EXHIBIT 10.1
0000 Xxxxxxxxxx Xxxxx
Lease
Between
e.spire Communications, Inc.
and
X. X. Xxxx Real Estate Investment Trust
0000 XXXXXXXXXX XXXXX XXXXXX LEASE
THIS LEASE, made this 9th day of February, 1999, by and between (i) X.
X. Xxxx Real Estate Investment Trust (hereinafter "Landlord") and (ii) e.spire
Communications, Inc., a Delaware corporation (hereinafter "Tenant").
WITNESSETH:
. Premises.
For and in consideration of the rent hereinafter reserved and the
mutual covenants hereinafter contained, Landlord does hereby lease and demise
unto Tenant, and Tenant does hereby hire, lease and accept, from Landlord,
certain space and improvements comprising approximately 29,048 gross rentable
square feet, as measured in accordance with BOMA (Building, Owner and Management
Association) standards, of office space (the "Gross Area") on the 11th floor of
the building known as 0000 Xxxxxxxxxx Xxxxx (the "Building") located at 0000
Xxxxxxxxxx Xxxxx, XxXxxx, Xxxxxxx Xxxxxx, Xxxxxxxx, all upon the terms and
conditions hereinafter set forth. That portion of the Gross Area which Tenant
shall be entitled to occupy is hereinafter referred to as the "Premises", and is
outlined in red on the floor plan attached hereto as Exhibit A and by this
reference made a part hereof. It is specifically understood that for purposes of
calculating any payments or pro-rations hereunder, the number of gross rentable
square feet set forth above shall control.
. Term. The term of this lease shall commence on the date hereof
(the "Lease Date") and shall end Eighty-four (84) months after the
"Rent Commencement Date", as hereinafter defined.
. The "Rent Commencement Date" shall be the first to occur of (i) the date
Tenant actually commences occupancy of the Premises, or (ii) forty (40) days
after Landlord delivers the Premises to Tenant. In the event the Rent
Commencement Date is a date other than the first day of a calendar month, the
term of the lease shall run for the number of months set forth above from the
first day of the calendar month following the Rent Commencement Date. Landlord
and Tenant hereby agree to execute an agreement (the "Commencement and Estoppel
Agreement" attached hereto as Exhibit F) specifying the Rent Commencement Date
hereof.
Rent.
. Commencing with the Rent Commencement Date, Tenant shall pay (the
"Base Rent") for month one and two of the Lease the sum of Thirty-six Thousand
Seven and 42/100 Dollars ($36,007.42). Tenant shall pay as Base Rent for month
three of the Lease the sum of Fifty-four Thousand Eleven and 12/100 Dollars
($54,011.12). Tenant shall pay as Base Rent for months four through twelve of
the Lease the sum of Seventy-two Thousand Fourteen and 83/100 Dollars
($72,014.83). All monthly installments of rent shall be payable to Landlord or
its designated agent, in advance, without previous notice or demand therefor,
and without recoupment, deduction or setoff, with the first monthly installment
to be due and payable no later than the Rent Commencement Date and each
subsequent monthly installment to be due and payable on the first day of each
and every month following the Rent Commencement Date during the term hereof. If
the Rent Commencement Date is a date other than the first day of a month, rent
for the period commencing with and including the Rent Commencement Date until
the first day of the following month shall be pro-rated at the rate of
one-thirtieth (1/30th) of the fixed monthly rental per day.
() Beginning in year two of the Lease, Tenant shall pay as
annual rent for the Premises the sum of Eight Hundred Ninety Thousand
One Hundred Three and 24/100 Dollars ($890,103.24) per annum, payable
in equal monthly installments of Seventy-four Thousand One Hundred
Seventy-five and 27/100 Dollars ($74,175.27) each.
() Beginning in year three of the Lease, Tenant shall pay as
annual rent for the Premises the sum of Ninety Hundred Sixteen Thousand
Eight Hundred Six and 36/100 Dollars ($916,806.36) per annum, payable
in equal monthly installments of Seventy-six Thousand Four Hundred and
53/100 Dollars ($76,400.53) each.
() Beginning in year four of the Lease, Tenant shall pay as
annual rent for the Premises the sum of Nine Hundred Forty-four
Thousand Three Hundred Ten and 60/100 Dollars ($944,310.60) per annum,
payable in equal monthly installments of Seventy-eight Thousand Six
Hundred Ninety-two and 58/100 Dollars ($78,692.58) each.
() Beginning in year five of the Lease, Tenant shall pay as
annual rent for the Premises the sum of Nine Hundred Seventy-two
Thousand Six Hundred Thirty-nine and 96/100 Dollars ($972,639.96) per
annum, payable in equal monthly installments of Eighty-one Thousand
Fifty-three and 33/100 Dollars ($81,053.33) each.
() Beginning in year six of the Lease, Tenant shall pay as
annual rent for the Premises the sum of One Million Eight-eight
Thousand Nine Hundred Sixty-three and 16/100 Dollars ($1,088,963.16)
per annum, payable in equal monthly installments of Ninety Thousand
Seven Hundred Forty-six and 93/100 Dollars ($90,746.93) each.
() Beginning in year seven of the Lease, Tenant shall pay as
annual rent for the Premises the sum of One Million One Hundred
Twenty-one Thousand Six Hundred Thirty-two and 08/100 Dollars
($1,121,632.08) per annum, payable in equal monthly installments of
Ninety-three Thousand Four Hundred Sixty-nine and 34/100 Dollars
($93,469.34) each.
. Letter of Credit. . Tenant has elected to deposit a with Landlord in lieu of a
cash security deposit to secure the prompt payment of Base Rent and Additional
Rent under the Lease (the "Lease Liabilities") Letter of Credit Number , in
favor of Landlord as the beneficiary, issued by ________ in the initial amount
of One Hundred Forty-four Thousand Twenty-nine and 66/100 Dollars ($144,029.66),
together with all renewals and extensions thereof and substitutions therefor,
and all cash proceeds thereof (all of the foregoing are herein collectively
referred to as the ("Letter of Credit"). If Tenant fails to renew or replace the
Letter of Credit as provided in this Article 4, Landlord may present the Letter
of Credit for payment by the issuer thereof, and retain the proceeds of the
Letter of Credit as the Security Deposit under this Lease, and, if Landlord
retains the proceeds of the Letter of Credit as the Security Deposit, Landlord
may commingle the deposit with its own funds. If Landlord receives cash proceeds
of the Letter of Credit, such proceeds shall be held as security for the
performance by Tenant or Tenant's covenants and obligations under this Lease, it
being expressly understood that the deposit shall not bear interest to Tenant,
and shall not be considered an advance payment of rental or a measure of
Landlord's damage in case of default by Tenant. Upon the occurrence of any event
of default by Tenant or breach by Tenant of Tenant's covenants under this Lease,
Landlord may, from time to time, without prejudice to any other remedy, use the
security deposit to the extent necessary to make good any arrearage of rent
and/or to correct or repair any damage, injury, expense or liability caused to
Landlord by the event of default or breach of covenant. Any balance of the
security deposit remaining after the full and complete satisfaction of Tenant's
obligations to Landlord shall be returned by Landlord to Tenant upon termination
of this Lease; provided, however, that Landlord may retain all or a portion of
the security until Landlord makes the final annual adjustments of Annual
Operating Costs and Real Estate Taxes and ascertains Tenant's share of such
amounts which accrued prior to the expiration of the term.
. If Tenant defaults in the payment of rent or in the performance or
observance of any other obligations to be performed on its part under this Lease
and does not cure such default within any notice and cure period provided for in
this Lease, Landlord may present the Letter of Credit for payment by the issuer
thereof and apply the proceeds to payment or Base Rent or Additional Rent in
default, and/or to the prepayment of the Base Rent for any subsequent period of
the term and/or to any amount to which Landlord may be entitled under this
Lease; and Tenant shall promptly thereafter restore the Letter of Credit to the
original amount above specified. The right of Landlord to apply the Proceeds of
the Letter of Credit as above specified shall not be construed as a limitation
upon Landlord's right to invoke any other remedy available under this Lease or
at law or equity for breach of this Lease, or to collect the full amount of
damages owing by Tenant on account of such breach. If, by reason of Tenant's
default under this Lease, Landlord terminates this Lease at any time or reenters
the Premises, Landlord may credit against the damages which it suffers but
without waiving its rights to recovery of additional damages to which it may be
entitled and/or apply it to the monthly installments of Base Rent and other
amounts payable under this Lease hereunder in inverse order of accrual.
. The Letter of Credit shall be issued to Landlord, shall be
unconditional (i.e., without requirements or conditions for presentation, honor
or payment), except as expressly provided for below, and shall be irrevocable
during its stated term. The Letter of Credit may state or require that, at the
time that Landlord presents the Letter of Credit for payment, such presentation
shall be accompanied by a written statement executed by any person purporting to
be an authorized officer of the general partner of Landlord as follows:
"This shall certify that a default by Tenant in the payment of rent has
occurred and is continuing under that certain Lease dated by and
between X. X. Xxxx Real Estate Investment Trust, as Landlord, and
e.spire Communications, Inc., as Tenant. Any notice or notices of
default required by such Shopping Center Lease have been given by
Landlord to Tenant and Tenant has not cured within any period for cure
provided for in the Lease. Based upon the foregoing, Landlord hereby
presents Letter of Credit No. for payment and hereby demands that the
issuer thereof draw upon such Letter of Credit and remit the proceeds
of the Letter of Credit to Landlord."
. The Letter of Credit may provide by its terms that, if Landlord has
not previously notified the issuer of the occurrence of an event of default by
Tenant under this Lease, the amount thereof shall be reduced by the sum of
Seventy-two Thousand Fourteen and 83/100 Dollars ($72,014.83) on the fourth
anniversary of the Rent Commencement Date. The Letter of Credit shall state such
reduction in amount as specified in the immediate preceding sentence. In the
alternative, Tenant may provide an initial Letter of Credit in the amount of One
Hundred Forty-four Thousand Twenty-nine and 66/100 Dollars ($144,029.66)
expiring on the third anniversary of the Rent Commencement Date, in which event,
Tenant shall not later than thirty (30) days prior to the third anniversary of
the Rent Commencement Date, provide Landlord with a replacement Letter of Credit
in the amount then required to be maintained by Tenant under clause (i) or (ii)
of this Paragraph 4 (d), as applicable, providing for an additional term of not
less than one (1) year.
. Any Letter of Credit which has an expiration date prior to the
expiration date of the term of this Lease (including any Option Terms exercised
by Tenant) shall also provide that Landlord may present the Letter of Credit for
payment when accompanied by the following written statement:
"Tenant has failed to renew or replace the Letter of Credit ten (10)
days before its expiration date, and Landlord is accordingly entitled
to draw upon the Letter of Credit."
. The Letter of Credit shall also expressly state and provide that the
issuer is entitled to rely on any statement in the forms provided above which
purports on its face to be executed by an officer of Landlord, and that the
issuer is not obligated to verify the authority of any such person to execute
any such statement on Landlord's behalf, nor shall the issuer or Tenant be
liable in any manner whatsoever if any such statement is found to have been
improperly delivered by Landlord, of if such statement is delivered by a person
not duly authorized to do so on Landlord's behalf.
. In addition to all other rights available to it under applicable laws
or otherwise: Landlord, in conjunction with the assignment, pledge, or transfer
of its interest as Landlord under the Lease, shall have the right to assign
therewith Landlord's rights in the Letter of Credit, and any assignee, pledgee,
or transferee shall have the rights of Landlord hereunder with respect to the
Letter of Credit so assigned, pledged, or transferred, and Landlord shall be
thereafter relieved from all duties with respect to any such Letter of Credit,
provided Landlord provides Tenant with written documentation evidencing such
assignment, pledge or transfer.
. Increases in Annual Operating Costs. Tenant agrees to pay to Landlord, as
additional rent, its Pro-Rata Share (as hereinafter defined) of any amount by
which the total Annual Operating Costs (as hereinafter defined), for each
Adjustment Year (as hereinafter defined), exceeds an amount equal to the Annual
Operating Costs for the Premises incurred in fiscal year October 1, 1998 -
September 30, 1999 (the "Base Annual Operating Cost"). For the purposes of this
lease, the Adjustment Year shall mean the twelve month period ending on each
September 30, the first such Adjustment Year being the twelve month period
ending on the first September 30 occurring after the Rent Commencement Date.
. Annually during the term hereof, Landlord shall furnish to Tenant a
statement (the "Annual Statement") of the actual Annual Operating Costs for each
Adjustment Year. Tenant shall, within fifteen (15) business days of its receipt
of said Annual Statement, pay to Landlord its Pro-Rata Share of the difference
between the actual Annual Operating Cost reflected on said Statement and the
Base Annual Operating Cost set forth above (which difference is hereinafter
referred to as the "Increase") or, if Tenant has paid an amount in excess of its
Pro-Rata Share, Landlord will refund such amount to Tenant. Thereafter,
commencing on the first day of October immediately following the Adjustment Year
covered by said Annual Statement, Tenant shall pay to Landlord monthly during
the term hereof, as additional rent, without notice or demand therefor and
without any deduction or setoff whatsoever, an amount equal to one-twelfth
(1/12th) of its Pro-Rata Share of such Increase. Tenant's monthly payment set
forth above shall be adjusted as of the end of each succeeding Adjustment Year
to the actual increase set forth in each successive Annual Statement, and such
adjustment shall be paid within fifteen (15) business days of the date of said
Annual Statement. The amount of any Increase calculated from time to time
pursuant to any Annual Statement shall be used as the basis for calculating
Tenant's monthly payment for the next succeeding twelve (12) month period.
. At any time or times prior to or during the first Adjustment Year,
Landlord may submit to Tenant a statement of Landlord's estimate of Tenant's
Increase for such Adjustment Year. If such estimate is submitted prior to the
first Adjustment Year, Tenant shall pay to Landlord one-twelfth (1/12th ) of the
amount so estimated on the first day of each month in advance, commencing on
October 1 of the Adjustment Year. In case such estimate is submitted during the
first Adjustment Year, Tenant shall, (i) within fifteen (15) days after the
delivery of such statement, make a lump sum payment to Landlord equal to 1/12th
of Tenant's estimated Increase for such Adjustment Year multiplied by the number
of months in such Adjustment Year that will have elapsed prior to the first
monthly payment required by clause (ii) hereof, and (ii) begin paying to
Landlord, as additional monthly rent, due and payable on the first day of each
month, an amount equal to 1/12th of Tenant's Increase as so estimated.
Notwithstanding, in no event shall Tenant pay (or be billed) operating expense
pass-through costs until the commencement of the second lease year.
. For the purposes of this paragraph 5, the following provisions shall
control:
() All monthly payments as may be required hereunder for the
period from the first day of each Adjustment Year through the date of receipt of
the Annual Statement for the preceding Adjustment Year, shall be payable without
demand in full on the first day of the calendar month next following the date of
receipt of said Annual Statement, but not less than ten (10) business days from
Tenant's receipt. Failure by the Landlord to timely provide any Annual Statement
shall not constitute a waiver by Landlord of its rights to payments due pursuant
to this paragraph, and the obligations hereunder shall survive the expiration or
other termination of this Lease.
() For any applicable Adjustment Year that ends after the
expiration date of this Lease, the Increase for that Adjustment Year shall be
apportioned on a per diem basis so that only that portion of such Increase as is
attributable to the portion of such Adjustment Year that occurs during the term
of this Lease, shall be payable by Tenant.
. Tenant's share of Annual Operating Costs ("Tenant's Pro-Rata Share")
for each full or partial fiscal year selected by Landlord during the Term shall
be computed by Landlord by multiplying the amount of Annual Operating Costs by a
fraction obtained by dividing the total number of leasable square feet of space
contained in the Premises by the total leasable area contained within the
Building from time to time. Tenant's Pro-Rata Share is estimated to be 3.05% of
the Annual Operating Costs for the Building and the Property on the date of this
Lease.
Annual Operating Costs as used herein shall include all costs of
operation, maintenance and repair of the Building and its appurtenances as an
office building, comparable to similar office buildings and shall include the
following by way of illustration but not limitation: Real Estate Taxes (as
hereinafter defined), personal property taxes, insurance, and the cost of labor,
materials and services for the operation, maintenance and repair of the
Building, its appurtenances and parking areas (including painting and papering
of common areas and replacement of carpet and flooring in common areas),
including, but not limited to, water and sewer charges, garbage and waste
disposal, license, permit and inspection fees, heat, light, power and other
utilities, chillers, air conditioning and ventilation, elevator service,
plumbing service, window cleaning service, janitorial and cleaning service,
maintenance and service contracts customarily maintained for similar buildings,
landscaping (including upgrades and replacements thereto), security service,
watchmen, guards, and any other personnel engaged in the operation, maintenance
or repair of the Building and its appurtenances together with payroll taxes,
insurance and employee benefits applicable thereto. Also included are management
expenses and fees, legal and accounting fees, the Landlord's general and
administrative expenses and a reserve for parking facilities and roof repairs of
two cents ($.02) per square foot of rentable area. In addition, Annual Operating
Costs shall include (i) depreciation for capital expenditures made by Landlord
to reduce operating expenses if Landlord shall have reasonably determined that
the annual reduction in operating expenses shall exceed depreciation therefor;
depreciation shall be determined by dividing the original cost of such capital
expenditure by the number of years of useful life of the capital item acquired
and the useful life shall be reasonably determined by Landlord in accordance
with generally accepted accounting principles and practices in effect at the
time of acquisition of the capital item, and (ii) the cost of capital
improvements made in order to comply with statutes, rules, regulation or
directives hereafter promulgated by any governmental authority after the Rent
Commencement Date, relating to energy conservation, public safety or other
reason. Any of the services, supplies or materials which may be included in the
computation of Annual Operating Expenses for the Property may be performed by
subsidiaries or affiliates of Landlord. Expenses related to a specific tenant's
premises which are not of general benefit to the other tenants of the Building
and legal fees incurred in connection with other tenant's leases or the
enforcement thereof shall not be included in Annual Operating Costs.
. The term "Real Estate Taxes" means all taxes rates and assessments,
general and special, levied or imposed with respect to the land, buildings and
improvements of which the Premises are a part, including all taxes, rates and
assessments, general and special, levied or imposed for schools, public
betterment, general or local improvements and operations and taxes imposed in
connection with any special taxing district. If the system of real estate
taxation shall be altered or varied and any new tax or levy shall be levied or
imposed on said land, buildings and improvements, and/or Landlord in
substitution for real estate taxes presently levied or imposed on fixtures in
Fairfax County, Virginia, then any such new tax or levy shall be included within
the term "Real Estate Taxes". Should any governmental taxing authority acting
under any law or regulation, levy, assess, or impose a tax, excise and/or
assessment however described (other than an income or franchise tax) upon,
against, on account of, or measured by, in whole or in part, the rent expressly
reserved hereunder, or upon the rent expressly reserved under any other lease or
leasehold interests in the Premises, the Building or the land upon which the
Building is located, as a substitute (in whole or in part) or in addition to any
existing real estate taxes on land with buildings or otherwise, such tax or
excise on rents shall be included within the term "Real Estate Taxes". Actual
and reasonable expenses (consisting of reasonable attorneys' fees, consulting
fees, expert witness fees and similar costs) incurred by Landlord to monitor the
Real Estate Taxes or in obtaining or attempting to obtain a reduction of any
Real Estate Taxes shall be added to and included in the amount of any such Real
Estate Taxes. Real Estate Taxes which are being contested by Landlord shall
nevertheless be included for purposes of the computation of the liability of
Tenant under this paragraph, provided, however, that in the event that Tenant
shall have paid any amount of increased rent pursuant to this paragraph e. and
the Landlord shall thereafter receive a refund of any portion of any Real Estate
Taxes on which such payments shall have been based, Landlord shall pay to Tenant
the Tenant's Pro-Rata Share of such refund. Landlord shall have no obligation to
contest, object to or litigate the levying or imposition of any Real Estate
Taxes and may settle, compromise, consent to, waive or otherwise determine in
its discretion, to abandon any contest with respect to the amount of any Real
Estate Taxes without consent or approval of the Tenant; provided however that
Tenant's pro rata share of expenses related to an appeal of Real Estate Taxes
which is abandoned by Landlord shall not exceed Ten Thousand Dollars ($10,000).
If under Fairfax County or Virginia law or regulations, the Tax Assessor is
required to include leasehold (real property) improvements in determining the
assessed value of the Building, then to the extent that Tenant makes leasehold
improvements (including Tenant's original installation and Tenant's subsequent
alterations, additions, substitutions and improvements) which are in excess of
the building standards, whether done prior to or after the commencement of the
term of this Lease, Tenant shall pay the Real Estate Taxes attributable to the
value of such excess leasehold improvements throughout the term of this Lease
within thirty (30) days after being billed therefor by Landlord.
. Notwithstanding anything set forth in Article 5 to the contrary, of
the average occupancy level of the Building for any calendar is less than 100%,
the Operating Expenses for such calendar year shall be increased by the
additional Operating Expenses, as reasonably estimated by Landlord, that would
have been incurred by Landlord in providing the same services provided to Tenant
(and include in Operating Expenses) if the average occupancy level of the
Building for the calendar year had been 100%. For purposes of the preceding
sentence, the "average occupancy of the Building" for any calendar year shall be
the arithmetic average of the Building Rentable Area occupied by tenants on the
first day of each month during the calendar year.
. Tenant, upon not less than ten (10) days written notice to Landlord,
shall have reasonable access during normal business hours in Landlord's
headquarters office to inspect the books and records of Landlord relating to
Annual Operating Costs and/or to have such books and records audited or
reviewed, at Tenant's expense, for the purpose of verifying the Annual Operating
Costs statement. Tenant shall bear all costs relating to such inspection,
including, but not limited to, costs of photocopies. Any discrepancy in Tenant's
Proportionate Share shall be promptly corrected by a payment of any shortfall to
Landlord by Tenant within thirty (30) days after the applicable audit, or by a
credit against the next payment(s) of Annual Operating Costs due under this
Lease, Tenant shall keep the results of any audit of Annual Operating Costs
confidential.
. Additional Rent. Any amounts required to be paid by Tenant hereunder and any
charges or expenses incurred by Landlord on behalf of Tenant under the terms of
this Lease shall be considered additional rental payable in the same manner and
upon the same terms and conditions as the rent reserved hereunder. Any failure
on the part of Tenant to pay such additional rental when and as the same shall
become due shall entitle Landlord to the remedies available to it for
non-payment of rent.
. Laws and Ordinances. . Tenant will, at its own cost, promptly comply with and
carry out all orders, requirements or conditions now or hereafter imposed upon
it by the ordinances, laws and/or regulations of the Commonwealth of Virginia,
whether required of Landlord or otherwise, in the conduct of Tenant's business.
Tenant will indemnify and save Landlord harmless from all penalties, claims, and
demands resulting from Tenant's failure or negligence in this respect.
. Landlord shall comply with all laws and regulations with regard to
the Common Area of the Building and structural portions of the Building which
Landlord is required to repair pursuant to the terms of this Lease. In addition,
Landlord shall cause the Common Facilities to conform to all applicable legal
and insurance requirements, including the Americans with Disabilities Act
("ADA"), and the Board of Insurance Underwriters. Landlord will indemnify and
save Tenant harmless from all penalties, claims and demands resulting from
Landlord's failure or negligence in this respect.
. Furniture; Fixtures; Electrical Equipment.
. Tenant shall not place a load upon the floor of the Premises
exceeding one hundred (100) pounds per square foot without Landlord's prior
written consent. Business machines, mechanical equipment and materials belonging
to Tenant which cause vibration, noise, cold, heat or fumes that may be
transmitted to the Building or to any other leased space therein to such a
degree as to be objectionable to Landlord or to any other tenant in the Building
shall be placed, maintained, isolated, stored and/or vented by Tenant at its
sole expense so as to absorb and prevent such vibration, noise, cold, heat or
fumes. Tenant shall not keep within or about the Premises any dangerous,
inflammable, toxic or explosive material beyond standard office materials,
except in strict compliance with law and in amounts commonly found in office
buildings similar to the Building. Tenant shall indemnify Landlord and hold it
harmless against any and all damage, injury, or claims resulting from the moving
of Tenant's equipment, furnishings and/or materials into or out of the Premises
or from the storage or operation of the same. Any and all damage or injury to
the Premises or the Building caused by such moving, storage or operation shall
be repaired by Tenant at Tenant's sole cost. If Tenant fails to make any such
repairs, Landlord may do so and Tenant agrees to immediately reimburse Landlord
for any expenses so incurred.
. Tenant will not install or operate in the Premises any electrically
operated equipment, mainframe computers or other machinery, other than electric
typewriters, personal computers, adding machines, standard office duplicating
machines and such other small electrically operated office equipment as is used
in modern offices without first obtaining the prior consent in writing of
Landlord, who may condition such consent upon the installation, at Tenant's
expense, of separate metering devices and the payment by Tenant of additional
rent as compensation for such excess consumption of water and/or electricity or
wiring as may be occasioned by the operation of said equipment or machinery or
the installation of additional metering devices; nor shall Tenant install any
other equipment whatsoever which will or may necessitate any changes,
replacements or additions to the water system, plumbing system, heating system,
air conditioning system or the electrical system of the Premises without the
prior written consent of Landlord.
. Alterations.
. Tenant shall make no alterations or changes, structural or otherwise,
except for non-structural alterations which are cosmetic in nature (i.e.,
consisting of painting and carpeting) to any part of the Premises, either
exterior or interior, without Landlord's written consent. In the event of any
such approved changes, Tenant shall have all work done at its own expense.
Request for such consent shall be accompanied by plans stating in detail
precisely what is to be done. Tenant shall comply with the building codes,
regulations and laws now in force or hereafter enacted in Fairfax County and the
Commonwealth of Virginia which pertain to such work. Any additions,
improvements, alterations and/or installations made by Tenant (except only
office furniture, business and trade fixtures or any equipment including, but
not limited to, telecommunications equipment and related wiring) shall become
and remain a part of the Building and be and remain Landlord's property upon the
termination of Tenant's occupancy of the Premises; provided, however, that if
Landlord gives written notice to Tenant at the expiration or other termination
of this Lease to such effect then, it may require Tenant to restore said
Premises to the same condition which existed on the date Tenant occupied the
Premises for the conduct of business at Tenant's sole cost and expense, except
for ordinary wear and tear; provided, however that unless Landlord shall advise
Tenant at the time of Landlord's consent to any such addition, alteration, that
such addition, alteration, etc. will be required to be removed by Tenant upon
the expiration or termination of this Lease, Tenant shall not be required to
remove any such alteration or addition. Tenant shall save Landlord harmless from
and against all expenses, liens, claims or damages to either property or person
which may or might arise by reason of the making of any such additions,
improvements, alterations and/or installations. If any alteration requiring
Landlord's consent is made without the prior written consent of Landlord,
Landlord may correct or remove the same, and Tenant shall be liable for any and
all expenses incurred by Landlord in the performance of this work. It is further
understood and agreed by Landlord and Tenant that any alterations shall be
conducted on behalf of Tenant and not on behalf of Landlord. It is further
understood and agreed that in the event Landlord shall give its written consent
to Tenant's making any alterations, such written consent shall not be deemed to
be an agreement or consent by Landlord to subject Landlord's interest in the
Premises or the Building to any mechanic's liens which may be filed in respect
of any alterations made by or on behalf of Tenant. If any mechanic's or
materialman's lien (or a petition to establish such lien) is filed in connection
with any Alteration, then such lien (or petition) shall be discharged or bonded
by Tenant at Tenant's expense within ten (10) days after Tenant has notice
thereof by the payment thereof or the filing of a Letter of Credit reasonably
acceptable to Landlord. If Tenant shall fail to discharge any such mechanic's or
materialman's lien, Landlord may, at its option, discharge such lien and treat
the cost thereof (including reasonable attorneys' fees incurred in connection
therewith) as additional rent payable with the next monthly installment of Base
Rent falling due; it being expressly agreed that such discharge by Landlord
shall not be deemed to waive or release the default of Tenant in not discharging
such lien. Landlord reserves the right to change, increase or reduce, from time
to time, the number, composition, dimensions or location of any parking areas,
signs, the Building name, service areas, walkways, roadways or other common
areas or make alterations or additions to the Building, in its sole discretion
provided, however, that if such changes (i) materially and adversely affect
Tenant's use of the Premises, or the parking or common areas, or (ii) materially
reduce the Building's level of common area finishes and services, Landlord shall
not make such changes without Tenant's prior approval, which shall not be
unreasonably withheld, conditioned or delayed.
. Notice of Non-Liability. Notice is hereby given that Landlord shall
not be liable for any labor or materials furnished or to be furnished to Tenant
upon credit, and that no mechanics' or other lien for any such labor or
materials shall attach to or affect the estate or interest of Landlord in and to
the Premises. Whenever and as often as any lien arising out of or in connection
with any work performed, materials furnished or obligations incurred by or on
behalf of Tenant shall have been filed against the Premises, or if any
conditional xxxx of sale shall have been filed for or affecting any materials,
machinery or fixtures used in the construction, repair or operation thereof, or
annexed thereto by Tenant, Tenant shall forthwith take such action by Letter of
Crediting, deposit or payment as will remove or satisfy the lien or conditional
xxxx of sale within ten (10) days of Landlord's written request therefor,
notwithstanding. nothing contained herein shall limit Tenant's right to contest
such lien.
. No approval of plans by Landlord shall be deemed to be a
representation or warranty by Landlord that such plans or the work provided for
therein will comply with applicable codes, laws or regulations or be in
conformance with any insurance or other requirements which affect the Premises,
and Tenant shall have the sole responsibility of complying with all such
requirements notwithstanding Landlord's approval of Tenant's plans.
. Damage. . If the Premises are damaged by fire or other cause covered by
Landlord's policy of fire insurance with extended coverage or other property
damage insurance carried by Landlord, the damage shall be repaired by and at the
expense of Landlord and the rent until such repairs shall have been made shall
xxxxx pro-rata according to the part of the Premises which is unusable by
Tenant. However, if such damage was caused by the negligence of Tenant, its
employees, agents, contractors, visitors or licensees, then all rentals shall be
payable by Tenant during such period. Due allowance shall be made for reasonable
delay which may arise by reason of adjustment of fire insurance by Landlord, and
for personnel delay on account of "labor troubles" or any other cause beyond
Landlord's control. If, however, the Premises are rendered wholly untenantable
by fire or other cause and Landlord shall decide not to rebuild the same, or if
the entire Building be so damaged that Landlord shall decide to demolish it or
not to rebuild it, then or in any of such events, Landlord may, at its option,
cancel and terminate this Lease by giving Tenant notice in writing of its
intention to cancel this lease, whereupon the term of this Lease shall terminate
upon the thirtieth (30th) day after such notice is given, and Tenant shall
vacate the Premises and surrender the same to Landlord. In neither of the
certain contingencies in this paragraph mentioned shall there be any liability
on the part of Landlord to Tenant covering or in respect of any period during
which the occupation of said Premises by Tenant may not be possible because of
the matters hereinabove stated, nor shall Landlord be liable for any damage
incurred by Tenant other than Landlord's obligation to repair the Premises as
aforesaid.
. Notwithstanding anything to the contrary contained in this Lease, if
the Premises are damaged or destroyed by fire, accident, the elements or other
casualty (a "Casualty") to the extent that it will not be possible to rebuild
the Premises within one hundred eighty (180) days after the date of the
Casualty, Landlord shall notify Tenant within thirty (30) days after such
Casualty of Landlord's good faith estimate of the time needed to undertake
reconstruction of the Premises. If (i) Tenant is not then in default under this
Lease beyond the expiration of any applicable notice and cure period, and (ii)
the damage was not caused by Tenant's negligence or willful misconduct, Tenant
shall have the right to terminate this Lease by giving to Landlord notice of
such termination within fifteen (15) days after Landlord provides notice of such
good faith estimate. In the event that Landlord or Tenant do not exercise a
right of termination as provided in this Lease, Landlord shall commence to
repair the damage caused by such Casualty and, thereafter, shall diligently and
continuously pursue completion of such repairs, within the estimated completion
date as set forth in Landlord's notice. If Landlord fails to substantially
complete the repairs within the estimated completion date, Tenant shall have the
right and option, as its sole and exclusive remedy upon no less than thirty (30)
days prior notice to Landlord to terminate this Lease; provided, however, that
any termination of this Lease by Tenant shall be null and void if Landlord
substantially completes repairs within thirty (30) days after receipt of
Tenant's notice of termination.
. Condemnation
. If the Premises or any part thereof shall be taken by any
governmental or quasi-governmental authority pursuant to the power of eminent
domain, or by deed in lieu thereof, Tenant agrees to make no claim for
compensation in the proceedings, and hereby assigns to Landlord any rights which
Tenant may have to any portion of any award made as a result of such taking with
respect to the real property, including, without limitation, with respect to the
real property including, without limitation, the Building and the Tenant's
leasehold, and this Lease shall terminate as to the portion of the Premises
taken by the condemning authority and rental shall be adjusted to the date of
such taking, but Tenant shall be permitted to file a separate claim for any
personal property of Tenant which is taken. The foregoing notwithstanding,
Tenant shall be entitled to claim, prove and receive in the condemnation
proceedings such awards as may be allowed for relocation expenses and for
fixtures and other equipment installed by it which shall not, under the terms of
this Lease, be or become the property of Landlord at the termination hereof, but
only if such awards shall be made by the condemnation court in addition to and
stated separately from the award made by it for the land and the building or
part thereof so taken. Tenant shall have the right to terminate this Lease if
the portion of the Property, Building or Premises taken materially interferes
with Tenant's use of the Premises.
. If the nature, location or extent of any condemnation affecting the
Building is such that Landlord elects in good faith to demolish the Building,
then Landlord may terminate this Lease by giving at least sixty (60) days'
written notice of termination to Tenant at any time after such condemnation and
this Lease shall terminate on the date specified in such notice.
. Use of Premises. The Premises shall be used and occupied by Tenant solely for
the purpose of general office use and as permitted in Article 56, and for no
other purpose whatsoever. Tenant shall permit Landlord to transmit heat, air
conditioning and electric current through the Premises at all times at
Landlord's discretion. The Premises shall not be used for any illegal purpose or
in violation of any valid regulation of any governmental body, or in any manner
to (i) create any nuisance or trespass; (ii) annoy or embarrass Landlord or any
other tenant of the Property; (iii) vitiate any insurance; or (iv) alter the
classification or increase the rate of insurance on the Building to a rate
greater than payable for similar buildings.
. Repairs by Tenant. Tenant agrees to maintain the Premises and the fixtures
therein in good order and in a condition commensurate with comparable or similar
office buildings during the term of this Lease at its sole cost and expense, and
will, at the expiration or other termination of the term hereof, surrender and
deliver up the same and all keys, locks and other fixtures connected therewith
(except only office furniture, business equipment, trade fixtures and
telecommunications equipment, cable and wiring, but Tenant shall repair any such
damage caused by such removal) in like good order and condition ordinary wear
and tear excepted. With respect to property damage only, Landlord will be liable
for property damage caused by the negligence of Landlord or its agents or
employees, subject, however, to the waiver of subrogation set forth in paragraph
18.e.
. Repairs by Landlord. Landlord shall have no duty to Tenant to make any repairs
or improvements to the Premises except structural repairs necessary for safety
and tenantability, and then only if not brought about by any act or neglect of
Tenant, its agents, employees or invitees. Landlord shall not be liable for any
damage (including any consequential damages or lost profits) caused to the
property of Tenant, its agents, employees or invitees, due to the Building or
any part of appurtenances thereof being improperly constructed or being or
becoming out of repair, or arising from the leaking of gas, water, sewer or
steam pipes, or from electricity, or from any other cause whatsoever, and Tenant
agrees to look solely to its own insurance for compensation for any such damage
or loss. Tenant agrees to endeavor to report immediately in writing to Landlord
any defective condition in or about the Premises known to Tenant.
. Roof Rights. Except as provided in Article 54, Landlord shall have the
exclusive right to use all or any portion of the roof of the Building for any
purposes.
. Landlord's Remedies Upon Default. In the event Tenant shall default in the
payment, when due, of any installment of rent or other charges or money
obligation to be paid by Tenant hereunder (all of which monetary obligations of
Tenant shall bear interest at the highest rate allowable by law, not to exceed
eighteen percent (18%) per annum, from the date due until paid in full) within
five (5) business days after the date any such amount is due; provided, however,
that Tenant shall not be in default with respect to the first two (2) monetary
payments received after such five (5) day period in any Lease Year until five
(5) days after Tenant's receipt of written notice of such late payment; or if
Tenant shall default in performing any of the covenants, terms or provisions of
this Lease (other than the payment, when due, of any of Tenant's monetary
obligations hereunder) or any of the Rules and Regulations now or hereafter
established by Landlord to govern the operation of the building and fails to
cure such default within 30 calendar days after written notice thereof from
Landlord; provided, however, that, solely with respect to non-monetary defaults
which cannot with due diligence and best efforts be cured within such thirty
(30) day period if, within such thirty (30) day period Tenant commences and
thereafter diligently pursues the cure of any such non-monetary default, Tenant
shall be granted an additional reasonable period of time to effect a cure; or if
Tenant shall abandon the Premises and discontinue timely rental payments; or if
Tenant is adjudicated a bankrupt; or if a permanent receiver is appointed for
Tenant's property; or if, whether voluntarily or involuntarily, Tenant takes
advantage of any debtor relief proceedings under any present or future law,
whereby the rent or any part thereof, is or is proposed to be, reduced or
payment thereof deferred; or if Tenant makes an assignment for the benefit of
creditors or if Tenant's property or effects should be levied upon or attached
under process against Tenant, not satisfied or dissolved within 10 calendar days
after written notice from Landlord to Tenant to obtain satisfaction thereof;
then, and in any of said events, Landlord, at its option may pursue any one or
more of the following remedies without any notice or demand whatsoever:
. Landlord, at its option, may at once, or at any time thereafter
terminate this Lease by written notice to Tenant, whereupon this Lease shall end
concurrently with the receipt by Tenant of such notice. Upon such termination by
Landlord, Tenant will at once surrender possession of the Premises to Landlord
and remove all of Tenant's effects therefrom, and Landlord may forthwith
re-enter the Premises and repossess himself thereof, and remove all persons and
effects therefrom, using such force as may be necessary, without being guilty of
trespass, forcible entry, detainer or other tort.
. Landlord may, without terminating this Lease, enter upon and take
possession of the Premises and expel or remove Tenant and any other person who
may be occupying the Premises or any part thereof, without being liable for
prosecution or any claim for damages therefor, and, if Landlord so elects, make
such alterations and repairs as, in Landlord's judgment, may be necessary to
relet the Premises, and relet such space or any part thereof for such rent and
for such period of time and subject to such terms and conditions as Landlord may
deem advisable and receive the rent therefor. Upon each such reletting, all rent
received by Landlord from such reletting shall be applied first to the payment
of any indebtedness other than rent due hereunder from Tenant to Landlord,
including interest thereon; second, to the payment of any loss or expense of
such reletting, including brokerage fees, reasonable attorneys' fees,
advertising and promotion expenses and the cost of such alterations and repairs;
third, to the payment of rent due and unpaid hereunder, together with interest
thereon as herein provided; and the residue, if any, shall be held by Landlord
and applied in payment of future rent as the same may become due and payable
hereunder. Tenant agrees to pay to Landlord, on demand, any deficiency that may
arise by reason of such reletting. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such prior default.
. In the event Landlord terminates this Lease in accordance with the
provisions of this paragraph 16, Landlord may, in addition to any other remedy
it may have, recover from Tenant all damages and expenses Landlord may suffer or
incur by reason of Tenant's default hereunder, including, without limitation,
the cost of recovering. the Premises, reasonable attorneys' fees and the worth
at the time of such termination of the excess, if any, of the amount of rent and
charges equivalent to the rent reserved in this Lease for the remainder of the
stated term over the then reasonable rental value of the Premises for the
remainder of the stated term based upon a reduction to present value calculation
at the rate of ten percent (10%), all of which sums shall become immediately due
and payable by Tenant to Landlord upon demand of Landlord.
. Anything in this Lease to the contrary notwithstanding, in order to
cover the extra expense involved in handling delinquent payments, Tenant shall
pay a "late charge" of Two Hundred Fifty and No/100 Dollars ($250.00) when any
installment of rent (basic or otherwise, as may be considered additional rental
under this Lease) is paid more than seven (7) business days after the due date
thereof. It is hereby understood that this charge is for extra expenses incurred
by the Landlord in processing the delinquency and shall not be considered
interest.
. Pursuit of any or the foregoing remedies shall not preclude Landlord
from pursuing any other remedies herein or at law or in equity provided, nor
shall pursuit of any remedy by Landlord constitute a forfeiture or waiver of any
rent due to Landlord hereunder or of any damages accruing to Landlord by reason
of Tenant's violation of any of the covenants and provisions of this Lease.
. Services of Landlord. . Landlord shall furnish reasonably adequate electric
current, elevator service, water and lavatory supplies during normal business
hours, and normal and usual cleaning and janitorial service for the Premises and
Building Common Areas only after business hours. Landlord further agrees to
furnish heat and air conditioning in its reasonable judgment sufficient to
reasonably cool or heat the Premises from 8:00 a.m. to 6:00 p.m., Mondays
through Fridays, inclusive; and from 9:00 a.m. to 1:00 p.m., Saturdays (said
services not being furnished on Sundays or legal holidays), provided, however,
that Landlord shall not be liable for failure to furnish or for suspension or
delay in furnishing such services clue to breakdown, maintenance, or repair
work, strike, riot, civil commotion, governmental action or any other cause
beyond the reasonable control of Landlord, or for interruptions of service for
reasonable periods in connection with construction work being performed in the
Building, notwithstanding, Landlord shall use reasonable efforts not to affect
Tenant's use of Building/Premises as a result of above. Interruption of
service(s) that continues beyond three (3) consecutive days shall entitle Tenant
to an abatement of rent.
. If Landlord defaults in its obligations to maintain and repair the
Premises in accordance with the provisions of this Lease, and such failure of
Landlord will have a material adverse effect on Tenant's ability to operate its
business in the Premises, and any such failure continues for a period in excess
of Thirty (30) days after Landlord receives Tenant's written notice of such
default, then Tenant may, at its option and at its risk, perform any such
maintenance or repairs; provided, however, that if any such default of Landlord
cannot with due diligence and commercially reasonable efforts be cured by
Landlord within the thirty (30) day period after receipt of Tenant's notice, the
period for cure by Landlord shall be extended if, within such thirty (30) day
period Landlord commences and thereafter diligently pursues the cure of any such
default.
. If Tenant elects to cure a default of Landlord, then the reasonable
costs incurred by Tenant in curing any default of Landlord in accordance with
paragraph (b) above shall be reimbursed to Tenant by Landlord within thirty days
after Landlord's receipt of (i) Tenant's invoice for such costs, and (ii) copies
of paid invoices for all such work or expenses incurred, and (iii) if
applicable, lien waivers from all contractors, subcontractors, material
suppliers or other parties having lien rights involved in the performance of
such work. Tenant shall defend, indemnify and save Landlord harmless from and
against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to or interference
with property or the premises of other tenants arising from or out of any
exercise of any rights granted to Tenant under this Article 17.
. Pursuit of any of the foregoing remedies shall not preclude Tenant
from pursuing any other remedies herein or at law or in equity provided, nor
shall pursuit of any remedy by Tenant constitute a forfeiture or waiver of any
amount due to Tenant hereunder or of any damages accruing to Tenant by reason of
Landlord's violation of any of the covenants and provisions of this Lease.
. If Landlord defaults in its obligations to maintain and repair the
Building in accordance with the provisions of this Lease, and such failure of
Landlord will have a material adverse effect on Tenant's ability to operate its
business in the Premises, and any such failure continues for a period in excess
of thirty (30) days after Landlord receives Tenant's written notice of such
default, then Tenant may pursue any remedy available at law or in equity with
respect to such default of Landlord; provided, however, that if any such default
of Landlord cannot with due diligence and commercially reasonable efforts be
cured by Landlord within the thirty (30) day period after receipt of Tenant's
notice, the period for cure by Landlord shall be extended if, within such thirty
(30) day period Landlord commences and thereafter diligently pursues the cure of
any such default.
. Insurance.
. Tenant agrees that it will indemnify and save Landlord harmless from
any and all liabilities, damages, causes of action, suits, claims, judgments,
costs and expenses of any kind (including reasonable attorneys' fees) (i)
relating to or arising from or in connection with the possession, use,
occupation, management, repair, maintenance or control of the Premises or any
portion thereof, or (ii) arising from or in connection with any act or omission
or Tenant or Tenant's agents, employees or invitees, or (iii) resulting from any
injury to person or property or loss of life sustained in or about the Premises.
To assure such indemnity, Tenant shall carry and keep in full force and effect
at all times during the term of this Lease for the protection of Landlord and
Tenant herein, commercial general liability insurance with limits of at least
Two Million Dollars ($2,000,000.00) combined single limit for each occurrence,
with an approved insurance company, and Tenant shall deliver to Landlord a copy
of said policy or a certificate showing the same to be in full force and effect
prior to the Rent Commencement Date and at least annually thereafter.
. Throughout the Lease Term, Tenant shall insure, for their full
insurable value, the contents of the Premises, including furnishings, fixtures
and equipment used or installed in the Premises by or on behalf of Tenant, and
the other personal property of Tenant in the Premises, against loss due to fire
and other casualties included in broad form property insurance policies, with an
agreed amount endorsement and replacement cost coverage.
. Said public liability and property damage insurance policies and any
other insurance policies carried by Tenant with respect to the Premises, shall
(i) be issued by good and solvent insurance companies qualified to do business
in the Commonwealth of Virginia and reasonably satisfactory to Landlord; (ii) be
written as primary policy coverage and not contributing with or in excess of any
coverage which Landlord may carry; (iii) provide for at least 30 days' prior
written notice to Landlord of any cancellation or other expiration of such
policy or any defaults thereunder, Tenant's liability insurance policy shall
name Landlord and Landlord's managing agent (and, if so requested, Landlord's
mortgagee) as additional insureds. Neither the issuance of any insurance policy
required hereunder, nor the minimum limits specified herein with respect to the
Tenant's insurance coverage, shall be deemed to limit or restrict in any way
Tenant's liability arising under or out of this Lease.
. Landlord shall maintain (i) public liability insurance on the common
areas of the Building in amounts not less than those set forth in paragraph (a)
of this Article 18 and (ii) Property Insurance for full replacement cost of the
Building in an amount sufficient to avoid co-insurance.
. () To the extent permitted by law, each of Landlord and Tenant hereby
releases the other, to the extent of all insurance carried (or required to be
carried) by each party under the terms of this Lease, from liability for any
loss or damage caused by fire or other of the extended casualties insured
against; provided, however, that this release shall be in force and effect only
with respect to loss or damage occurring during such time as the releasing
party's insurance policy contain a clause or clauses which provides that: (i)
the insurance company waives subrogation or consents to a waiver of right of
recovery, and (ii) such waiver of subrogation or consent to a waiver of a right
of recovery does not adversely affect or prejudice said policy or the releasing
party's right of full recovery thereunder. Landlord's release of Tenant under
this subparagraph (e) is expressly conditioned upon Tenant's full cooperation
with Landlord's insurance carrier in inspections of the Premises and Tenant's
compliance with all requirements imposed by Landlord's insurance carrier with
respect to any activities in or use of the Premises which increases the risk of
loss to the Building, Property or the Premises.
() If it party advises the other party that a clause of the type
described in paragraph (1) above is (i) not obtainable, or (ii) only obtainable
at additional cost, then such party shall not be obligated to obtain a waiver;
provided, however, that with respect to an inability to obtain a waiver due to
the imposition of additional cost, the party shall promptly notify the other
party of the amount of such additional cost and, if the party desiring that the
other party obtain a waiver agrees in writing to pay the additional cost of
obtaining the waiver, then, upon receipt of such payment, that party shall
obtain a waiver of subrogation for the benefit of the other party, as described
in paragraph (1) above. To the extent that either party is permitted to self
insure as to its personal property located in the Premises, that party will
nevertheless be deemed to be insured for such personal property for the purposes
of this subparagraph (e). . Property at Tenant's Risk. It is understood and
agreed that all personal property in the Premises, of whatever nature, whether
owned by Tenant or any other person, shall be and remain at Tenant's sole risk
and Landlord shall not assume any liability or be liable for any damage to or
loss of such personal property, arising from the bursting, overflowing, or
leaking of the roof or of water, sewer, or steam pipes, or from heating or
plumbing fixtures, or from the handling of electric wires or fixtures, or from
theft or vandalism or from any other cause whatsoever, unless such damage is
caused by negligence of Landlord, its agents or employees (but expressly subject
to the waiver of subrogation set forth in paragraph 18.e.)
. Assignment; Subletting.
. Neither Tenant, nor any of its permitted successors or assigns, shall
transfer, assign, mortgage, encumber, or, by operation of law or otherwise,
pledge, hypothecate, or assign all or any of its interest in this Lease, or
subict or permit the Premises, or any part thereof, to be used by others,
including, but not by way of limitation, concessionaires or licensees of Tenant,
without the prior written consent of Landlord, in each instance, which consent
Landlord shall not unreasonably withhold, condition or delay if Tenant fully
complies with the requirements of this Article 20 and other provisions of this
Lease. Any such subletting or assignment shall be referred to as a "Transfer"
(as further defined in this Article 20, subparagraph (b) below), and the person
to whom Tenant's interest is transferred shall be referred to as a "Transferee".
. For the purposes of this Article 20, the term "Transfer" shall also
include the following circumstances:
() if Tenant or any guarantor of this Lease is a corporation (other
than a corporation, the outstanding voting stock of which is listed on a
national securities exchange, as defined in the Securities Exchange Act of
1934), if the shares of such corporation are transferred by sale, assignment,
bequest, inheritance, operation of law or otherwise (including, without
limitation, a transfer to or by a receiver or trustee in federal or state
bankruptcy, insolvency or other proceeding), so as to result in or make possible
a change in the present control of such corporation;
() if Tenant or any guarantor of this Lease is a partnership, any
change in control or ownership of such partnership;
() any transfer by sale, assignment, bequest, inheritance, operation of
law or other disposition of all or substantially all of the assets of Tenant or
any guarantor which results in or makes possible a change in the present control
of the business of Tenant or any such guarantor;
() any other change in ownership of Tenant, any guarantor of this
Lease;
() any subletting or assignment which occurs by operation of law,
merger, consolidation, or reorganization; or
() any sale of all, or substantially all, of Tenant's assets unless,
in connection therewith, this Lease is assigned to the acquiring party, as
provided in paragraph 20(i) below.
In no event may Tenant assign this Lease, or sublease the Premises, if
Tenant is in default under this Lease.
. In the event that Tenant desires to effect a Transfer hereunder,
Tenant shall give Landlord written notice (the "Transfer Notice") thereof. To be
effective, the Transfer Notice after the initial subleasing effort shall be
accompanied by Tenant's check, payable to the order of Landlord, or Landlord's
Agent, in an amount equal to the greater of (i) $500.00 or (ii) one percent (1%)
of the Minimum Rent to compensate Landlord (not to exceed $1500.00) for the cost
of reviewing the proposed Transfer and specify the proposed Transferee, and the
proposed terms of the Transfer, and contain such information about the proposed
Transferee, its experience, its financial situation, its methods of operation,
and provided its business operation being consistent with those found in
comparable office buildings, as a prudent businessman would require in making
the Transfer decision. Tenant specifically agrees to apprise Landlord of any
adverse or negative information in its possession concerning the proposed
Transfer and the proposed Transferee. The Transfer Notice shall also contain a
certificate by Tenant (or an officer or general partner of Tenant if Tenant is a
corporation or partnership) of all "Transfer Consideration" (as defined below,
or payable in connection with the proposed Transfer. Within five (5) days during
the initial subleasing and forty-five (45) days thereafter of the receipt of the
Transfer Notice Landlord shall, by written notice to Tenant, elect (i) to permit
the proposed Transfer; (ii) to terminate this Lease with respect to the portion
of the Premises proposed to be Transferred, but Tenant may, within five (5)
business days after receipt of Landlord's notice of termination, rescind its
request for consent to a Transfer, in which event this Lease will not terminate;
(iii) to sublet with the right to further sublet from Tenant for the balance of
the term of this Lease (a) all of the Premises, or (b) only so much of the Lease
Premises as Tenant proposed to Transfer, at the same rental as Tenant is
obligated to pay to Landlord hereunder; or (iv) to deny consent to the proposed
Transfer, in which event Tenant shall continue to occupy the Lease Premises and
comply with all of the terms and conditions hereof. Notwithstanding the
foregoing, Landlord shall not have the options provided by (ii), (iii), and (iv)
of this subparagraph (c) with regard to the initial subletting of up to one-half
of the Premises as provided in accordance with the provisions of paragraph 20.h.
. If this Lease is Transferred under the definition of a Transfer (as
defined in Article 20, subparagraphs (a) and (b)), the Transferee shall assume
by written instrument all of Tenant's obligations under this Lease and such
Transferee, at least five (5) days prior to the effective date of the permitted
Transfer, shall deliver to Landlord the proposed sublease, assignment and
assumption agreement or other instrument evidencing the Transfer and the
Transferee's undertaking to perform Tenant's obligations under this Lease.
Except for the Transfer as permitted in this Article 20, subparagraph i, all of
such documents shall be subject to Landlord's prior written approval not to be
unreasonably withheld, conditioned or delayed. In the event of any Transfer,
including a permitted Transfer, Tenant shall continue to be liable hereunder,
and shall not be released from performance hereunder. In addition to the Rent
reserved hereunder, except as provided in paragraph 20.h. below and except in
the case of a Transfer as specified in this Article, subparagraph i below,
Tenant shall pay to Landlord all monies, property and other consideration of
every kind whatsoever paid or payable to Tenant in consideration of or related
to such Transfer and for all property transferred to the Transferee, as all or
part of the consideration including, without limitation, fixtures, other
Leasehold Improvements, furniture, equipment and furnishings (collectively, all
of the foregoing monies, property and other consideration shall be referred to
as the "Transfer Consideration"), but excluding bona fide consideration paid for
transfer of Tenant's property. Following an assignment of this Lease, Landlord
shall send the named Tenant any notice of default by the approved Transferee.
. Any Transfer, except as provided in subparagraph i below, without
Landlord's consent, whether as a result of any act or omission of Tenant, or by
operation of law or otherwise, shall not be binding upon Landlord, and shall
confer no rights upon any third person. Each such unpermitted Transfer shall,
without notice or grace period of any kind, constitute a default by Tenant under
this Lease. The acceptance by Landlord of the payment of Rent following any
Transfer prohibited by this Article 20 shall not be deemed to be a consent by
Landlord to any such Transfer, an acceptance of the Transferee as a tenant, a
release of Tenant from the performance of any covenants herein contained, or a
waiver by Landlord of any remedy of Landlord under this Lease, although amounts
actually received shall be credited by Landlord against Tenant's rent
obligations. Consent by Landlord to any one Transfer shall not constitute a
waiver of the requirement for consent to any other Transfer. No reference in
this Lease to assignees, concessionaires, subtenants or licensees shall be
deemed to be a consent by Landlord to the occupancy of the Lease Premises by any
such assignee, concessionaire, subtenant or licensee.
. If Tenant is a corporation, limited liability company or partnership,
Tenant represents that the ownership and power to vote its entire outstanding
capital stock or partnership interests belongs to and is vested in the persons
listed on Exhibit "E". The foregoing provisions of this paragraph (f) shall not
apply to a publicly held entity whose outstanding voting stock is listed on a
national securities exchange, as defined in the Securities Exchange Act of 1934.
. If any sublease or assignment provides that the subtenant or assignee
is to pay any amount in excess of the rent and other charges due under this
Lease, then whether such excess is in the form of an increased monthly or annual
rental, a lump sum payment (excluding a bona fide security deposit), payment for
the sale, transfer or lease of Tenant's fixtures, leasehold improvements,
furniture and other personal property, but excluding bona fide consideration
paid for transfer of Tenant's property, or any other form (and if the subleased
or assigned space does not constitute the entire Premises, the existence of such
excess shall be determined on a pro rata basis), but excluding bona fide
consideration paid for transfer of Tenant's property, Tenant shall pay to
Landlord any such excess as additional rent no later than ten (10) days after
Tenant's receipt thereof.
. Notwithstanding anything set forth in this Article 20 to the
contrary, if Tenant fully complies with the requirements and conditions of this
Article 20 and other provisions of this Lease, then, on one (1) occasion during
the term of this Lease (including any Option Terms), Tenant may sublease one
half (1/2) or less of the floor area of the Premises, to multiple tenants, for
the purpose set forth in this Lease, provided, however, that in any such event,
Tenant shall continue to remain fully liable under this Lease for the
performance of all of the terms contained herein. Notwithstanding anything set
forth herein to the contrary, with respect to the first such sublease of a
portion of the Premises Landlord shall not be entitled to receive any of the
Transfer Consideration, but after the first such Subletting, one-half (1/2) of
all Transfer Consideration and all rental amounts and any additional payments
arising under any sublease in excess of any rentals contained in this Lease,
shall be payable to Landlord. The liability of any Guarantor of this Lease shall
not be affected as a result or any assignment permitted under this subparagraph
(h). Landlord's agreement to permit a sublease as provided for in this paragraph
shall not create any rights in the subtenant against Landlord or any privity
between Landlord and the subtenant named in the sublease. In the event of any
conflict between the provisions set forth in any sublease and the provisions of
this Lease, the provisions of this Lease shall control with respect the rights
and remedies of Landlord. Notwithstanding anything in the foregoing document to
the contrary, any sublease shall be expressly under and subject to the
provisions of this Lease, and the sublease shall not be deemed Landlord's
consent to (i) any action of the subtenant provided for in the sublease, or (ii)
the approved or acceptance by Landlord of any terms or conditions contained in
the sublease, or (iii) the assumption of any obligations by Landlord not
expressly provided for in this Lease.
. Notwithstanding anything contained herein to the contrary (including
the obligations any procedures as specified in this Article 20 subparagraphs (c)
or (g) herein), Tenant may, without the prior written consent of Landlord,
assign this Lease for the use and occupation of the Premises solely for the
purpose set forth in Article 12 to the following:
() Tenant's parent or subsidiary corporation or to a corporation under
common ownership with and controlled by the same persons who control Tenant, or
() any party which acquires substantially all of the assets of Tenant,
or
() to a corporation into which Tenant merges or consolidates,
provided, however, that in each such event described in the above subparagraphs
(i) through (iii):
() such assignee shall assume in writing all of Tenant's obligations
hereunder; and
() Tenant continues to remain liable under this Lease for the
performance of all of the terms contained herein including but not limited to
the payment of Base Rent, and all Additional Rent due under this Lease;
The provisions (i) through (iii) of this paragraph (i) shall not permit
a Transfer in the event that Tenant is acquired by another corporation and
becomes a subsidiary thereof, (x) unless Tenant continues to be operated as a
separately identified company, substantially in the same manner as before such
acquisition, or (y) if, after such acquisition, or as a result thereof, Tenant's
net worth will decline by twenty-five percent (25%) or more, unless in such case
of reduced net worth, the parent of the party acquiring Tenant agrees to
guaranty Tenant's obligations under this Lease. The liability of any Guarantor
of this Lease shall not be affected as a result of any assignment permitted
under this subparagraph (i).
No Transfer will be permitted under this subparagraph (i) if such
Transfer would result in:
() a Transfer of this Lease or the ownership interests in any
Transferee to an entity not affiliated with Tenant through common ownership and
control (except for a purchase of Tenant's assets, in accordance with the
provisions set forth above), or
() a Transfer of this Lease to an entity outside the ownership family
to which Tenant belongs (except for a purchase of Tenant's assets, in accordance
with the provisions set forth above) as a means of defeating the other
provisions of this Article 20 which require Landlord's consent to a Transfer.
Liquidated Damages:
Tenant acknowledges that it is important to Landlord to know of the occurrence
of an assignment and the identity an assignee, and that damage to Landlord will
be difficult to ascertain if Tenant fails to notify Landlord of an assignment
permitted under this paragraph 20 (i). Therefore, if Tenant fails to notify
Landlord of any such assignment, Tenant shall be in default under this Lease;
provided, however, that
(1) if Tenant's failure to notify is due to negligence or inadvertence, Tenant
shall pay to Landlord liquidated damages equal to the lesser of (A) One Hundred
Dollars ($100.00) per day for each day after the occurrence of any such
assignment until Landlord receives notice of the assignment or (B) Five Thousand
Dollars ($5,000.00), or (2) Tenant's failure to notify is intentional (which
Tenant may contest if Tenant disputes Landlord's claim that such failure was
intentional), then Landlord shall be entitled to pursue any remedy available
under this Lease or at law (in equity and/or collect liquidated damages equal to
the amount of One Hundred Dollars ($100.00) per day for each day after the
occurrence of any such assignment until Landlord receives notice of the
assignment.
. Signs.
. No sign, advertisement or notice shall be inscribed, painted, affixed
or displayed on the windows or exterior walls of the Premises or on any public
area of the Building, except the directories and the office doors, and then only
in such places, numbers, sizes, colors and style as are approved by Landlord and
which conform to all applicable laws and/or ordinances.
Landlord agrees to install at Tenant's cost signage on the Greensboro Drive side
of the building above the twelfth (12th) floor parapet on the Greensboro Drive
side of the building. This signage shall be illuminated (if permitted by law)
and shall not exceed 100 square feet and design and location of installation
shall be subject to Landlord's approval.
. Rules and Regulations. Tenant shall at all times comply with the rules and
regulations set forth on Exhibit C attached hereto, and with any additions
thereto and modifications thereof adopted from time to time by Landlord, and
each such rule or regulation shall be deerned to be a covenant of this Lease to
be performed and observed by Tenant.
. Intentionally Deleted.
. Parking. Tenant may lease from Landlord, during the term of this Lease, no
more than 87 parking spaces in the parking garage adjacent to the Building
without Landlord's consent. All parking spaces are leased on a non-exclusive
basis, provided, however, Landlord reserves the right to designate or assign
specific parking spaces for Tenant's use or for the use of other Building
tenants in a non-discriminatory manner, and the further right to redesignate or
relocate, from time-to-time, any such designated or assigned spaces. During the
first Lease Year the monthly rental for each parking space leased to Tenant is
Forty Dollars ($40.00). The aforesaid parking space rental shall escalate
annually by the same percentage, in the same manner and at the same time as the
Initial Base Rent escalates pursuant to paragraph 4 above. Monthly rental for
parking spaces shall be payable, in advance, at the same time that the Initial
Base Rent is payable. Tenant will not assign or sublease its parking rights
hereunder, and any attempted assignment or sublease shall be deemed a prohibited
assignment or sublease pursuant to the terms of paragraph 20 above. Landlord
reserves the right to transfer the management and operation of the parking
garage to a third party. Tenant agrees to comply with, and abide by, any and all
reasonable traffic and/or parking rules and regulations imposed by Landlord from
time-to-time that do not materially adversely affect Tenant's original
privileges.
. Landlord Access. Landlord may enter the Premises during business hours with
reasonable advance notice and at Tenant's option, Landlord may be accompanied by
a designated representative of Tenant except in cases of emergency to exhibit
the same to prospective purchasers, mortgagees or tenants, to inspect the
premises to see that Tenant is complying with all its obligations hereunder, to
make repairs required of Landlord under the terms hereof or to make repairs to
Landlord's adjoining property.
. Subordination.
This Lease is subject and subordinate to all ground or underlying leases and to
all mortgages or deeds of trust, which may now or hereafter affect or encumber
the Building or the real property of which the Premises form a part and to all
renewals, modifications, consolidations, replacements or extensions thereof.
This paragraph shall be selfoperative and no further instrument of subordination
shall be required. In confirmation of any such subordination, Tenant shall
execute within ten (10) calendar days after receipt, any certificate or
agreement that Landlord may reasonably so request. Tenant covenants and agrees
to attorn to Landlord or to any successors to Landlord's interest in the
Premises, whether by sale, foreclosure or otherwise.
Notwithstanding the foregoing, in the event any such ground lessor or mortgagee
shall elect to make the lien of this Lease prior to the lien of its ground
lease, mortgage or doed of trust, then, upon such party giving Tenant written
notice to such effect, this Lease shall be deemed to be prior in lien to the
lien of such ground lease, mortgage or deed of trust, whether dated prior or
subsequent thereto.
. Mortgagee Protection. Tenant agrees to give any Mortgagees and/or Trust Deed
Holders, by registered mail, a copy of any Notice of Default served upon
Landlord, provided that prior to such notice Tenant has been notified, in
writing (by way of Notice of Assignment of' Rents and Leases, or otherwise) of
the address of such Mortgagees and/or Trust Deed Holders. Tenant further agrees
that if Landlord shall have failed to cure such default within the time provided
for in this Lease, then the Mortgagees and/or Trust Deed Holders shall have an
additional ten (10) business days within which to cure such default or if such
default cannot be cured within that time, then such additional time as may be
necessary if within such ten (10) business days, any such Mortgagee and/or Trust
Deed Flolder has commenced and is diligently pursuing the remedies necessary to
cure such default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure), in which event this Lease shall
not be terminated while such remedies are being so diligently pursued. Tenant
agrees that in the event of the sale of the property, by foreclosure or deed in
lieu thereof, the purchaser at such sale shall only be responsible for the
return of any security deposits paid by Tenant to Landlord in connection with
this Lease to the extent that such purchaser actually receives such security
deposit and acknowledges receipt thereof in writing.
. Contribution. Landlord shall contribute an amount equal to the lesser of (1)
$290,480.00 or (ii) the actual cost of alterations of the Premises by Tenant.
Such alterations shall be in accordance with Article 9 of this Lease. Landlord
shall reimburse Tenant for the cost of such alterations upon receipt of paid
invoices and lien waivers from Tenant.
. Hold-Over. If Tenant shall not immediately surrender the Premises the day
after the end of the term hereby created, then Tenant shall, by virtue of (his
agreement, become, at Landlord's option, either (a) a tenant at sufferance, or
(b) a tenant from month-to-month. In either of such events, rent shall be
payable at a monthly or daily rate, as the case may be, of 150% the Minimum Rent
and Additional Rental payable by Tenant immediately prior to the expiration or
termination of the term, with said tenancy to commence on the first day after
the end of the term above demised; and said tenancy shall be subject to all of
the conditions and covenants of this Lease insofar as such covenants and
conditions are applicable thereto. Nothing contained in this Lease shall be
construed as a consent by Landlord to the occupancy or possession of the
Premises after the expiration of the term of this Lease. If Landlord fails to
make an election under clause (a) or (b) within ten (10) days after the
expiration or termination of the term, the hold-over tenancy shall be deemed to
be a tenancy from month-to-month. If Tenant holds over a month-to-month tenant,
each party hereto shall give to the other at least thirty (30) days' written
notice to quit the Premises (any right to a Ionger notice period being hereby
expressly waived), except in the event of non-payment of rent in advance or of
the other Additional Rents provided for herein when due, or of the breach of any
other covenant by the said Tenant, in which event Tenant shall not be entitled
to any notice to quit, the usual thirty (30) days' notice to quit being
expressly waived; provided, however, that in the event Tenant shall hold over
after expiration of the term hereby created, and if Landlord shall desire to
regain possession of said Premises promptly at the expiration of the term
aforesaid, then at any time prior to the date Landlord makes (or is deemed to
have made) its election under clause (b) of this Article 29, Landlord at its
option, may re-enter and take possession of the Premises forthwith, without
process, or by any legal action or process in force in the state in which the
Premises is located; provided, however, that if Landlord have accepted rent for
any period beyond the expiration of the term and Tenant is not then in default
under any of the provisions of this Lease, Landlord shall promptly refund to
Tenant an amount equal to any excess rental received by Landlord with respect to
any period alter Landlord exercises its right to re-enter the premises under
this Article 29.
. Estoppel Certificates. Tenant agrees, at any time and from time to time, upon
not less than five (5) calendar days' prior written notice from Landlord, to
execute, acknowledge and deliver to Landlord or to such person(s) as may be
designated by Landlord, a statement in writing (i) certifying that Tenant is in
possession of the Premises, has unconditionally accepted the same and is
currently paying the rents reserved hereunder, (ii) certifying that this Lease
is unmodified and in full force and effect (or if there have been modifications,
that the Lease is in fall force and effect as modified and stating the
modifications), (iii) stating the dates to which the rent and other charge
hereunder have heen paid by Tenant, and (iv) stating whether or not, to the best
of Tenant's knowledge, Landlord is in default in the performance of any
covenant, agreement or condition contained in this Lease, and, if so, specifying
each such default in detail. If Tenant fails to execute and return any such
agreement to Landlord within such ten (10) day period, then, in addition to any
other remedies available with respect to such default of Tenant, Landlord may
elect to treat the information in the estoppel certificate prepared by Landlord
as true and correct and such information shall be binding on Tenant as if Tenant
had signed such certificate. Any such statement, delivered (or deemed delivered)
pursuant hereto may be relied upon by any owner, prospective purchaser,
mortgagee or prospective mortgagee of the Building or of Landlord's interest
therein.
. Quiet Enjoyment. Landlord warrants that it has the right to make this Lease
for the terrn aforesaid and that it will put Tenant into complete and exclusive
possession of the Premises. Landlord covenants that if Tenant pays the rent and
all other charges provided for herein, performs all of its obligations provided
for hereunder and observes all of the other provisions hereof, Tenant shall at
all times during the term hereof peaceably and quietly have, hold and enjoy the
Premises, without any interruption or disturbance frorn Landlord, or anyone
claiming through or under Landlord, subject to the terms hereof.
. Delay. In the event Landlord for any reason is unable to deliver possession of
the Premises to Tenant within thirty (30) days after the date of this Lease,
Tenant may, at its Option, upon written notice, terminate this Lease and, except
for the return of any security deposit or prepaid rent, the parties hereto shall
have no further obligation or liability to each othor. In the event that
Landlord does not so terminate this Lease, at such time as Landlord tenders
possession of the Premises to Tenant in writing, Tenant shall commence payment
of rent pursuant to paragraph 3 hereof, and the expiration date of the term of
this Lease shall be extended for a period equal to the period of such delay. In
the event of any such delay, Landlord and Tenant shall execute a Commencement
and Estoppel Agreement as provided in Article 2, specifying the date on which
possession of the Premises was tendered by Landlord.
. Intentionally Deleted.
. Financial Statements. Tenant, upon Lease execution, and thereafter upon
written request by Landlord, will provide Landlord with a copy of its current
financial statements, consisting of a balance sheet, an earnings statement,
statement of changes in financial position, statement of changes in Tenant's
equity, and related footnotes, prepared in accordance with gencrally accepted
accounting principles. Such financial statements must be either certified by a
CPA or sworn to as to their accuracy by Tenant's most senior official and its
chief financial officer. The financial statements provided must be as of a date
not more than 12 months prior to the date of request. Landlord shall rertain
such statements in confidence, but may provide copies to lenders and potential
lenders. If Tenant is publiclytraded, Landlord will acceptTenant's 10-K and IO-Q
reports to the S.E.C.
in lieu of the above.
. Modifications Due to Financing. If, in connection with obtaining temporary or
permanent financing for the Building or the land upon which the Building is
located, any such lender shall request reasonable modifications of this Lease as
a condition to xxxxx financing, Tenant agrees that Tenant will not unreasonably
withhold, delay or defer the execution of an agreement (of modification of this
Lease, provided such modifications do not increase the financial obligations of
Tenant hereunder or materially adversely affect the leasehold interest hereby
created or Tenant's reasonable use and enjoyment of the Premises.
. Attorneys' Fees. The non-prevailing party shall reimburse the prevailing party
upon demand for any costs or expenses, including reasonable attorney fees,
incurred in connection with the enforcement of obligations hereunder. Any and
all costs or expenses incurred by Landlord pursuant to the provisions hereof
shall be considered as Additional Rent hereunder. Tenant acknowledges that it
has engaged counsel in connection with the negotiation of this Lease, or that
Tenant has freely decided to enter into this Lease without engaging the services
of counsel.
. Notices. All notices reqidred or desired to be given hereunder by either party
to the other shall be sent, postage prepaid, by certified or registered mail or
by national overnight delivery service (with receipt therefor). All rents and
other monetary obligations arising hereunder, and all notices to the respective
parties shall be addressed and sent as follows:
If to Landlord: Rent Checks Payable to:
X. X. Xxxx Real Estate Investment Trust Travelers Insurance Co.
c/o Franklin Property Company RE: 501998
0000 Xxxxxxxxxxx Xxxxxx P.O. Box 64205
Chevy Chase, Maryland 20815 Xxxxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxxxx X. Xxxxxx,
Senior Vice President and Secretary
If Tenant:
Real Estate Department (w/copy to General Counsel)
e.spire Communications, Inc.
000 Xxxxxxxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxx Xxxxxxxx, XX 00000
. Remedies Cumulative; No Waiver. All rights and remedies given herein and/or by
law or in equity to either party are separate, distinct and cumulative, and no
one of them, whether exercised or not, shall be deemed to be in exclusion of any
of the others. No failure to exercise any power given hereunder, or to insist
upon strict compliance with obligations hereunder, and no custom or practice of
the parties at variance with the terms hereof shall constitute a waiver of the
right to demand exact compliance with the terms hereof. Unless and to the extent
otherwise expressly provided to the contrary in this Lease, time shall be of the
essence with respect to all of the obligations of the parties under this Lease.
. Modification. This writing is intended by the parties as the final expression
of their agreement and as a complete and exclusive statement of the terms
thereof, all negotiations, discussions and representations between the parties
having been incorporated herein. No course of prior dealings between the parties
or their affiliates shall be relevant or admissible to supplement, explain or
vary any of the terms of this Lease. Acceptance of, or acquiescence in, a course
of performance rendered under this or any prior agreement between the parties or
their affiliates shall not be relevant or admissible to determine the meaning of
any of the terms of this Lease. No representations, understandings or agreements
have been made or relied upon in the making of this Lease other than those
specifically set forth heroin. This lease can only be modified by a writing
signed by all of the parties hereto or their duly authorized agents.
. Waiver of Jury Trial. Landlord and Tenant each hereby waive all right to trial
by jury in any claim, action, proceeding or counterclaim by either party against
the other on my matters arising out of or in any way connected with this Lease,
the relationship of Landlord and Tenant and/or Tenant's use of occupancy of the
Premises.
. Headings. The captions and headings contained herein are for convenience and
reference only.
. Applicable Law. This Lease shall be construed under the laws of the
Commonwealth of Virginia.
. Rent Tax. Tenant shall pay any rental, sales, use, business and/or similar
taxes levied or imposed by the Commonwealth of Virginia, the County of Fairfax,
or other governmental authority, whether imposed or Tenant or Landlord, such
payments to be in addition to all other payments required under the terms of
this Lease.
. Gender; Assigns and Successors. Feminine or neuter pronouns shall be
substituted for those of the masculine form, and the plural may be substituted
for the singular number, in any place or places herein in which the context may
require such substitution or substitutions. The term "Landlord" as used in this
Lease, means only the owner for the time being, of the Landlord's interest in
this Lease. This Lease shall be binding upon and inure to the benefit or the
parties hereto and their respective successors and permitted assigns, except
that only the original Landlord named herein shall be liable for obligations
accruing before the beginning of the term hereof, and thereafter the original
Landlord named herein and each successive owner of the Premises shall be liable
only for obligations accruing during the period of its ownership. Whenever
Landlord conveys its interest in the Building, Landlord shall be automatically
released from the further performance of covenants on the part of Landlord
herein contained, and from any and all further liability, obligations, costs and
expenses, demands, causes of action, claims or judgments arising from or growing
out of, or connected with this Lease after the effective date of said release.
The effective date of said release shall be the date the assignee of Landlord
executes an assumption of such an assignment whereby the assignee expressly
agrees to assume all of Landlord's obligations, duties, responsibilities and
liabilities with respect to this lease.
. Severability. If any term, covenant or condition of this Lease or the
application thereof to any person or circumstance shall to any extent be held
invalid or unenforceable, the remainder of this Lease or the application of such
term, covenant or condition to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant and condition of this Lease shall be valid and enforced to
the fullest extent permitted by law.
. Interpretation. Whenever in this Lease any printed portion, or any part
thereof, has been stricken out, whether or not any replacement provision has
been added, this Lease shall be read and construed as if the material so
stricken out were never included herein, and no implication shall be drawn from
the text of the material so stricken out which would be inconsistent in any way
with the construction or interpretation which would be appropriate if such
material had never been contained herein. The Exhibits referred to in this Lease
and attached hereto are a substantive part of this Lease and are incorporated
herein by reference. In any legal proceeding respecting this Lease, this Lease
will be construed with equal weight for the rights of both parties, the terms
hereof having been determined by free and fair negotiation, with due
consideration for the rights and requirements of both parties. Both parties
agree that they have had equal input into the wording and phraseology of the
provisions of this Lease, and that, therefore, no provision will be construed as
drafted by one party or the other, without respect to whose draft of this Lease
the wording or phraseology arises. If any of the typewritten portions of this
Lease conflict with any of the printed provisions of this Lease, the provisions
set forth in the typewritten portions shall control; provided, however, that to
the extent the printed portions of this Lease may be read in a manner which will
not conflict with the provisions of the typewritten portions, then such
interpretation shall be deemed to be the correct interpretation of the
provisions of this Lease.
. Landlord's Liability. Any agreement, obligation or liability made, entered
into or incurred by or on behalf of X. X. Xxxx Real Estate Investment Trust
binds only its trust property and no shareholder, trustee, officer, agent or
employee of the Trust assumes or shall be held to any liability therefor. Tenant
agrees that Landlord shall have no personal liability with respect to any of the
provisions of this Lease and Tenant shall look solely to the estate and property
of Landlord in the land and buildings comprising the Building including, without
limitation, the collection of any judgment or the enforcement of any other
judicial process requiring the payment or expenditure of money by Landlord,
subject, however, to he prior rights of any holder of any mortgage or deed of
trust covering all or part of the Building, and no other assets of Landlord
shall be subject to levy, execution or other judicial process for the
satisfaction of Tenant's claim and, in the event Tenant obtains a judgement
against Landlord, the judgment docket shall be so noted. This Section shall
inure to the benefit of Landlord's successors and assigns and their respective
principals.
. Survival of Obligations. Tenant's liabilities existing as of the expiration
or earlier termination of the Lease Term shall survive such expiration or
earlier termination.
. Entity Tenants. If Tenan is a corporation; partnership or limited liability
company, the persons executing this Lease on behalf of Tenant hereby covenant
and warrant that: Tenant is duly constituted as such entity and is qualified to
do business in the state where the Premises are located; all Tenant's franchise
and corporate taxes have been paid to date; all future forms, reports, fees and
other documents necessary for Tenant to comply with applicable laws will be
filed by Tenant when due; and such persons are duly authorized by the board of
directors, partnership agreement or other applicable authority of such entity to
execute and deliver this Lease and certificate of good standing, dated within
sixty (60) days prior to the Lease Date, issued by the jurisdiction in which
Tenant is organized, and one or more of the following confirming the
authorization and due execution of this Lease by Tenant: (1) a certificate of
Tenant's Secretary if Tenant is a corporation; or (ii) a consent of the general
partners if Tenant is a partnership or (iii) a certified copy of the Articles of
Organization, operating agreement or other evidence satisfactory to Landlord
evidencing the authority of the members of a limited liability company executing
this Lease on behalf' thereof. Notwithstanding the foregoing, Landlord agrees to
accept the written opinion of Tenant's in-house counsel with respect to the
matters addressed in this Article.
. The Building is a "No Smoking" building. No smoking is permitted in any tenant
premises or any public or common area within the Building. Landlord reserves the
right to designate areas adjacent to the Building where smoking is permitted or
prohibited. Persons smoking in areas adjacent to the Building shall deposit all
ashes and other trash in appropriate ashtrays or trash receptacles, and shall
not leave any litter in such areas.
. No Option, The submission of this Lease for examination does not constitute a
reservation of or option for the Premises, and this Lease becomes effective only
upon execution and delivery thereof by Landlord. Neither party shall have any
legal obligation to the other in the event that the lease contemplated herein is
not consummated for any reason. Discussions between the parties respecting the
proposed lease described herein, shall not serve as a basis for a claim against
either party or any officer, director or agent or either party.
. Special Stipulations. The terms, covenants and conditions set forth in any
Articles of this Lease numbered higher than this Article 52 ("Special
Stipulations") are intended to supplement and, in certain events, modify or
vary, the other provisions set forth in the foregoing provisions of this Lease.
If any of the Special Stipulations conflict with any of the foregoing provisions
of this Lease, the provisions set forth in the Special Stipulations shall
control; provided, however, that to the extent the preceding portions of this
Lease may be read in a manner which will not conflict with the provision of the
Special Stipulations, then such interpretation shall be deemed to be the correct
interpretation of the provisions of this Lease and the Special Stipulations.
. Option Term.
() Tenant shall have the option to renew the term of this Lease for one
(1) additional period(s) of five (5) years (the "Option Term") following the
expiration of the initial lease term provided that this lease is in full force
and effect, the Tenant shall be in possession and occupying the Premises
(subject to paragraph 20.h), and Tenant shall not be in default beyond the
expiration or any applicable notice and cure period in the performance or
observance of any of the terms, conditions, provisions and/or covenants of the
Lease. All such rights of a renewal shall be exercised by delivery to Landlord
of written notice of Tenant's intention to renew the term at least nine (9)
months but not more than twelve (12) months prior to the expiration of the then
applicable term of the lease. The Option Term shall be of the same terms,
covenants and conditions its the original lease except Base Rent for the Option
Term shall be the then Prevailing Market Rent of comparable space within the
McLean, Virginia, market area.
() Within fifteen (15) business days after receipt (if Tenant's notice
exercising its option to extend the term of this Lease, Landlord shall notify
Tenant of Landlord's estimate of Prevailing Market Rent. If Tenant disagrees
with Landlord's estimate of Prevailing Market Rent, Tenant may rescind such
renewal notice thereby terminating its right of renewal provided by this lease,
or Tenant shall notify Landlord that it has elected to submit the determination
of Prevailing Market Rent to Arbitration, in which event the provisions of
subparagraph (b)(ii)(a) of this Article 55 shall govern the selection of
arbitrators and the establishment of the Prevailing Market Rent payable for the
year of the then applicable Option Term; provided, however, that if Tenant does
not elect to either rescind its renewal notice or to submit the determination of
Prevailing Market Rent to Arbitration during such fifteen (15) day period, then
the Landlord's estimate of Prevailing Market Rent shall be deemed to be agreed
to by Tenant, and shall be the Base Rent payable by Tenant to Landlord during
the first year of the then applicable Option Term.
()(i) Definition: As used herein, the term 'Prevailing Market Rent'
means the most probable rent (as determined pursuant to the appraisal procedure
hereinafter set forth) at which the Premises would be leased in a comparable and
open market, under all conditions requisite to a fair lease, the Landlord and
Tenant each acting prudently, knowledgeable, and assuming the rent is not
affected by undue stimulus. Implicit in this definition is the consummation of
the lease of such space beginning on the commencement date of the lease of the
Premises under conditions whereby:
A. Landlord and Tenant are typically motivated (i.e., neither party is
compelled to enter into a lease and both parties are willing to enter into a
lease).
B. Both parties are well informed or well advised, and each acting in
what it considers its own best interest.
C. A reasonable time is allowed for exposure in the open market.
D. The Prevailing Market Rent shall be computed as an amount equal to
the then prevailing market rental rate of the Premises, as if vacant with
Building standard improvements, and taking into account the annual adjustments
of Base Rent, Tenant's obligation to pay Tenant's Pro-Rata Share of Annual
Operating Costs and all existing market factors.
E. All of the terms, covenants and conditions of the Lease (except
terms respecting the amount of Base Rent) remain in effect throughout the term.
(ii) In the event of a dispute as to determination of Prevailing Market
Rent referred to in this paragraph, such dispute shall be resolved in accordance
with the following:
(a) If Landlord and Tenant fail to agree upon the Prevailing Market
Rent as referred to in this paragraph, within the time periods provided for
herein, then Landlord and Tenant each shall give notice to the other setting
both the name and address of a licensed real estate broker or appraiser
(hereinafter `appraiser') who shall be a M.A.I. Real Estate professional with
substantial experience in commercial real estate appraisal designated by it to
make the determinations hereafter required. Each appraiser shall be instructed
to calculate the Prevailing Market Rent as provided in each of the foregoing
sections which is the subject of the dispute and is in accordance with the
criteria referenced therein. If either party shall fail to give notice of such
designations within ten (10) days after failing to agree between themselves,
then the appraisal made by the appraiser so designated shall be the Appraisal
Prevailing Market Rent. If two appraisers have been designated, such two
appraisers shall consult with each other and, within thirty (30) days
thereafter, issue their determinations of Appraisal Prevailing Market Rent in
writing, and give notice thereof to each other and to Landlord and Tenant. If
such two appraisers shall concur as to the determination of the Prevailing
Market Rent and submit their decision in writing to Landlord and Tenant, such
concurrence shall be final and binding upon Landlord and Tenant. If the two
determinations of Prevailing Market Rent shall be within five percent (5%)
(measured from the higher appraisal) of each other, the Prevailing Market Rent
shall be deemed to be the average of the two appraisers' determinations. If'
such two appraisers' determinations shall not so concur or coincide, then such
two appraisers shall immediately (1) designate it third appraiser, (ii) prepare
detailed written appraisals, and (iii) submit copies of such appraisal to
Landlord, Tenant and such third arbitrator. If the two appraisers shall fail to
agree upon the designation of such third appraiser within eight (8) days of the
date on which the last determination was rendered, then either party may apply
to the American Arbitration Association or any successor thereto having
jurisdiction, for the designation of such appraiser. All arbitrators shall be
licensed real estate appraisers or brokers who shall have had at least ten (10)
years continuous experience in the business of appraising or managing real
estate or acting as real estate agents or brokers in the McLean, Virginia area.
The third appraiser shall conduct such hearings and investigations as he may
deem appropriate and shall, within twenty (20) (lays after the date of
designation of the third appraiser, choose the determination of the two
appraisers originally selected by the parties which is the nearest to the
determination such third appraiser would have made acting alone anti applying
the standards set forth therefor in this Lease, and that choice by the third
appraiser shall be binding upon Landlord and Tenant. Each party shall pay its
own counsel fees and expenses, if any, in connection with any arbitration under
this Article, including the expenses and fees of any appraiser selected by it in
accordance with the provisions of this paragraph, and the parties shall share
equally all other expenses and fees of any such arbitration, including the
expenses of the third appraiser. The determination rendered in accordance with
the provisions of this paragraph shall be final and binding in fixing the
Prevailing Market Rent.
However, in no event shall the Base Rent for the first Lease Year of
the Option Term be less than the then Base Rent for the last Lease Year of the
initial Lease Term as escalated by three percent (3%).
. Satellite Dish. Tenant may install one (1) satellite dish antenna of three (3)
feet or less in diameter and related wiring and facilities (the "Satellite
Dish") on the roof of the Property in an area approved by Landlord, upon the
following terms and conditions:
() The Satellite Dish shall be installed at the sole cost and expense
of Tenant. The exact location of the Satellite Dish and all construction and
improvements related thereto are subject to Landlord's approval.
() Tenant agrees to paint the Satellite Dish a color approved by
Landlord and to screen the Satellite Dish so that it is not visible from the
common areas of the Building or adjoining public streets.
() Tenant shall repair promptly, at its own expense, any damage to the
Property, the Building or the roof caused by the use, maintenance, installation,
or removal of the Satellite Dish or by the negligence of Tenant or Tenant's
employees, agents, contractors or subcontractors. The Satellite Dish shall be
removed from the roof of the Property, and the roof and adjacent areas shall be
surrendered to Landlord at the expiration or sooner termination of the term
hereof, in as at least as good condition as existed on the Lease Date, excepting
only depreciation caused by ordinary wear and tear. The Satellite Dish shall be
used solely in connection with Tenant's business operation in the Premises, and
shall not be used by any other party.
() Landlord reserves the right to relocate the Satellite Dish, at
Landlord's expense, at any time during the term of this Lease, to another
location will not unreasonably interfere with satisfactory operation of the
Satellite Dish.
() Landlord assumes no liability or responsibility for interference
with the Satellite Dish caused by the construction of additional buildings on
the Property. Tenant agrees to assume all costs for relocation of the Satellite
Dish required if such relocation is as a result of the construction of
additional buildings on the Property.
() The Satellite Dish and areas of the roof used by Tenant in
connection therewith shall be deemed to be a part of the Premises for purposes
of Articles 8, 9, 10, 13, 18, and 19 of this Lease and Tenant shall include the
Satellite Dish within the coverage of all insurance policies required to be
maintained by Tenant under this Lease.
() Tenant shall pay to Landlord, as Additional Rent, and subject to the
Rent Adjustment set forth in Article 55 of this Lease, an amount equal to Three
Thousand and 00/100 Dollars ($3,000.00) per annum, payable in equal monthly
installments of Two Hundred Fifty and 00/100 Dollars ($250.00) each.
. Year 2000. Landlord believes that the computer hardware and software for the
portions of the Building and its systems which are operated or maintained by
Landlord will operate after January 1, 2000. The foregoing information is based
upon a republication, as defined in the Year 2000 Information and Readiness
Disclosure Act, Public Law 105-271 (the "Year 2000 Act"), of information
received from other parties, such as manufacturers, suppliers or service
vendors, which may or may not be intended to be Year 2000 Statements (as defined
in the Year 0000 Xxx) by such parties. Landlord expressly disclaims any
liability for the failure of services provided by any utility company or other
private, quasi-governmental or governmental entities in providing any services
to the Building.
. Telecommunications Access. If any tenant of the Building requests in writing
that Landlord permit e.spire Communications, Inc. or its permitted
successors/assigns, to provide such tenant telecommunications access services
through optic fiber wiring (hereinafter referenced to as "Fiber Access") then,
Landlord shall not unreasonably withhold condition or delay its approval for
Tenant to install, operate, maintain, repair and replace fiber optic cable and
associated equipment (the "Facilities") within the Building (also referred to as
the "Licensed Premises") to provide its public utility telecommunications
services on a non-exclusive basis to or for the benefit of tenants of the
Building. In connection herewith:
(i) Landlord shall provide Tenant reasonable access to vertical and
horizontal shafts to enable Tenant to provide its telecommunications services to
tenants of the Building.
(ii) Following notice to and approval of all plans and specifications
by Landlord, Tenant shall have right of access to the Building and the right to
construct, where necessary and at its expense, building entrance and conduct
facilities associated with providing its telecommunications services in the
Building.
(iii) Nothing contained herein shall be construed as granting to tenant
any property or ownership rights in the Building or to create a partnership or
joint venture between Landlord or Tenant.
(iv) Tenant shall defend, indemnify and save Landlord harmless from and
against all claims, liabilities, suits, fines, penalties, damages, losses, fees,
costs and expenses, including attorney fees, which may be imposed upon, incurred
by, or served against Landlord by reason of:
() any work or thing done by or on behalf of the Tenant, or
any of its agents, contractors, subcontractors, servants, employees or invitees,
in or about the Landlord's Building or any parts thereof;
() any use, occupation, condition, or operation by the Tenant,
or any of its agents, contractors, subcontractors, servants, employees, Tenants,
or invitees, in or about the Premises or the Building or any part thereof, or
any passageway or space adjacent thereto, or elsewhere in the Premises or the
Building;
() any act or omission on the part of the Tenant, or any of
its agents, contractors, subcontractors, servants, employees, Tenants,
or invitees;
() any occurrence, accident, injury (including death), or
damage, directly or indirectly caused by the Tenant or any of its agents,
contractors, subcontractors, servants, employees, Tenants, or invitees to any
person or property carried in, or about the Licensed Premises or any part
thereof, or in or about the Premises or the Building;
() any lien arising as a result of any of Tenant's actions
or omissions with respect to its activities on or with respect to the Licensed
Premises or the Facilities; and
() failure of Tenant to vacate the Licensed Premises or to
remove the Facilities as required
under this Lease.
The Facilities shall be deemed to be a part of the Premises for all purposes of
the Lease including, without limitation, Articles 7, 8, 9, 13, 18 and 19.
All local, state or federal permits necessary for the use of the
Facilities shall be obtained by the Tenant at Tenant's sole cost and expense and
prior to the use herein contemplated. Tenant shall have its public liability and
other insurance policies endorsed to include the Facilities as a part of the
Premises.
IN WITNESS WHEREOF, the parties hereto have executed this Lease under
seal on the day and year first above written.
WITNESS/ATTEST: TENANT: e.spire Communications, Inc.
___________________________ BY:_________________________________
PRINTED NAME:______________
TITLE:_____________________
TAX IDENTIFICATION
OR SOCIAL SECURITY NUMBER__
ATTEST: LANDLORD:
X. X. XXXX ESTATE INVESTMENT TRUST
___________________________ BY:_________________________________
Xxx Xxxxxxx, Assistant Secretary
EXHIBIT B
WORK AGREEMENT
INTENTIONALLY DELETED
EXHIBIT C
RULES AND REGULATIONS
. No advertisement, or other notice, shall be inscribed, painted or
affixed on any part of the outside or inside of the Building, except upon the
doors, and of such order, size and style, and at such places as shall be
designated by Landlord in writing. Initial Building Standard Suite entry door
signs and directory listings will be supplied for tenants by Landlord at
Tenant's cost.
. The sidewalks, entry passages, corridors, halls, elevators and
stairways shall not be obstructed by tenants, or used by them for any purpose
other than for ingress and egress. The floors, and skylights and windows that
reflect or admit light into any place in said Building, shall not be covered or
obstructed by tenant. The water closets and other water apparatus, shall not be
used for any other purpose than those for which they were constructed and no
sweepings, rubbish, or other obstructing substances shall be thrown therein. Any
damage resulting to them, or to associated systems, from misuse, shall be
repaired by tenants who, or whose employees, clerks, agents, invitees, or
servants shall cause it.
. No tenant shall do or permit to be done in said Premises, or bring or
keep anything therein, which shall in any way obstruct or interfere with the
rights of other tenants or in any way injure or annoy them. Tenants, their
clerks and servants, shall maintain order in the Building, shall not make or
permit any improper noise in the Building or interfere in any way with other
tenants or those having business with them. Nothing shall be thrown by tenants,
their clerks or servants, out of the windows or doors, or down the passages or
skylights of the Building. No rooms shall be occupied or used as sleeping or
lodging apartments at any time. No part of the Building shall be used or in any
way appropriated for gambling, immoral or other unlawful practices. No
intoxicating liquor or liquors shall be sold in said Building without Landlord's
prior written consent. At no time shall any firearms or other weapons of any
kind be kept at the Premises.
. Tenant shall not employ any person other than the janitors of
Landlord (who will be provided with passkeys into the offices) for the purpose
of cleaning or taking charge of said Premises. It is understood and agreed that
the Landlord shall not be responsible to any tenant for any loss of property
from rented premises, however occurring, or from any damage done to the
furniture or other effects of any tenant by the janitor or any of its employees.
. No animals, birds, bicycles or other vehicles shall be allowed in the
office, halls, corridors, or elsewhere in the Building.
. All tenants and occupants shall observe strict care not to leave
their windows or doors open when it rains or snows, or while air conditioning or
heating systems are in operation, and, for any fault or carelessness in any of
these respects, shall make good any injury sustained by other tenants, and to
Landlord for damage to paint, plastering or other parts of the Building,
resulting from such default or carelessness. No painting shall be done, nor
shall any alterations be made, to any part of the Building by putting up or
changing any partitions, doors or windows, nor shall there be any nailing,
except for decorating, boring or screwing into the woodwork or plastering, nor
shall any connection be made to the electric wires or electric fixtures, without
the prior consent in writing on each occasion of Landlord or its Agent. All
glass, locks, and trimmings in or upon the doors and windows of the Building
shall be kept whole and, when any part hereof shall be broken, the same shall be
immediately replaced or repaired and put in order under the direction and to the
satisfaction of Landlord, or its Agent, and shall be left whole and in good
repair. Tenant shall not injure, overload or deface the Building, the woodwork
or the walls of the premises, nor carry on upon the Premises any noisome,
noxious, noisy, or offensive business.
. Seventy-five (75) keys will be provided upon initial occupancy. The
charge for additional keys shall be Five Dollars ($5.00) each. No additional
locks or latches shall be put upon any door without prior written consent of
Landlord. Tenants, at termination of their lease of the premises, shall return
to Landlord all keys to doors in the Building.
. Landlord in all cases retains the power to prescribe the weight and
position of iron safes or other heavy articles. Tenants must make arrangements
with the manager of the Building when the elevator is required for the purpose
of the carrying of any kind of freight.
. The tenant shall not (without the Landlord's prior written consent)
install or operate any electric beating device, steam engine, boiler, machinery
or stove upon the Premises, or carry on any mechanical business therein, or do
any cooking therein, except microwave, or use or allow to be used upon the
Premises, oil, burning fluids,, camphene, gasoline or kerosene for heating,
warming or lighting. No article deemed extra hazardous on account of fire and no
explosives shall be brought into said Premises. No offensive gases or liquids
will be permitted.
. If tenants desire blinds or windows covering of any kind over the
windows, they must be of such shape, color and material as may be prescribed by
Landlord, and shall be erected with Landlord's prior consent and at the expense
of said tenants. No awnings shall be placed on said Building.
. Landlord reserves all vending rights. Request for such service will
be made to Landlord. Tenant has rights to its own vending machines for its
break room.
. Twenty-five (75) security cards will be required by Tenant and
famished initially by Landlord at no charge to enter the building during non
business hours. There will be a charge of $10.00 for each security card
replaced. These cards remain the property of and must be returned to the
Landlord upon expiration of the Lease, or upon Landlord's request. If any card
is not returned, or is lost or damaged by Tenant, then there will be an
additional charge of $10.00 per card at Landlord's discretion.
. Except for the storage of trash or rubbish in dumpsters or containers
provided by Landlord, Tenant shall not permit storage of any kind outside of the
Premises.
. Canvassing, soliciting and peddling in the Building is prohibited and
each tenant shall cooperate to prevent the same. Tenant shall be allowed to
offer its services to other tenants in the building provided such offering is
handled in a professional manner.
. The elevators in the Building are not to be used by the tenants or
their agents, for moving furniture into the Premises, incident to the initial
occupancy, or moving furniture or freight out, incident to vacating without the
prior written consent of Landlord and, except during the hours from 6:00 p.m. to
8:00 a.m., or on Saturdays after the hour of 1:00 p.m. unless approved in
advance in writing by the manager of the Building.
. The Landlord reserves the right to make such other rules and
regulations as in its judgment may, from time to time, be needed for the salary,
care and cleanliness of the Premises, and for the preservation of good order
therein.
. Violation of these rules, or any amendments hereof or additions
hereto, shall be sufficient cause for a default of this Lease at the option of
Landlord.
. The smoking and/or holding and/or carrying of any lit tobacco or
tobacco-like product shall be prohibited in, on or around all public areas in,
around or about the building except in designated smoking areas.
EXHIBIT D
INTENTIONALLY DELETED
EXHIBIT E
LIST OF TENANT'S SHAREHOLDERS, PARTNERS, OR MEMBERS
OF A LIMITED LIABILITY COMPANY AND PERCENTAGE OF OWNERSHIP
EXHIBIT F
COMMENCEMENT AND ESTOPPEL
THIS COMMENCEMENT AND ESTOPPEL AGREEMENT is made and entered into
this __ day of _____, 19__, by and
between ___________ ("Tenant") and X. X. XXXX REAL ESTATE INVESTMENT TRUST
("Landlord").
WHEREAS, Landlord and Tenant have heretofore entered into that certain
Lease Agreement dated ________ (the "Lease"), for certain space
at___________________________.
WHEREAS, paragraph 3 of the Lease provides for the execution of a
commencement agreement specifying the commencement date of the term of the
Lease;
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, each party hereby warrants and represents to the other as follows:
1. That Tenant is in full and complete possession of the Dernised
Premises, such possession having been delivered by the
Landlord and having been accepted by the undersigned.
2. That the Landlord's improvements, if any, and the space
required to be furnished by the terms of the Lease have been
completed in all respects and are open for the use of the
Tenant, its customers, employees and invitees.
3. That all duties of an inducement nature required of the
Landlord in said Lease have been fulfilled.
4. That said Lease is in full force and effect; that there is no
existing default on the part of the Landlord in the terms
thereof, and that said Lease has not been amended, modified,
supplemented or superseded.
5. That no rents have been prepaid except as provided by said
Lease; that Tenant does not now have or hold any claim against
Landlord which might be set off or credited against future
accruing rent.
6. That Tenant has received no notice of a prior sale, transfer,
assignment, hypothecation or pledge of the said Lease or of
the rents secured therein, except to Landlord.
7. That the Rent Commencement Date for the Lease is the ____ day
of _______, 19__ and the Lease shall expire at midnight on the
______ day of ________, 19__.
8. Any agreement, obligation, or liability made, entered into or
incurred by or on behalf of X. X. XXXX REAL ESTATE INVESTMENT
TRUST binds only its Trust property, and no shareholder,
trustee, officer, or agent of the Trust assumes or shall be
held to any liability therefor.
IN WITNESS WHEREOF, the parties hereto do hereby execute this Agreement
under seal on the day and year first above written.
ATTEST: TENANT:
---------------------------
______________________ By:______________________(SEAL)
Secretary Printed Name:______________
Its:_______________________
ATTEST: LANDLORD:
X. X. XXXX REAL ESTATE INVESTMENT
TRUST
______________________ By:____________________________
Printed Name:_____________
Its:____________________________
EXHIBIT A
DEMISED PREMISES
