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EXHIBIT 10.25
DEED OF LEASE
0000 Xxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxx 00000
THIS DEED OF LEASE made and entered into on this the thirtieth (30th) day
of January, 1998, 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 two thousand twenty-one (2,021) square feet of rentable area
(including an allowance for core factor) on the first (1st) floor 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 #110, and are outlined in red on the plan attached hereto and made a part
hereof as Exhibit A.
2. TERM
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
five (5) years, seven (7) months, beginning on the fifteenth (15th) day of
February, 1998 (the "Commencement Date"), and ending (subject to the terms
hereof) on the fourteenth (14th) day of September, 2003, (the "Initial Term",
the Initial Term being also herein referred to as the "Lease Term").
3. USE
Lessee will use and occupy the Demised Premises solely for general office
purposes 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 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, contaminants, 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 Four Thousand Eight Hundred Eighty-Four
and nine/one hundredths Dollars ($4,884.09) per month, payable on the first day
of each calendar month during the Lease Term commencing with the Commencement
Date. Monthly rent payable under this Section 4 shall be hereinafter referred to
as "Monthly Base Rent." Such Monthly
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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 interest.
5. BASE MONTHLY RENTAL RATE ESCALATION, BASED UPON INCREASES IN REAL
ESTATE TAXES, OPERATING COST 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 other 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. Operating Costs of the Building shall mean the costs of all
heat, cooling, utilities, insurance, janitorial and cleaning service, security
services, rental, monitoring and maintenance expenses associated with security
equipment, salaries, wages and other personnel costs of engineering,
superintendents, watchmen and other Building employees, charges by an
independent CPA firm to prepare the Expense Statement, charges under
maintenance and service contracts for chillers, boilers, controls and/or
elevators, exterior and interior window cleaning, alarm systems and Building
and grounds maintenance, management fees (including management fees by Xxxxxxx
Properties), leasing expenses for the lease of equipment designed to decrease
operating expenses, all maintenance and repair expenses and supplies which are
deducted for such calendar year (and not capitalized) for federal income tax
purposes, and all other costs and expenses of operating the office area, common
area and garage associated with the Building; provided, however, that Operating
Costs of the Building shall not include (i) leasing commissions and (ii)
payments of principal and interest on any mortgages, deeds of trust or other
encumbrances upon the Building. Operating Costs of the Building shall include,
in addition to the above, the cost of any capital improvements designed to
decrease operating expenses and any improvements required by law after the
initial occupancy. The cost of capital
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improvements designed to decrease operating expenses shall be amortized over
the life of the particular asset and, to this extent, shall be included in
Operating Costs of the Building.
5. Base Year shall be the period January 1, 1997 to
December 31, 1997.
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, 1997 and ending December 31, 1997.
9. Base Real Estate Taxes shall mean the taxes payable for
the Base Tax Year.
10. Lessee's Proportionate Percentage shall mean one and
fifty-eight/one hundredths percent (1.58%) and shall represent the agreed
percentage of the Building for purposes of computing Lessee's allocable share of
any change in Real Estate Taxes or Operating Costs provided hereunder.
B. Increase 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 levied on the Building and the Land on which the Building is
situated over the Base Real Estate 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. Increase in Operating Costs
(i) For each Comparison Year after the Base Year, as herein defined,
Lessee shall pay to Lessor as additional Rent Lessee's Proportionate Percentage
of the increase (if any) in the Operating Costs of the Building as herein
defined, for such Comparison Year over the Operating Costs of the Building for
the Base Year as herein defined. Within one hundred eighty (180) days after the
expiration of each Comparison Year during the Lease Term, or as soon thereafter
as is reasonably possible, a certified public accountant selected by Lessor
shall audit the books and records of Lessor and shall make a determination of
the increase in the Operating Costs of the Building for such Comparison Year
over the Operating Costs of the Building for the Base Year. Lessor shall submit
to Lessee a statement (the "Expense Statement") of the aforesaid determination,
including Lessee's Proportionate Percentage of such increase ("Lessee's Expense
Increase Share"). Within fifteen (15) days after the delivery of the Expense
Statement, Lessee shall pay to Lessor Lessee's Expense Increase Share. In the
event Lessee fails to dispute any such Expense Statement within thirty (30)
days following delivery of such Expense Statement, such Expense Statement shall
be deemed final and conclusive against Lessee.
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(ii) In order to provide for payment by Lessee of Lessee's Anticipated
Expense Increase Share for each Comparison Year on an estimated monthly
installment basis during each Comparison Year, said installments due with the
Monthly Base Rent, Lessee agrees that commencing with the first month of the
first Comparison Year of the Lease, Lessee shall pay to Lessor an amount equal
to one-twelfth (1/12) of Lessee's Anticipated Expense Increase Share, which
amount shall be 3% of the previous year's Monthly Base Rent, plus Lessee's
Proportionate Percentage of any actual increase, if any, in the Operating Costs
of the Building for the prior Comparison Year over the Operating Costs of the
Building for the Base Year, which additional monthly payment shall be applied
as a credit against Lessee's Expense Increase Share for such Comparison Year.
In the event that after the operating expenses for such Comparison Year have
been determined and such additional monthly payments for Lessee's Anticipated
Expense Increase Share are in excess of Lessee's Expense Increase Share for
such Comparison Year, Lessor shall promptly refund such excess to Lessee. In
the event that the amount of such monthly payment is insufficient to pay the
full amount of Lessee's Expense Increase Share for such Comparison Year, Lessee
shall pay to Lessor, within fifteen (15) days after the delivery of the Expense
Statement, the entire amount of such deficiency. If this Lease expires on other
than the last day of the Comparison Year, Lessee's Expense Increase Share shall
be equitably adjusted to exclude the portion of such Comparison Year during
which this Lease is not in effect.
(iii) In the event that the Building is less than 90% occupied for a
period exceeding ninety (90) days during any Comparison Year of this Lease,
then those components of Operating Costs during the Comparison Year which vary
according to the level of occupancy of the Building (e.g. as the case may be,
electricity, gas, trash, etc.) will be adjusted as reasonably estimated by
Lessor to reflect the Building as 90% occupied for purpose of determining
Lessee's Expense Increase Share and Lessee's Anticipated Expense Increase
Share. It is recognized, however, that the level of said variable expenses does
not necessarily vary on a linear basis relative to the occupancy level.
Expenses which do not normally vary according to the level of occupancy of the
Building, such as Building Engineer expenses, shall not be adjusted.
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 exercise 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 exercise tax
shall be paid by Lessee.
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6. DEPOSIT
Simultaneously with the execution of this Lease, Lessee shall
deposit with Lessor the sum of Nine Thousand Seven Hundred Sixty-Eight and
18/100 Dollars ($9,768.18), 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 to Lessee for the return of such
Security Deposit.
7. ASSIGNMENT AND SUBLETTING
(a) Lessee will 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 or Lessor's attorneys including
in-house counsel, such reasonable costs as may be incurred by Lessor in the
review of the proposed sublessee credentials, financial information and other
information required by Lessor) 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 matter of record affecting title to the Building, or any
other agreement, judgment or
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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 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 Lessee 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 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.
8. MAINTENANCE BY LESSEE
Lessee, subject to Section 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
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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. All alterations, decorations, additions or improvements, structural
or otherwise, in or to the Demised Premises or the Building shall be performed
by Lessor's designated contractor.
(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
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 if Lessee is not in default in the performance of any of
its obligations under this Lease, 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. Should the Lessor elect that alterations, decorations, and 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 Lessee's expense and the Lessee hereby agrees to reimburse the
Lessor for the cost of such removal
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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) Lessee agrees to accept possession of the Demised Premises in its
"as-is" condition, with all faults.
(b) Lessee may undertake to have 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 occupancy certificate to Lessor, (vi) all work must be performed by
Lessor's designated contractor, and (vii) Lessee shall comply with all such
other reasonable restrictions and conditions as Lessor may impose.
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
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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 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
Lessee will not install or operate in the Demised Premises any electrically
operated equipment or other machinery, other than electric typewriters, adding
machines, radios, televisions, tape recorders, dictaphones, bookkeeping
machines, telefax machines, personal computers and associated peripheral
equipment, copy machines, coffee machines, microwave ovens and clocks, without
first obtaining the prior written consent of Lessor who may condition such
consent upon the payment by Lessee of additional Rent in compensation for such
excess consumption of the utilities, for additional wear, tear or depreciation
to base Building equipment occasioned from such usage, and for the cost of
additional wiring as may be occasioned by the operation of said equipment of a
kind or nature whatsoever which will or may necessitate any changes,
replacements or additions to, or in the use, the water system, heating system,
plumbing system, air-conditioning system, or electrical system of the Demised
Premises or the Building. Business machines and mechanical equipment belonging
to Lessee which cause noise or vibration that may be transmitted to the
structure of the Building or to any space therein to such a degree as to be
objectionable to Lessor or to any tenant in the Building shall be installed and
maintained by Lessee, at Lessee's expense, on vibration eliminators or other
devices sufficient to eliminate such noise and vibration.
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, on the Property or in the Demised Premises by Lessee
or Lessee's Agents
16. SERVICES AND UTILITIES
Lessor shall furnish reasonably adequate electricity, water, lavatory
supplies, and automatically operated elevator service and normal and customary
cleaning and char service (on a five (5) day week basis exclusive of legal
holidays) after business hours. Lessor shall furnish hot and cold water at those
points of supply provided for general use of other tenants in the Building,
central heat and air-conditioning in season, at such times as Lessor normally
furnishes these services to other tenants in the Building, and at such
temperatures and in such amounts as are considered by Lessor to be standard,
Monday through Friday, from 8 a.m. to 6 p.m. and on Saturday from 8 a.m. to 1
p.m. exclusive of Sundays and holidays during such seasons of the year when such
services are normally and usually furnished in the modern office buildings in
the Washington, D.C. metropolitan area; routine maintenance, painting and
electric lighting service for all public areas, garage and special service areas
of the Building in the manner and to the extent deemed by lessor to be standard;
proper electrical facilities to furnish sufficient power to machines of low
electrical consumption provided, however, that, except for reasonable quantities
of low electrical consumption equipment which Lessee is permitted to install in
the Demised Premises pursuant to Section 14 without Lessor's consent, Lessee
shall bear the utility costs occasioned by electro-data processing machines,
including air-conditioning costs therefor, mini computers, mainframe computers
and similar machines of high electrical consumption; all subject to Federal,
State and County governmental controls and regulations; but failure by Lessor to
any extent to furnish these defined services, or any cessation thereof,
resulting from causes beyond the control of Lessor, 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
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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.
Subject to the terms hereof, regular maintenance and repairs, and
circumstances and events beyond the reasonable control of Lessor, Lessor shall
provide heat and air conditioning at times in addition to those specified
above, at Lessee's expense upon not less than twenty-four (24) hours written
notice from Lessee, but in not event shall notice be provided later than 11:00
a.m. on a Friday for weekend or holiday overtime operation. Lessee shall pay
Lessor for said after-hours service based upon Lessor's building standard
service charge then-in effect and subject to change from time to time.
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 or
the Property 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.
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, 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
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portion of the term hereby demised shall be deemed to be such sum, if invested
at six percent (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
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
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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 occurrence of any violation of the conditions, covenants, duties
and/or obligations of Lessee herein contained, or any failure or neglect by
Lessee 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 potential or actual
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 Lessor 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;
(viii) the Demised Premises being abandoned, vacant or deserted
and remaining so for five (5) days; or
(ix) any default under the terms of Lessee's Existing Lease with
Lessor (as hereinafter defined).
(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 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
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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 continued 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 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 purpose to give
Lessee any right to terminate or otherwise adversely affect this
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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 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
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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 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, and 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 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.
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.
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,
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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,
LESSEE HEREBY WAIVING ANY NOTICE TO PAY OR QUIT THE DEMISED PREMISES PROVIDED BY
CURRENT OR FUTURE LAW, and Lessee shall remain liable for any and all claims,
cost, damage, expense and liability which Lessor may suffer (including, but not
limited to, reasonable attorneys' fees), 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. LIEN FOR RENT
In consideration of the mutual benefits arising under this Lease, Lessee
hereby grants to Lessor a lien on all property of Lessee now or hereafter placed
in or on the Demised Premises (except such part of any property as may be
exchanged, replaced, or sold from time to time in the ordinary course of
business operation or trade) and such property shall be and remain subject to
such lien of Lessor for payment of all Rent and other sums agreed to be paid by
Lessee herein. Lessee hereby covenants and agrees to execute and deliver to
Lessor, upon Lessor's request, a financing statement in form sufficient to
perfect the Lessor's security interest, as granted pursuant to this Section 35,
in the aforementioned property and proceeds pursuant to the provisions of the
Uniform Commercial Code as enacted in the Commonwealth of Virginia. Said lien
shall be in addition to and cumulative upon the Lessor's liens provided by law.
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.
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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
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. PARKING
During the initial term Lessee shall have the right, subject to Lessor's
regulations and restrictions with respect thereof, to obtain 3.65 parking
passes for each initial 1000 square feet of space leased, rounded to the
closest number (7 spaces), to allow Lessee to park one (1) automobile per
permit in the on-site garage and surface parking lot adjacent to the Building
on an unreserved, non-exclusive basis. Lessor will issue Lessee seven (7)
plastic (permanent) parking passes to be placed, facing out, on the rear view
mirror of Lessee's vehicles. Replacement parking passes for lost permanent
parking passes shall only be issued upon Lessee's agreement to either (i) bear
the cost of replacing all permanent parking passes for the Project, or (ii) pay
the then-current monthly rate for each such lost permanent parking pass (in
which event, a monthly pass shall be issued as such replacement). Other than
vehicles of bona fide visitors in bona fide visitor parking spaces, vehicles
without Lessor-provided parking passes may be subject to towing, booting or
parking charge without prior notice at the sole risk and expense of the vehicle
owner, in Lessor's sole discretion. The foregoing parking rights shall be free
of charge and without cost to Lessee (except as otherwise provided in this
Section 39 or in Section 5 hereof).
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.
(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
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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 judgment (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 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 Lessor 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.
(g) 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
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not constitute a reservation of or option for the Demised Premises or create any
legal obligation or liability whatsoever on Lessor.
(i) Attorneys' Fees. Lessee shall pay all of Lessor's costs, charges and
expenses (including, but not limited to, court costs and attorneys' fees)
incurred (i) in enforcing Lessee's obligations under this Lease, (ii) in any
action brought by Lessee in which Lessor is the prevailing party, and (iii) in
any litigation, negotiation or transaction in which Lessor, without Lessor's
fault, becomes involved or concerned as a consequence of Lessee's acts or
omissions, whether such costs, charges or expenses are incurred in court
(whether at the administrative, trial or appellate levels) or out of court. For
purposes of this Section 40(i), Lessor shall be deemed to be the prevailing
party with respect to any suit or action where, upon resolution of the claim
(whether by voluntary withdrawal by Lessee, unilateral action, mutual
settlement, dismissal or judgment), Lessor has substantially prevailed in the
assertion of its claims or the assertion of its defenses, as the case may be;
provided that, Lessor shall in all events be deemed to be the prevailing party
in any action in which Lessor is granted a judgment for possession of the
Demised Premises or possession of the Demised Premises is surrendered to 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. EXISTING LEASE
Lessor and Lessee hereby acknowledge and agree that they are the landlord
and tenant, respectively, under that certain Deed of Lease dated September 3,
1997 (the "Existing Lease") pursuant to which Lessor demised certain premises on
level B-2 of the Building to Lessee (the "Original Premises"). Nothing herein
contained shall be deemed to amend or modify the Existing Lease, or to waive any
sums due or to become due to Lessor thereunder. This Lease, together with
Exhibits A and C attached hereto and made a part hereof, contains and embodies
the entire agreement of the parties hereto with respect to the Demised Premises,
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.
43. OPTION TO RENEW
(a) Provided Lessee is not in default, Lessee shall have the 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").
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 43 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 shall be on all of the same terms and conditions as
the Initial Term, except that (i) the Monthly Base Rent shall be as determined
pursuant to sub-paragraph (b), and (ii) there shall be no further Renewal Terms
after the first (1st) Renewal Term.
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(b) The Monthly Base Rent payable by Lessee during the Renewal Term
shall be one hundred percent (100%) of the prevailing market rental rate for
comparable first-class office space in first-class buildings in the Tysons
Corner area, but in no event shall the Monthly Base Rent payable during the
first (1st) year of the Renewal Term be less than the Monthly Base Rent and all
additional Rent (as required under Sections 5B, 5C and 5D) accrued with respect
to the last full month preceding the commencement date of the Renewal Term. The
Monthly Base Rent payable during the Renewal Term shall be increased annually,
on each anniversary date of the commencement of the Renewal Term, in accordance
with Section 5D. Promptly following delivery of Lessee's notice of the exercise
of the renewal option, Lessor and Lessee shall meet and negotiate in good faith
toward agreement on the prevailing market rental rate for Demised Premises In
the event that Lessor and Lessee are unable to agree in good faith on the
then-prevailing market rental rate as above described within sixty (60) days
after the Lessee gives a valid notice of the exercise of its option for the
Renewal Term. Lessee's option for the Renewal Term and any purported exercise
thereof shall be null and void and this Section 43 shall be of no further force
or effect.
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:
[SIG] By: [SIG]
----------------------------- --------------------
LESSEE:
ATTEST: ABOVENET COMMUNICATIONS, INC., a
California corporation
/s/ XXXXXXX X. XXXXXX By /s/ XXXXXXX XXXX
----------------------------- --------------------
Xxxxxxx X. Xxxxxx, Secretary, Xxxxxxx Xxxx, CEO
Exec. X.X. & XXX
-00-
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XXXXX XX XXXXXXXX )
) 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
30th day of January, 1998, has acknowledged the same before me in the County of
Fairfax.
Given under my hand and official seal this 26th day of February, 1998. My
term of office expires on the 28th day of February 1998.
[SIG]
------------------------------
Notary Public
STATE OF Virginia )
) ss:
COUNTY OF Fairfax )
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 30th
day of January, 1998 has acknowledged the same before me in the County of
Fairfax.
Given under my hand and official seal this 18th day of March, 1998. My
term of office expires on the 28th day of February, 2002.
[SIG]
------------------------------
Notary Public
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INTERNATIONAL GATEWAY
FIRST FLOOR
EXHIBIT "A"
23
EXHIBIT "B"
INTENTIONALLY OMITTED
-23-
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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. 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 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 Premises.
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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. 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 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. Each Lessee, before closing and leaving the Demised Premises at
any time, shall see that all lights are turned off.
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.
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23. Access plates to underfloor conduits shall be left exposed. Where
carpet is installed, carpet shall be cut around these 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 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 Lessor will furnish and install the light bulbs for the
Building standard fixtures only. For special fixtures the Lessee will stock his
own bulbs, which will be installed by the Lessor when so requested by the
Lessee.
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 this 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 similar waiver in writing
from Lessor.
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