause same to be removed at the
-9-
10
Lessee's expense and the Lessee hereby agrees to reimburse the Lessor for the
cost of such removal together with any and all damages which the Lessor may
suffer and sustain by reason of the failure of Lessee to remove the same.
10. TENANT WORK
(a) (i) Promptly following the execution hereof, Lessee shall
deliver to Lessor, for Lessor's approval, Lessee's requirements for the
improvement of the Demised Premises, including, but not limited to, the size,
location and special mechanical, electrical and/or plumbing attributes or
requirements of Lessee's furniture and equipment, the location and specification
of telephone and other communications outlets, the location and specification of
electrical load and outlet requirements, especially those required to
accommodate items such as computers and 220 volt equipment, the location of
heat-producing machines, and specification of heat output (BTU/hour) and
required operating conditions (maximum/minimum temperature, hours of operation)
for such equipment. Lessor hereby acknowledges that, subject to receipt of all
applicable governmental approvals, and subject to Lessor's review and approval
of the plans and specifications therefor, the Tenant's Work (as herein defined)
may include the installation of an FM200 system, a pre-action sprinkler system,
one or more stand-alone supplemental heating, ventilation and air conditioning
units, and a generator umbilical feed to an above-grade location on the exterior
of the fire stairway in the northeast corner of the Property. Based on those
requirements which are approved by Lessor (which approval shall not be
unreasonably withheld, except with regard to requirements which will or may
require changes, improvements or modifications to the structure of, or the
systems serving, the Building or any part thereof, and with regard to
requirements which may adversely affect the operation of the Building or other
occupants of the Building, the approval of which may be withheld in Lessor's
sole discretion), Lessee shall cause Lessor's architect and engineer to prepare,
at Lessee's expense, construction drawings and specifications for the
improvements to the Demised Premises which are consistent with the Lessor's
approval, and to deliver the same to Lessor for Lessor's approval. Lessee shall
thereafter cause Lessor's architect and engineer to make such revisions as are
required to incorporate the changes required by Lessor. Lessor shall have final
approval regarding such construction drawings and specifications.
(ii) Following preparation of the final, approved construction
drawings and specifications, Lessor shall cause its general contractor to obtain
competitive bids from subcontractors for each trade forming a portion of the
leasehold improvements shown on the final construction drawings and
specifications prepared by Lessor's architect and engineer (the "Tenant's
Work"). Upon receipt of such competitive bids, Lessor shall provide to Lessee a
written estimate of the cost to perform the Tenant's Work (based on the lowest
responsible and responsive bids for the trades so bid, the costs of supervision,
dumpster charges, and interim and final cleaning costs, and a xxxx-up on all
such costs and charges of ten percent (10%) for Lessor's overhead and ten
percent (10%) for Lessor's profit). Lessee shall have three (3) business days
after receipt of such written estimate within which to review the same and to
submit to Lessor in writing any requests for value engineering changes. Lessor's
agreement to such value engineering changes shall not be unreasonably withheld,
so long as (A) the same do not represent a material variation from the final,
approved construction drawings and specifications, and (B) Lessee shall agree in
writing to pay any and all costs attributable to such
-10-
11
changes (including, but not limited to, any delays associated therewith).
Following Lessee's approval of the pricing for the Tenant's Work, Lessor shall,
on Lessee's behalf and at Lessee's expense, obtain in Lessee's name a building
permit for, and direct Xxxxxxx Development, Inc. to perform in the Demised
Premises, the Tenant's Work. The Tenant's Work shall be performed in accordance
with the final construction drawings and specifications, utilizing Building
standard materials except as otherwise specified in the plans and specifications
for the Tenant's Work. In no event shall the Tenant's Work include any work to
the Demised Premises not set forth in the final construction drawings and
specifications as approved by Lessor.
(b) All costs associated with the design, permitting, planning and
construction of the Tenant's Work shall be borne by Lessee. Lessee shall pay to
Lessor (which amount shall be deemed additional Rent for purposes of Lessor's
remedies under this Lease), the cost of the Tenant's Work as follows:
(i) prior to the commencement of the Tenant's Work, Lessee
shall pay to Lessor the sum equal to twenty percent (20%) of Lessor's estimate
of the cost of the Tenant's Work; and
(ii) following commencement of the Tenant's Work, Lessor shall
submit invoices to Lessee on or before the twenty-fifth (25th) of each month for
the unpaid costs incurred by Lessor for the portion of the Tenant's Work
theretofore completed or, in the case of special orders, ordered. Lessee shall
pay to Lessor the amount of each such invoice not later than the fifth (5th) day
of the following month.
(c) Following completion of the Tenant's Work, Lessee may undertake
to have extra tenant work performed at its own expense, provided, that (i) the
design of all such work and installations shall be subject to the prior written
approval of Lessor and Lessor's architect or supervising engineer (which
approval may be withheld or conditioned in Lessor's sole discretion), (ii) no
work may be commenced until the written approval of Lessor is obtained, (iii)
all work must be performed in accordance with tenant work procedures promulgated
by Lessor, (iv) Lessee shall have no right to make any structural modifications,
(v) Lessee will obtain a building permit for said work and will deliver one set
of approved plans as well as final inspection stickers and non-residential use
permit to Lessor, and (vi) all work must be performed by a contractor approved
by Lessor. In addition, (i) Lessee's contractor, if other than Lessor, Lessor's
Contractor or a third party contractor approved by Lessor (in Lessor's sole
discretion) to proceed without a bond, is to be bonded if the total cost of the
proposed improvements exceeds $10,000.00; (ii) Lessee shall comply with all such
other reasonable restrictions and conditions as Lessor may impose; (iii) Lessee
shall discharge all mechanics' liens in accordance with Section 9(b); (iv)
Lessee will defend, indemnify and hold Lessor and Lessor's Property harmless
from and against all damage and liability arising from the making of any such
tenant improvements; (v) Lessee shall deliver to Lessor a certificate of
insurance evidencing such insurance coverage as Lessor may require in connection
with the performance of such work and naming Lessor (and, at Lessor's option,
Lessor's mortgagee) as an additional insured; and (vi) Lessee shall provide
Lessor with waivers and releases of liens with respect to such improvements as
each payment for such work is made.
-11-
12
11. SIGNS, SAFES & FURNISHINGS
No signs, advertisement or notice shall be inscribed, painted, affixed or
displayed on any part of the outside or the inside of the Building, except on
the directories and the doors of offices, and then only in such place, number,
size, material color and style as is approved by Lessor, and if any such sign,
advertisement or notice is exhibited, Lessor shall have the right to remove the
same and Lessee shall be liable for any and all expenses incurred by Lessor by
said removal, Lessee hereby agreeing to reimburse Lessor upon demand for all
such expenses incurred by Lessor. Any such permitted use, including directories
and name plates, shall be at the sole expense and cost of the Lessee. Lessor
shall have the right to prohibit any advertisement of Lessee which in its
opinion tends to impair the reputation of the Building or its desirability as a
high-quality office Building, and, upon written notice from Lessor, Lessee shall
immediately refrain from and discontinue any such advertisement Lessor shall
have the right to prescribe the weight and position of safes and other heavy
equipment or fixtures. Any and all damages or injury to the Demised Premises or
the Building caused by moving the property of Lessee into, or out of the Demised
Premises, or due to the same being on the Demised Premises, shall be repaired
by, and at the sole cost of, Lessee. No furniture, equipment or other bulky
matter of any description will be received into the Building or carried in the
elevators except as approved by Lessor. All moving of furniture, equipment and
other material within the public areas shall be subject to such conditions and
restrictions as may be imposed by Lessor, who shall, however, not be responsible
for any damage to or charges for moving the same. Lessee agrees promptly to
remove from the sidewalks adjacent to the Building any of the Lessee's
furniture, equipment or other material there delivered or deposited.
12. ENTRY FOR REPAIRS AND INSPECTIONS
Lessor hereby reserves the right, for itself and its agents, officers,
employees and contractors, to have access to the Demised Premises at all
reasonable times to examine, inspect, and protect the same and to prevent damage
or injury to the same; to make such alterations and repairs to the Demised
Premises, the Building or other premises as the Lessor may deem necessary; to
exhibit the same to potential or actual mortgagees or purchasers of said
Building; and during the last six (6) months of the Lease Term, to exhibit the
same to prospective tenants. No such access by Lessor or those claiming by or
through Lessor shall constitute a constructive eviction or a basis for an
abatement of Rent, nor shall Lessee be entitled to any compensation on account
thereof. Lessor shall exercise reasonable efforts to give Lessee prior notice of
such access, and, when making such access, to minimize the interference with
Lessee's business operations; provided, however, the foregoing shall not be
construed to require Lessor to limit such access to non-business hours or to
limit the number of persons permitted access to the Demised Premises hereunder.
13. INSURANCE RATING
Lessee will not conduct or permit to be conducted any activity, or place
any equipment in or about the Demised Premises, which will, in any way, increase
the rate of fire insurance or other insurance on the Building; and if any
increase in the rate of fire insurance or other insurance is stated by any
insurance company or by the applicable Insurance Rating Bureau to
-12-
13
be due to activity or equipment in or about the Demised Premises, such statement
shall be conclusive evidence that the increase in such rate is due to such
activity or equipment and, as a result thereof, Lessee shall be liable for such
increase as additional Rent and upon notification thereof by Lessor shall
reimburse Lessor therefore.
14. LESSEE'S EQUIPMENT
Lessor acknowledges that Lessee shall have the right, subject to the terms
hereof, to install and operate telecommunications switching and routing
equipment, Internet and personal computers and servers, and related peripheral
equipment in the Demised Premises. Prior to Lessee installing in the Demised
Premises any electrically operated equipment or other machinery, Lessee shall
notify Lessor of the equipment to be installed and shall provide Lessor for
Lessor's approval detailed drawings of any required modifications to the
electrical system serving the Demised Premises or the structure of the Building
necessitated by such installation (such approval not to be unreasonably
withheld). Business machines and mechanical equipment belonging to Lessee which
cause interference, radiation, noise, vibration or other external effects that
may be transmitted to the structure of the Building or to any space in the
Building, or any equipment operated therein, shall be installed and maintained
by Lessee, at Lessee's expense, utilizing such shielding, sound attenuation,
vibration eliminators or other devices sufficient to eliminate such
interference, radiation, noise, vibration and other effects.
15. INDEMNITY
Lessee will defend, indemnify and hold harmless Lessor from and against
any loss, damage or liability (including attorneys fees) occasioned by or
resulting directly or indirectly from (i) the business conducted by Lessee in,
on or about the Demised Premises, and/or (ii) any default hereunder or any
willful or negligent act or omission on the part of Lessee or Lessee's Agents or
persons permitted in the Building or on the Demised Premises by Lessee.
16. SERVICES AND UTILITIES
Lessor shall have no obligation to furnish any service or utilities to the
Demised Premises. Lessee shall be solely responsible for furnishing to the
Demised Premises any and all services and utilities desired by Lessee,
including, but not limited to, electricity and water; provided that, Lessee
shall have the right, at Lessee's sole expense and subject to the availability
of capacity and the provisions hereof, to tap Lessor's water and electrical
supply lines and to tie into the Building fire annunciator panel, Lessee hereby
acknowledging that the plans and specifications for such connections shall be
subject, inter alia, to Lessor's prior written approval. Lessee shall, at
Lessee's sole expense, cause all such utilities to be separately metered or
sub-metered on a demand and consumption basis to the Demised Premises and shall
pay all charges therefor directly to the provider thereof (or, if sub-metered,
to reimburse Lessor for the same upon demand). Lessor agrees to permit Lessee to
utilize Lessor's dumpster, provided that Lessee reimburses Lessor upon demand
for any additional costs incurred by Lessor in order to accommodate Lessee's use
of such dumpster (including, but not limited to, costs of increasing the
capacity of Lessor's dumpster or the frequency of trash collection).
-13-
14
Failure of any such services, or any cessation thereof, shall not render Lessor
liable in any respect for damages to either person or property, nor be construed
as an eviction of Lessee, nor work an abatement of Rent, nor relieve Lessee from
fulfillment of any covenant or agreement hereof. Should any of the Building
equipment or machinery break down, or for any cause cease to function properly,
Lessor shall, upon receipt of notice from Lessee of the need therefore, use
reasonable diligence to repair the same promptly, but Lessee shall have no claim
for rebate of Rent or damages on account of any interruptions in service
occasioned thereby or resulting therefrom. Subject to the terms hereof, regular
maintenance and repairs, and circumstances and events beyond the reasonable
control of Lessor, Lessee and Lessee's employees shall have access to the
Building and the Demised Premises twenty-four (24) hours per day, three hundred
sixty-five (365) days per year.
17. RESPONSIBILITY FOR CERTAIN DAMAGE AND BREAKAGE
All breakage, damage and injury to the Demised Premises, and all breakage,
damage and injury to the Building of which the Demised Premises are a part
caused by or attributable to Lessee or Lessee's Agents, shall be repaired
promptly by the Lessee, at the expense of the Lessee. In the event that the
Lessee shall fail so to do, then the Lessor shall have the right to make
necessary repairs, alterations and replacements, structural, non-structural, or
otherwise, and any charge or cost so incurred by the Lessor shall be paid by the
Lessee with the right on the part of the Lessor to elect in its discretion to
regard the same as additional Rent, in which event such cost or charge shall
become additional Rent payable with the installment of Monthly Base Rent next
becoming due or thereafter falling due under the terms of this Lease. This
provision shall be construed as an additional remedy granted to the Lessor and
not in limitation of any other rights and remedies which the Lessor has or may
have in said circumstances. The exercising of Lessor's right to cure will not
excuse the failure of Lessee to perform its obligations hereunder.
In the event of any water leakage into the Demised Premises which is
caused by burst pipes or other breakage of Building systems and is not caused by
or reasonably attributable to the acts or omissions of Lessee or Lessee's
Agents, Lessor agrees to use commercially reasonable efforts to promptly repair
the source of such leak, but Lessor shall have no obligation to provide a
membrane or other waterproof barrier on the B-1 level of the Building above the
Demised Premises to act as a roof, or to otherwise alter, improve, modify or
retrofit the Building. Lessor agrees to permit Lessee to caulk or install other
waterproofing above the Demised Premises on the B-1 level of the Building, at
Lessee's sole expense and subject to Lessor's approval of Lessee's plans and
specifications therefor and the other terms and provisions hereof.
18. BANKRUPTCY
(a) If at any time during the Lease Term, a petition shall be filed,
either by or against the Lessee, in any Court or pursuant to any Federal, State,
or Municipal statute whether in bankruptcy, insolvency, for the appointment of a
receiver of the Lessee's property or because of any general assignment made by
the Lessee of the Lessee's property for the benefit of the Lessee's creditors,
then immediately upon the happening of any such event, and without any entry or
other act by the Lessor,
-14-
15
this Lease, at Lessor's option, shall cease and come to an end with the same
force and effect as if the date of the happening of any such event were the date
herein fixed for the expiration of the Lease Term. It is further stipulated and
agreed that, in the event of the termination of the Lease Term by the happening
of any such event, the Lessor shall forthwith, upon such termination, and any
other provisions of this Lease to the contrary notwithstanding, become entitled
to recover as and for liquidated damages caused by such breach of the provisions
of this Lease, an amount equal to the difference between the then cash value of
the Rent reserved hereunder for the unexpired portion of the term and the then
cash rental value of the Demised Premises for such unexpired portion of the
Lease Term hereby demised, unless the statute which governs or shall govern the
proceeding in which such damages are to be proved limits or shall limit the
amount of such claim capable of being so proved, in which case the Lessor shall
be entitled to prove as and for liquidated damages an amount equal to that
allowed by or under any such statute. The provisions of this Section of this
Lease shall be without prejudice to the Lessor's right to prove in full damages
for Rent accrued prior to the termination of this Lease, but not paid. This
provision of this Lease shall be without prejudice to any rights given to the
Lessor by any pertinent statute to prove any amounts allowed thereby.
(b) In making any such computation, the then cash rental value of
the Demised Premises shall be deemed prima-facie to be the present cash value
(utilizing a 6% discount rate) of rental realized upon any re-letting, if such
re-letting can be accomplished by the Lessor within a reasonable time after such
termination of this Lease, and the then present cash value of the future Rents
hereunder reserved to the Lessor for the unexpired portion of the term hereby
demised shall be deemed to be such sum, if invested at six per cent (6%) simple
interest, as will produce the future Rent over the period of time in question.
19. LIABILITY FOR DAMAGE TO PERSONAL PROPERTY AND PERSON
All personal property of the Lessee, its employees, agents, business
invitees, licensees, customers, clients, family members, guests or trespassers
in and on said Demised Premises, shall be and remain at their sole risk, and
Lessor shall not be liable to them for any damage to, or loss of such personal
property arising from any act of negligence of any other persons nor from the
leaking of the roof, or from the bursting, leaking or overflowing of (water,
sewer or steam pipes, or from heating or plumbing fixtures, or from electrical
wires or fixtures, or from air-conditioning failure, or from any other cause
whatsoever, nor (to the extent permitted by applicable law) shall the Lessor be
liable for any personal or bodily injury to the Lessee, its employee, agents,
business invitees, licensees, contractors, customers, clients, family members,
guests or trespassers arising from the use, occupancy and condition of the
Demised Premises or Building (except to the extent arising directly from the
gross negligence or willful misconduct of Lessor), the Lessee especially
agreeing to defend, indemnify and save the Lessor harmless in all such cases
from and against any loss, damage, or liability (including attorney's fees)
arising from the use, occupancy or condition of the Demised Premises, or, to the
extent attributable to the acts or omissions of Lessee or Lessee's Agents, the
Property (exclusive of the Demised Premises). Lessee further acknowledges and
agrees that, notwithstanding any provision of this Lease to the contrary, in no
event shall the Lessor be liable for any interruption or loss to Lessee's
-15-
16
business arising from any act or cause whatsoever (whether or not Lessor has
been negligent in any regard).
20. DAMAGE TO THE DEMISED PREMISES
If the Demised Premises shall be damaged by fire or other cause without
the fault or neglect of Lessee, Lessor shall diligently and as soon as
practicable after such damage occurs (taking into account the time necessary to
effectuate a satisfactory settlement with any insurance company) repair such
damage (but excluding Lessee's furniture, fixtures, furnishings, equipment,
improvements and/or alterations) at the expense of the Lessor, and the Monthly
Base Rent shall be reduced in proportion to the extent the Demised Premises are
rendered untenantable, until such repairs are completed, provided, however, that
if the Building is damaged by fire or other cause to such extent that the damage
cannot be fully repaired within ninety (90) days from the date of such damage,
and further provided that Lessor terminates the lease(s) of any other premises
which are damaged by the same fire or cause to the extent that the damage cannot
be fully repaired within ninety (90) days from the date of such damage, Lessor
shall have the option of terminating this Lease by giving written notice to
Lessee of such decision and the Lease Term shall terminate on the day such
notice is given. Notwithstanding the foregoing, in the event the Building shall
be damaged or destroyed by fire or other casualty during the last twelve (12)
months of the Lease Term, Lessor shall have no obligation to rebuild the Demised
Premises, and upon giving Lessee notice of Lessor's election not to rebuild the
Demised Premises, this Lease shall cease and determine as fully as if the date
of such notice were the scheduled termination date of this Lease. No
compensation or claim or reduction of Rent will be allowed or paid Lessor by
reason of inconvenience, annoyance, or injury to business arising from the
necessity of repairing the Demised Premises or any portion of the Building
however the necessity may occur.
21. DEFAULT OF LESSEE
(a) The occurrence of any of the following shall be deemed an "event of
default":
(i) the failure to pay any monthly installment of Monthly Base Rent
or any other Rent as reserved hereunder when and as the same are due, although
no legal or formal demand shall have been made therefor;
(ii) the violation or failure to perform any of the other
conditions, covenants or agreements herein made or imposed upon Lessee, which
violation or failure shall continue for a period of ten (10) days after written
notice thereof to Lessee from Lessor; provided that, except as otherwise set
forth herein, for any default which cannot reasonably be cured within said ten
(10) day period, the cure period therefor shall be extended for such time as is
reasonably necessary to effect a cure of such default (but in no event beyond
sixty (60) days after delivery of notice of such default with regard to any
intentional or willful default by Lessee hereunder), on the conditions that
Lessee immediately commences and diligently pursues such cure to completion, and
that, promptly upon determining that the aforesaid ten (10) day cure period is
inadequate, Lessee shall deliver notice to Lessor of the steps being taken to
cure such default and the amount of time reasonably estimated by Lessee to
effect such cure. Notwithstanding anything herein contained, the
-16-
17
occurrence of any violation of the conditions, covenants, duties and/or
obligations of Tenant herein contained, or any failure or neglect by Tenant to
observe or perform any of said conditions, covenants duties or obligations,
which (A) by its nature cannot be cured (or cannot be cured within the aforesaid
sixty (60) day period), (B) constitutes a hazard to the health and/or safety of
any occupant of the Property, (C) has caused the insurer of any policy of
insurance on the Property to issue a notice of cancellation of such policy, (D)
subjects Landlord to the risk of civil or criminal liability, fine, penalty or
prosecution, or (E) is defined as an event of default hereby without notice or
cure period, then the occurrence of such violation, failure or neglect shall,
without demand or notice or cure period, be deemed an event of default;
(iii) if Lessee becomes "insolvent," as defined in Title 11 of the
United States Code, entitled "Bankruptcy," 11 U.S.C. Section 101, et seq. (the
"Bankruptcy Code"), or under the insolvency laws of any State, District,
Commonwealth or Territory of the United States of America ("Insolvency Laws");
(iv) if a receiver or custodian is appointed for any or all of
Lessee's property or assets, or if there is instituted a foreclosure action on
any of Lessee's property;
(v) if Lessee files a voluntary petition under the Bankruptcy Code
or any Insolvency Laws;
(vi) there is filed an involuntary petition against Lessee as the
subject debtor under Bankruptcy Code or any Insolvency Laws, which such petition
is not dismissed within thirty (30) days of filing or results in issuance of an
order for relief against the Lessee as debtor;
(vii) if Lessee makes or consents to an assignment of its assets, in
whole or in part, for the benefit of creditors, or a common law composition of
creditors; or
(viii) the Demised Premises being abandoned (i.e., Lessee has
departed the Demised Premises without intention of returning) or vacant (i.e.,
Lessee no longer has equipment in the Demised Premises), and remaining so for
five (5) or more days, or the Demised Premises being deserted or deserted (i.e.,
no personnel of Lessee have visited the Demised Premises for more than 45
consecutive days).
(b) Upon the occurrence of any event of default, this Lease shall, at the
option of Lessor, cease and terminate and shall operate as a notice to quit, ANY
NOTICE TO QUIT OR OF LESSOR'S INTENTION TO RE-ENTER BEING HEREBY EXPRESSLY
WAIVED, and Lessor may proceed to recover possession under and by virtue of the
provisions of the laws of the State of Virginia, or by such other proceedings,
including re-entry and possession, as may be applicable. If Lessor elects to
terminate this Lease, everything herein contained on the part of Lessor to be
done and performed shall cease without prejudice, however, to the right of
Lessor to recover from Lessee all Rent accrued up to the time of termination or
recovery of possession by Lessor, whichever is later. Upon the occurrence of an
event of default as aforesaid, at Lessor's option (either with or without
terminating this Lease), the Demised Premises may be relet by Lessor for such
Rent and upon such terms as Lessor, in Lessor's sole discretion, shall deem
appropriate under the circumstances, and, if the full Rent hereinabove provided
shall not be realized by Lessor, Lessee
-17-
18
shall be liable for all damages sustained by Lessor, including, without
limitation, deficiency in Rent, reasonable attorneys' fees, brokerage fees, and
expenses of placing the Demised Premises in first class rentable condition. Any
damage or loss of Rent sustained by Lessor may be recovered by Lessor at
Lessor's option, at the time of the re-letting, or in separate actions, from
time to time, as said damage shall have been made more easily ascertainable by
successive re-lettings, or, at Lessor's option, may be deferred until the
expiration of the Lease Term, in which event the cause of action shall not be
deemed to have accrued until the date of expiration of said Lease Term. If
Lessor should commence any summary proceeding for non-payment of Rent by Lessee
or to recover possession of the Demised Premises, Lessee shall not interpose any
counterclaim of any nature or description in any such proceeding. Upon the
occurrence (or continued existence) of any monetary event of default in two or
more months, or any material non-monetary default hereunder (which term shall
include, but not be limited to, each of the events of default described in the
last sentence of the preceding Section 21(a)(ii)), provided this Lease shall not
be terminated, Lessor shall, in addition, have the option to require Lessee to
deposit with Lessor an additional Security Deposit in an amount not to exceed
six (6) months' Monthly Base Rent. The provisions contained in this Section
shall be in addition to and shall not prevent the enforcement of any claim
Lessor may have against Lessee for anticipatory breach of the unexpired Lease
Term. In the event that Lessee continues to occupy the Demised Premises after
the expiration of the Lease Term, with the express or implied consent of Lessor,
such tenancy shall be from month to month and shall not be a renewal of the term
of this Lease or a tenancy from year to year. All rights and remedies of Lessor
under this Lease shall be cumulative and shall not be exclusive of any other
rights and remedies provided to Lessor under applicable law.
22. WAIVER
If under the provisions hereof Lessor shall institute proceedings and a
compromise or settlement thereof shall be made, the same shall not constitute a
waiver of any covenant herein contained nor of any of Lessor's rights hereunder.
No waiver by Lessor of any breach of any covenant, condition or agreement herein
contained shall operate as a waiver of such covenant, condition, or agreement
itself, or of any subsequent breach thereof. No payment by Lessee or receipt by
Lessor of a lesser amount than the Rent herein stipulated shall be deemed to be
other than on account of the earliest stipulated Rent nor shall any endorsement
or statement on any check or letter accompanying a check for payment of Rent be
deemed an accord and satisfaction and Lessor may accept such check or payment
without prejudice to Lessor's right to recover the balance of such Rent or to
pursue any other remedy provided in this Lease. No re-entry by Lessor, and
acceptance by Lessor of keys from Lessee, shall be considered an acceptance of a
surrender of the Lease.
23. SUBORDINATION
This Lease is and shall automatically be subject and subordinate to the
lien of any and all mortgages (which term "mortgage" shall include both
construction and permanent financing and shall include deeds of trust and
similar security instruments) which may now or hereafter encumber or otherwise
affect the real estate (including the Building) of which the Demised Premises
form a part, or Lessor's interest therein, and
-18-
19
to all and any renewals, extensions, modifications, recastings or refinancings
thereof. In confirmation of such subordination, Lessee shall, at Lessor's
request, promptly execute any requisite or appropriate certificate or other
document required by Lessor's lender on the Property, provided that such
document does not increase the payments due under the Lease or materially
diminish the rights of Lessee or obligations of Lessor hereunder. Lessee hereby
constitutes and appoints Lessor as Lessee's attorney-in-fact to execute any such
certificate or certificates for or on behalf of Lessee which Lessee fails to
execute and deliver to Lessor within five (5) days after Lessor's written
request therefor. Notwithstanding anything to the contrary set forth above, any
beneficiary under any mortgage shall have the right, at its election (which
election may be exercised unilaterally by said beneficiary executing and filing
a notice thereof for record with the Clerk of the Circuit Court of Fairfax
County, Virginia, at any time prior to said beneficiary commencing foreclosure
proceedings pursuant to such mortgage) to subordinate the lien of such mortgage
to the Lease to the extent set forth in such document and thereupon the Lease
shall be deemed prior to such mortgage to the extent set forth in such document
without regard to their respective dates of execution, delivery and/or
recording. In that event, to the extent set forth in such document, such
mortgage shall have the same rights with respect to this Lease as would have
existed if this Lease had been executed, and a memorandum thereof recorded prior
to the execution, delivery and recording of the mortgage. Lessee agrees that in
the event that any proceedings are brought for the foreclosure of any such
mortgage, Lessee shall, if requested to do so by the purchaser at foreclosure,
attorn to the purchaser at such foreclosure sale and to recognize such purchaser
as the Lessor under this Lease, and Lessee waives the provisions of any statute
or rule of law, now or hereafter in effect, which may give or purport to give
Lessee any right to terminate or otherwise adversely affect this Lease and the
obligations of Lessee hereunder in the event that any such foreclosure
proceeding is prosecuted or completed. Any mortgagee, purchaser at foreclosure,
or assignee of Lessor who requests such attornment shall not (a) be bound by any
prepayment of Rent for more than one (1) month in advance (Lessee hereby
acknowledging and agreeing that Lessee shall have no right to, and shall not,
prepay Rent more than one month in advance of its due date, and that Rent shall
be payable after any such foreclosure, purchase, or assignment, in case of a
requested attornment as aforesaid, in accordance with the provisions of this
Lease as if such prepayment of Rent for more than one (1) month in advance had
not been made), nor (b) to be bound by any amendment to this Lease which was not
approved by such mortgagee prior to the foreclosure or assignment, nor (c) be
subject to any defense which Lessee might assert against Lessor, nor (d) be
liable for any defaults (including defaults of a continuing nature) by any prior
landlord, including the Lessor, or for the return of any security deposit except
to the extent the mortgagee or such purchaser actually received the same, in
cash or in kind, and such security deposit has been segregated and identified as
such by Lessor in the ordinary course of business.
24. CONDEMNATION
If the whole or a substantial part of the Demised Premises shall be taken
or condemned (the terms "taken" and "condemned" as used herein being deemed to
include any deed given in lieu of or under threat of taking or condemnation) by
any governmental or quasi-governmental authority for any public or quasi-public
use
-19-
20
or purpose, then the Lease Term shall cease and terminate as of the date when
title vests in such condemning authority, and Lessee shall have no claim against
Lessor or the condemning authority for any portion of the amount that may be
awarded as damages as a result of such taking or condemnation or for the value
of any unexpired portion of the Lease Term; provided that, subject to the
foregoing, Lessee shall be entitled to institute a separate action against the
condemning authority to recover such damages as Lessee may be entitled pursuant
to the Uniform Relocation Assistance and Real Property Acquisition Policies Act
of, 1970, 42 U.S.C. Sections 4601 et. seq., upon the condition that such damages
do not diminish the amount of the award to which Lessor is otherwise entitled.
The Monthly Base Rent, however, shall be abated on the date when such title
vests in such condemning authority. If less than a substantial part of the
Demised Premises is taken or condemned by any governmental or quasi-governmental
authority for any public or quasi-public use or purpose, the Monthly Base Rent
shall be equitably adjusted on the date when title vests in such condemning
authority and the Lease shall otherwise continue in full force and effect. For
purpose of the Article, a substantial part of the Demised Premises shall be
considered to have been taken if more than fifty percent (50%) of the Demised
Premises are untenantable by Lessee.
25. RULES AND REGULATIONS
Lessee shall, and shall cause Lessee's Agents to, abide by and observe the
rules and regulations attached hereto as Exhibit C. Lessee and Lessee's Agents
shall abide by and observe such other rules or regulations as may be promulgated
from time to time by Lessor for the operation and maintenance of the Building
provided that the same are in conformity with common practice and usage in
similar buildings and are not inconsistent with the provisions of this Lease and
a copy thereof is sent to Lessee. Nothing contained in this Lease shall be
construed to impose upon Lessor any duty or obligation to enforce such rules and
regulations, or the terms, conditions or covenants contained in any other Lease
as against any other tenant, and Lessor shall not be liable to Lessee for
violation of the same by any other tenant, its employees, agents, business
invitees, licensees, customers, clients, family members or guests. Lessor hereby
agrees not to enforce the rules and regulations against Lessee in a
discriminatory manner.
26. RIGHT OF LESSOR TO CURE LESSEE'S DEFAULT
If Lessee defaults in the making of any payment or in the doing of any act
herein required to be made or done by Lessee, then Lessor may, but shall not be
required to, make such payment or do such act, and the amount of the expense
thereof if made or done by Lessor, with interest thereon at the rate of twelve
percent (12%) per annum from the date paid by Lessor, shall be paid by Lessee to
Lessor and shall constitute additional Rent hereunder due and payable with the
next monthly installment of Monthly Base Rent; but the making of such payment or
the doing of such act by Lessor shall not operate to cure such default or to
estop Lessor from the pursuit of any remedy to which Lessor would otherwise be
entitled. Any installment of Rent which is not paid by Lessee within ten (10)
days after the same becomes due and payable shall bear interest at the rate of
twelve percent (12%) per annum from the date such installment became due and
payable to the date of payment thereof by Lessee, plus a late charge of 10% of
the Rent payments not received by Lessor by the 10th of the month due, and such
interest and late charge shall constitute
-20-
21
additional Rent hereunder due and payable with the next monthly installment of
Rent. The imposition of late charges or interest will not be deemed to excuse
the untimely payment of Rent.
27. NO PARTNERSHIP
Nothing contained in this Lease shall be deemed or construed to create a
partnership or joint venture of or between Lessor and Lessee, or to create any
other relationship between the parties hereto other than that of Lessor and
Lessee.
28. NO REPRESENTATIONS BY LESSOR
Neither Lessor nor any agent or employee of Lessor has made any
representations or promises with respect to the Demised Premises or the Building
except as herein expressly set forth, an no rights, privileges, easements or
licenses are granted to Lessee except as herein set forth. The Lessee, by taking
possession of the Demised Premises, shall accept the same "as is" and such
taking of possession shall be conclusive evidence that the Demised Premises and
the Building are in good and satisfactory condition at the time of such taking
of possession, as provided for in Exhibit D.
29. BROKERS
Lessor and Lessee each represent and warrant one to another that except
for Xxxxxxx Small Properties ("Xxxxxxx"), neither of them has employed any
broker in carrying on the negotiations relating to this Lease. Lessor shall
indemnify and hold Lessee harmless, and Lessee shall indemnify and hold Lessor
harmless, from and against any claim or claims for brokerage or other commission
arising from or out of any breach of the foregoing representation and warranty
by the respective indemnitor; provided that, Lessor shall pay to Xxxxxxx a
cooperating broker commission pursuant to a separate agreement.
30. WAIVER OF JURY TRIAL
Lessor and Lessee 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 of any matter whatsoever arising out of or in any way connected with
this Lease, the relationship of Lessor and Lessee hereunder, Lessee's use or
occupancy of the Demised Premises, and/or claim of injury or damage.
31. NOTICES
All notices or other communications hereunder shall be in writing and
shall be deemed duly given when (a) if delivered in person or via
nationally-recognized overnight courier service (or attempted delivery of the
same if refused) as evidenced in writing, or (b) deposited in the U.S. mails by
certified or registered mail, return receipt requested, addressed first-class,
postage prepaid, (i) if to Lessor, attention: Xxxxx X. Xxxxxxx, Xxxxxxx
Properties, Inc., 0000 Xxxxx Xxxxxxxxx, Xxxxxx, Xxxxxxxx 00000, and (ii) if to
Lessee, AboveNet Communications, Attention: Xx. Xxxxx Xxxxxx, at 00 X. Xxx
Xxxxxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxxxxxxxxx 00000, unless notice of a
change of address is given pursuant to the provisions of this article.
-21-
22
32. ESTOPPEL CERTIFICATES
Lessee agrees, at any time and from time to time, upon not less than five
(5) days prior written notice by Lessor, to execute, acknowledge and deliver to
Lessor a statement in writing (i) 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), (ii)
stating the dates to which the Rent and other charges hereunder have been paid
by Lessee, (iii) stating whether or not to the best knowledge of Lessee, Lessor
is in default in the performance of any covenant, agreement or condition
contained in this Lease, and, if so, specifying each such default of which
Lessee may have knowledge, and (iv) stating the address to which notices to
Lessee should be sent and (v) such other information as Lessor may reasonably
request. Any such statement delivered pursuant hereto may be relied upon by any
owner of the Building any prospective purchaser of the Building, any mortgagee
or prospective mortgagee of the Building or of Lessor's interest, or any
prospective assignee of any such mortgagee. Lessee hereby appoints Lessor as
Lessee's attorney-in-fact to execute and deliver the aforesaid estoppel
certificate, in the event Lessee shall fail to deliver to Lessor the same to
Lessor within five (5) days of receipt of said written notice.
33. HOLDING OVER
In the event that Lessee shall not immediately surrender the Demised
Premises on the date of expiration of the term hereof, or any renewal term,
Lessee shall, by virtue of the provisions hereof, become a Lessee by the month
at the Monthly Base Rent in effect during the last month of the term of this
Lease plus twenty five percent (25%), which said monthly tenancy shall commence
with the first day next after the expiration of the Lease Term. The Lessee as a
monthly Lessee shall be subject to all of the conditions and covenants of this
Lease, except those provisions relating to Lessor funded tenant work, Rent
abatement or other Lessor funded allowances, as though the same had originally
been monthly tenancy. Lessee shall give to Lessor at least thirty (30) days'
written notice of any intention to quit the Demised Premises, and Lessee shall
be entitled to thirty (30) days' written notice to quit the Demised Premises,
EXCEPT IN THE EVENT OF NONPAYMENT OF RENT IN ADVANCE OR OF THE BREACH OF ANY
COVENANT BY THE LESSEE, IN WHICH EVENT LESSEE SHALL NOT BE ENTITLED TO ANY
NOTICE TO QUIT, THE USUAL THIRTY (30) DAYS NOTICE TO QUIT BEING HEREBY EXPRESSLY
WAIVED. Notwithstanding the foregoing provisions of this Section, in the event
that Lessee shall hold over the expiration of the Lease Term hereby created, and
if Lessor shall desire to regain possession of the Demised Premises promptly at
the expiration of the Lease Term, then at any time prior to Lessor's acceptance
of Rent from Lessee as a monthly tenant hereunder, Lessor, at its option, may
forthwith re-enter and take possession of the Demised Premises without process,
or by any legal process in force in the State of Virginia, and Lessee shall
remain liable for any and all claims, cost, damage, expense and liability which
Lessor may suffer, to the extent that the same shall be proximately caused by
Lessee's failure to surrender the Demised Premises as required hereunder.
34. INTENTIONALLY OMITTED
35. INTENTIONALLY OMITTED
-22-
23
36. PUBLIC LIABILITY INSURANCE
Lessee shall obtain and maintain in effect at all times during the Lease
Term, a policy of comprehensive public liability insurance, naming Lessor, any
property management agent for the Building and any mortgagee of the Building as
additional insureds, protecting Lessor, Lessee, management agent and any such
mortgagee against any liability for bodily injury, death or property damage
occurring upon, in or about any part of the Building or the Demised Premises
arising from any of the items set forth herein against which Lessee is required
to indemnify Lessor, with such policies to afford protection to the limit of not
less than Three Million Dollars ($3,000,000) combined single limit. Lessor shall
have the right to require Lessee to increase the minimum limits of coverage set
forth above, from time to time, to the standard limits of coverage required in
comparable first class office Buildings in the Washington, D.C. area. Lessee, at
Lessee's sole cost and expense, shall obtain and maintain in effect commencing
with the Commencement Date and continuing through the Lease Term, insurance
policies providing for the following coverage: all risk and property insurance,
including (without limitation) coverage against fire, theft, vandalism,
malicious mischief, sprinkler leakage and such additional perils as now are or
hereafter may be included in a standard extended coverage endorsement from time
to time in general use in the Commonwealth of Virginia, insuring Lessee's
merchandise, trade fixtures, furnishings, equipment and all items of personal
property of Lessee located on or in the Demised Premises, in an amount equal to
not less than the full replacement value thereof. All proceeds of such
insurance, so long as the Lease shall remain in effect, shall be used only to
repair or replace the items so insured. Such insurance policies shall be issued
by responsible insurance companies licensed to do business in the State of
Virginia. Neither the issuance of any insurance policy required under this
Lease, nor the minimum limits specified herein with respect to Lessee's
insurance coverage, shall be deemed to limit or restrict in any way Lessee's
liability arising under or out of this Lease.
37. GENDER
Feminine or neuter pronouns shall be substituted for those of the
masculine form, and the plural shall be substituted for the singular number, in
any place or places herein in which the context may require such substitution or
substitutions.
38. BENEFIT AND BURDEN
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,
successors and assigns (however, the foregoing shall not be deemed to permit any
assignment, sublet, encumbrance or other transfer in violation of Section 7
hereof). Lessor may freely and fully assign its interest hereunder.
39. INTENTIONALLY OMITTED
40. MISCELLANEOUS
(a) Recording. Neither this Lease nor any memorandum nor short form
hereof shall be recorded in the land or other records of the Commonwealth of
Virginia or Fairfax County, Virginia.
-23-
24
(b) Survival of Obligations. If Lessee has failed to fulfill its
obligations under this Lease such obligations and Lessor's rights in respect
thereof shall remain in full force and effect notwithstanding the expiration of
the Term.
(c) Headings. The captions, section numbers and index appearing in
this Lease are inserted only as a matter of convenience and reference, and in no
way shall be held to explain, modify, amplify, define, limit, construe, or
describe the scope of intent of such sections of this Lease nor in any way add
to the interpretation, construction or meaning of any provision or otherwise
affect this Lease.
(d) Severability. If any covenant or agreement of this Lease or the
application thereof to any person or circumstance shall be held to be invalid or
unenforceable, then and in each such event the remainder of this Lease, or the
application of such covenant or agreement to any other person or any other
circumstance, as the case may be, shall not be thereby effected, and each
covenant and agreement of this Lease shall remain valid and enforceable to the
fullest extent permitted by law.
(e) Corporate or Partnership Authority:
(i) If Lessee executes this Lease as a corporation, each of
the persons executing this Lease on behalf of Lessee hereby covenants and
warrants: (1) that Lessee is a duly authorized and existing corporation,
qualified to do business in the Commonwealth of Virginia, with full right and
authority to enter into this Lease; (2) each of the persons executing this Lease
on behalf of Lessee possesses actual authority to do so; and (3) this Lease
constitutes a valid and legally binding obligation on Lessee, enforceable
according to the terms hereof.
(ii) If Lessee executes this Lease as a partnership, each of
the persons executing this Lease on behalf of Lessee hereby covenants and
warrants: (1) that Lessee is a duly authorized and existing partnership,
qualified to do business in the Commonwealth of Virginia, with full right and
authority to enter into this Lease; (2) each of the persons executing this Lease
on behalf of Lessee possesses actual authority to do so; and (3) this Lease
constitutes a valid and legally binding obligation on Lessee, enforceable
according to the terms hereof.
(f) Lessor's Liability. Notwithstanding any provision hereof to the
contrary, Lessee shall look solely to the estate and property of Lessor in and
to the Building (or the proceeds received by Lessor on a sale of such estate and
property but not the proceeds of any financing or refinancing thereof) in the
event of any claim or judgment against Lessor arising out of or in connection
with this Lease, the relationship of landlord and tenant or Lessee's use of the
Demised Premises, and Lessee agrees that the liability of Lessor arising out of
or in connection with this Lease, the relationship of landlord and tenant or
Lessee's use of the Demised Premises, shall be limited to such estate and
property of Lessor (or sale proceeds). No other properties or assets of Lessor
shall be subject to levy, execution or other enforcement procedures for the
satisfaction of any judgement (or other judicial process) or for the
satisfaction of any other remedy of Lessee arising out of or in connection with
this Lease, the relationship of landlord and tenant or Lessee's use of the
Demised Premises, and if Lessee shall acquire a lien on or
-24-
25
interest in any other properties or assets by judgment or otherwise, Lessee
shall promptly release such lien on or interest in such other properties and
assets by executing, acknowledging and delivering to Lesser an instrument to
that effect prepared by Lessor's attorneys. It is agreed that neither Lessor nor
any of its officers, directors or employees shall ever be personally liable for
any judgment against Lessor or any duty or liability of Lessor under this Lease.
Lessor shall have no liability to Lessee for failure to perform Lessor's
obligations hereunder where such failure(s) is due to causes beyond Lessor's
control, including without limitation acts of God, war, civil commotion,
strikes, and embargoes; nor shall any such failure entitle Lessee to any
abatement or reduction in Rent, except as may be expressly provided herein, or
any claim of actual or constructive eviction. Lessee shall not be entitled to
any compensation or reduction in Rent by reason of inconvenience or loss arising
from Lessor's entry onto the Demised Premises as authorized hereunder, nor by
reason of any repairs to the Demised Premises or the Building.
(q) Governing Law. This Lease shall be governed by the laws of
the Commonwealth of Virginia, without regard to the conflict of laws principles
thereof.
(h) Effective Date. For all purposes hereof, the "Effective
Date" of this Lease shall be the date upon which this Lease shall have been
executed by both parties and physically delivered by Lessor to Lessee or its
attorney. Prior to the Effective Date, neither this Lease nor anything hereunder
contained shall be legally binding on either Lessor or Lessee, and the
submission of this Lease by Lessor to Lessee prior to such Effective Date for
examination or consideration by Lessee or discussion between Lessor and Lessee
shall not constitute a reservation of or option for the Demised Premises or
create any legal obligation or liability whatsoever on Lessor.
41. WAIVER OF SUBROGATION
Notwithstanding any language to the contrary in this Lease, Lessee shall
not be responsible for damage to the Lessor's property caused by Lessee to the
extent the damage is covered by the Lessor's all risk property insurance policy.
Lessor agrees to maintain such a policy during the Lease Term and Lessor shall
obtain a waiver of subrogation under the policy in favor of the Lessee. Lessee
shall require its insurer(s) to include in all of Lessee's insurance policies
which could give rise to a claim against Lessor an endorsement whereby the
insurer(s) shall waive any rights of subrogation against Lessor. Lessee hereby
releases Lessor and its partners, officers, directors, agents and employees from
any and all liability and responsibility to Lessee or any person claiming by,
through or under Lessee, by way of subrogation or otherwise, for any injury,
loss or damage to Lessee's property covered by a valid and collectible fire
insurance policy with extended coverage endorsement. Lessee agrees to look to
its own fire and hazard insurance policies in the event of damage to Lessee's
personal property. The waivers of subrogation shall be made in writing and
delivered to the respective parties.
42. RENEWAL
(a) Provided Lessee is not in default, Lessee shall have the
subordinate option, upon the terms and conditions set forth herein, to extend
the Lease Term for one (1) additional four (4) year period (herein referred to
as the "Renewal Term").
-25-
26
Lessee may exercise the renewal option only upon binding written notice
delivered to Lessor not later than six (6) months prior to the expiration of the
Initial Term. In the event Lessee does not timely exercise its option for the
Renewal Term, Lessee's rights under this Section 42 shall lapse. Lessee's notice
to renew shall, at Lessor's option, be deemed ineffective if Lessee is in
default on the date the notice is given or is in default on the date the Renewal
Term is to commence. The Renewal Term, if properly exercised, shall extend the
Lease Term accordingly, and, except as otherwise provided herein, shall be on
all of the same terms and conditions as the Initial Term except that the Monthly
Base Rent for the first (1st) year of the Renewal Term shall be one hundred six
percent (106%) of the Monthly Base Rent in effect immediately prior to the
expiration of the Initial Term, and shall thereafter be escalated in accordance
with Section 5(D), and there shall be no further Renewal Terms after the first
(1st) Renewal Term.
This Lease, together with Exhibits A, C and D attached hereto and made a
part hereof, contains and embodies the entire agreement of the parties hereto,
and no representations, inducements, or agreements, oral or otherwise between
the parties not contained and embodied in said Lease and Exhibits, shall be of
any force or effect, and that same may not be modified, changed or terminated in
whole or in part in any manner other than by an agreement in writing duly signed
by all parties hereto.
IN WITNESS WHEREOF, each of the parties hereto, respectively, has caused
these presents to be executed and attested by their duly authorized officers and
their seals affixed.
LESSOR:
XXXXXXX PROPERTIES, INC.
ATTEST:
[SIGNATURE ILLEGIBLE] By: [SIGNATURE ILLEGIBLE]
----------------------------------- ----------------------------------
LESSEE:
ATTEST: ABOVENET COMMUNICATIONS, INC.,
a California corporation
/s/ XXXXXXX X. XXXXXX By /s/ XXXXXXX XXXX
----------------------------------- ----------------------------------
Xxxxxxx X. Xxxxxx, Secretary Xxxxxxx Xxxx, President
-26-
27
STATE OF VIRGINIA )
) ss:
COUNTY OF FAIRFAX )
The undersigned, a notary public in and for the State and County
aforesaid, does certify that Xxxxx X. Xxxxxxx whose name as President of Xxxxxxx
Properties, Inc., is signed to the writing above, bearing date on the 3rd day of
September, 1997, has acknowledged the same before me in the County of Fairfax.
Given under my hand and official seal this 3rd day of September, 1997. My
term of office expires on the 28th day of February, 1998.
/s/ [SIG]
----------------------------------
Notary Public
STATE OF CALIFORNIA )
) ss:
COUNTY OF SANTA XXXXX )
The undersigned, a notary public in and for the State and County
aforesaid, does certify that XXXXXXX XXXX whose name as PRESIDENT of ABOVENET
COMMUNICATIONS, INC., is signed to the writing above, bearing date on the 13 day
of August, 1997, has acknowledged the same before me in the County of Santa
Xxxxx.
Given under my hand and official seal this 13 day of August, 1997. My
term of office expires on the 17 day of October, 1997.
/s/ XXXXXX X. XXXXXX
[SEAL] ----------------------------------
Notary Public
-27-
28
EXHIBIT "A"
FLOOR PLAN OF DEMISED PREMISES
[TO BE ATTACHED PRIOR TO EXECUTION]
-28-
29
EXHIBIT "B"
INTENTIONALLY OMITTED
-29-
30
EXHIBIT "C"
RULES AND REGULATIONS
1. The sidewalks, entrances, passages, courts, elevators, vestibules,
stairways, corridors or halls or other parts of the Building not occupied by any
Lessee shall not be obstructed or encumbered by any Lessee or used for any
purpose other than ingress and egress to and from the Demised Premises. Lessor
shall have the right to control and operate the public portions of the Building,
and the facilities furnished for the common use of the Lessees, in such manner
as Lessor deems best for the benefit of the Lessees generally. No Lessee shall
permit the visit to the Demised Premises of persons in such numbers or under
such conditions as to interfere with the use and enjoyment by other Lessees of
the entrances, corridors, elevators and other public portions or facilities of
the Building.
2. No awnings or other projections shall be attached to the outside
walls of the Building without the prior written consent of the Lessor. No
drapes, blinds, shades, or screens shall be attached to or hung in, or used in
connection with any window or door of the Demised Premises, without the prior
written consent of the Lessor. Such awnings, projections, curtains, blinds,
shades, screens or other fixtures must be of a quality, type, design and color,
and attached in the manner approved by Lessor.
3. No sign, advertisement, notice or other lettering shall be
exhibited, inscribed, painted or affixed by any Lessee on any part of the
outside or inside of the Demised Premises or Building without the prior written
consent of the Lessor. In the event of the violation of the foregoing by any
Lessee, Lessor may remove same without any liability, and may charge the expense
incurred by such removal to the Lessee or Lessees violating this rule. Interior
signs on doors and directory tablet shall be inscribed, painted or affixed for
each Lessee by the Lessor at the expense of such Lessee, and shall be of a size,
color and style acceptable to the Lessor.
4. No show cases or other articles shall be put in front of or
affixed to any part of the exterior of the Building, nor placed in the halls,
corridors or vestibules without the prior written consent of the Lessor.
5. The water and wash closets and other plumbing fixtures shall not
be used for any purposes other than those for which they were constructed, and
no sweepings, coffee grounds, rubbish, rags, or other substances shall be thrown
therein. All damages resulting from any misuse of the fixtures shall be borne by
the Lessee who, or whose servants, employees, agents, visitors or licensees,
shall have caused the same.
6. Except as part of the Tenant's Work approved by Lessor, there
shall be no marking, painting, drilling into or in any way defacing any part of
the Demised Premises or the Building. No boring, cutting or stringing of wires
shall be permitted. Lessee shall not construct, maintain, use or operate within
the Demised Premises or elsewhere within or on the outside of the Building, any
electric device, wiring or apparatus in connection with a loud speaker system or
other sound system.
7. No bicycles, vehicles or animals, birds or pets of any kind shall
be brought into or kept in or about the Demised
-30-
31
Premises, and no cooking shall be done or permitted by any Lessee on said
Demised Premises. No Lessee shall cause or permit any unusual or objectionable
odors to be produced upon or permeate from the Demised Premises.
8. No space in the Building shall be used for manufacturing, for the
storage of merchandise, or for the sale of merchandise, goods or property of any
kind at auction.
9. No Lessee shall make, or permit to be made, any unseemly or
disturbing noises or disturb or interfere with occupants of this or neighboring
buildings or premises of those having business with them, whether by the use of
any musical instrument, radio, talking machines, unmusical noise, whistling,
singing, or in any other way. No Lessee shall throw anything out of the doors or
windows or down the corridors or stairs.
10. No inflammable, combustible or explosive fluid, chemical or
substance shall be brought or kept upon the Demised Promises.
11. No additional locks or bolts of any kind shall be placed upon any
of the doors, or windows by any Lessee, nor shall any changes be made in
existing locks or the mechanism thereof without the prior written consent of
Lessor; provided that, Lessor hereby agrees to permit Lessee to install, at
Lessee's sole expense, an electronic keycard access system for the Demised
Premises on the condition that each of the following conditions is satisfied at
Lessee's sole expense: (i) such system is Underwriters Laboratory-approved; (ii)
Lessee shall obtain Lessor's prior written consent to the plans and
specifications for such system and the installation thereof; (iii) such system
is designed and installed to permit a manual override by means of a master key;
(iv) such system is connected to the Building fire annunciator panel, and
provides for fire alarm override to the extent required pursuant to applicable
law; and (v) Lessee shall provided to Lessor not less than five (5) keycards to
any such system. All locks must be keyed to the Building's master key in the
possession of Lessor. In the case of rekeying, Lessee will provide Lessor, at no
cost to Lessor, six (6) copies of keys to said rekeyed locks. The doors leading
to the corridors or main halls shall be kept closed during business hours except
as they may be used for ingress or egress. Each Lessee shall, upon the
termination of his tenancy, restore to Lessor all keys of stores, offices,
storage, and toilet rooms either furnished to, or otherwise procured by, such
Lessee, and in the event of the loss of any keys, so furnished, such Lessee
shall pay to the Lessor the cost thereof and, if necessary, the cost of rekeying
the locks if Lessor does not have a copy of the lost key.
12. All removals or the carrying in or out of any safes, freight,
furniture or bulky matter of any description must take place during the hours
which the Lessor or its Agent may determine from time to time. The Lessor
reserves the right to inspect all freight to be brought into the Building and to
exclude from the Building all freight which violates any of these Rules and
Regulations or the Lease of which these Rules and Regulations are a part.
13. Any person employed by any Lessee to do janitor work within the
Demised Premises must obtain Lessor's consent and such person shall, while in
the Building and outside of said Demised Premises, comply with all instructions
issued by the Superintendent of the Building. No Lessee shall engage or pay
-31-
32
any employees on the Demised Premises, except those actually working for such
Lessee on said Demised Premises.
14. Deleted.
15. Lessor shall have the right to prohibit any advertising by any
Lessee which, in Lessor's opinion, tends to impair the reputation of the
Building or its desirability as a building for offices, and upon written notice
from Lessor, Lessee shall refrain from or discontinue such advertising.
16. The Lessor reserves the right to exclude from the Building at all
times any person who is not known or does not properly identify himself to the
Building management or watchman on duty. Lessor may at his option require all
persons admitted to or leaving the Building between the hours of 6 P.M. and 8
A.M., Monday through Saturday, Sundays and legal holidays to register. Each
Lessee shall be responsible for all persons for whom he authorizes entry into or
exit out of the Building, and shall be liable to the Lessor for all acts of such
persons. The Building main entrances will remain locked from 6 p.m. Friday
through 8 a.m. Monday. Any Lessee requiring entrance to the Building during the
above hours or after normal weekly business hours must use a key provided by
Lessor.
17. The Demised Premises shall not be used for lodging or sleeping or
for any immoral or illegal purpose.
18. Intentionally Omitted.
19. The requirements of Lessees will be attended to only upon
application at the office of the Building. Employees shall not perform any work
or do anything outside of the regular duties, unless under special instruction
from the management of the Building.
20. Canvassing, soliciting and peddling in the Building is prohibited
and each Lessee shall cooperate to prevent the same.
21. No water cooler, plumbing or electrical fixtures shall be
installed by any Lessee.
22. There shall not be used in any space, or in the public halls of
the Building, either by any Lessee or by jobbers or others, in the delivery or
receipt of merchandise, any hand trucks, or similar devices except those
equipped with rubber tires and rubber sideguards.
23. Access plates to underfloor conduits shall be left exposed. Where
carpet is installed, carpet shall be cut around access plates.
24. Mats, trash or other objects shall not be placed in the public
corridors.
25. The Lessor does not maintain suite finishes which are
nonstandard, such as kitchens, bathrooms, wallpaper, special lights, etc.
However, should the need for repairs arise, the Lessor will arrange for the work
to be done at the Lessee's expense.
26. Drapes installed by the Lessor for the use of the Lessee or
drapes installed by the Lessee, which are visible from
-32-
33
the exterior of the Building must be cleaned by the Lessee at least once a year,
without notice, at said Lessee's own expense.
27. The Lessee will furnish and install all light bulbs for the
Demised Premises.
28. Any material violation of these rules and regulations, or any
amendments thereto, shall be a default under the Lease which, if not cured as
set forth in Section 21 of the Lease, shall be sufficient cause for termination
of this Lease at the option of the Lessor; provided that, any repetitive
violation of these rules and regulations (i.e., more than two (2) violations in
any period of twelve (12) consecutive months) shall, without notice or cure
period, be deemed an Event of Default.
29. The Lessor may, upon request by any Lessee, waive the compliance
by such Lessee of any of the foregoing rules and regulations, provided that (i)
no waiver shall be effective unless signed by Lessor or Lessor's authorized
agent, (ii) any such waiver shall not relieve such Lessee from the obligation to
comply with such rule or regulation in the future unless expressly consented to
by Lessor, and (iii) no waiver granted to any Lessee shall relieve any other
Lessee from the obligation of complying with the foregoing rules and regulations
unless such other Lessee has received a similar waiver in writing from Lessor.
-33-
34
EXHIBIT "D"
DECLARATION BY LESSOR AND LESSEE AS TO
DATE OF DELIVERY AND ACCEPTANCE OF
POSSESSION OF DEMISED PREMISES
Attached to and made a part of the Lease Agreement, dated the _________
(_) day of August, 1997, entered into by and between XXXXXXX PROPERTIES, INC.,
as Lessor, and ABOVENET COMMUNICATIONS, INC., as Lessee.
XXXXXXX PROPERTIES, INC., as Lessor in the foregoing Lease Agreement and
ABOVENET COMMUNICATIONS, INC., as Lessee therein, do hereby declare and evidence
that possession of the Demised Premises was accepted by Lessee on the ( )
day of , 1997. The Building and other improvements required to be
constructed and finished by Lessor in accordance with provisions of this lease
have been satisfactorily completed by Lessor and accepted by Lessee and that the
Lease Agreement is now in full force and effect and for the purpose of this
Agreement the Lease commencement date is established as beginning on the
fifteenth (15th) day of September, 1997, and the Lease expiration date being on
the fourteenth (14th) day of September, 2003 (subject to Lessee's renewal
option), and, as of the date of the acceptance as herein set forth, there is no
right of set off against Rents claimed by Lessee against Lessor.
LESSEE: LESSOR:
ABOVENET COMMUNICATIONS, INC. XXXXXXX PROPERTIES, INC.
BY BY
------------------------------ --------------------------------------
XXXXXXX XXXX, PRESIDENT
ATTEST: ATTEST:
--------------------------------- ------------------------------------------
XXXXXXX X. XXXXXX, Secretary Secretary
-34-
