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EXHIBIT 10.24
SUBLEASE AGREEMENT
THIS SUBLEASE AGREEMENT (the "Sublease") made as of the 21st day of June,
1999, by and between Virginia Electric and Power Company, a Virginia public
service corporation (Sublandlord"), and Net2000 Communications Real Estate,
Inc., a Delaware corporation (Subtenant").
WHEREAS, Sublandlord is a party to a certain lease by and between
Sublandlord, as lessee, and Xxxxx River Plaza Company, a Minnesota General
Partnership ("Xxxxx River"), as lessor, dated December 28, 1976 (the "Existing
Lease"), the Collateral Assignment of Lease and Rents between Xxxxx River and
Bankers Life Company, Society for Savings, American United Life and United
Benefit Life Insurance Company dated December 28, 1976 (the "Collateral
Assignment"), the Assignment of Lease between Xxxxx River, as assignor, Dominion
Resources, Inc., a Virginia corporation ("DRI"), as assignee, and Landlord dated
November 18, 1985 (the "Assignment"), and the Amendment to lease Agreement
between DRI and Sublandlord dated September 1, 1997 (the "Amendment") (the
Existing Lease, the Collateral Assignment, the Assignment and the Amendment are
hereinafter collectively referred to as the "Master Lease") in which Sublandlord
leased, as tenant, from Xxxxx River the building located at 000 Xxxx Xxxx Xxxxxx
(also known as "One Xxxxx Xxxxx Xxxxx"), Xxxxxxxx, Xxxxxxxx (the "Building"). A
true and correct copy of the Master Lease is attached hereto and by this
reference made a part hereof as Exhibit A; and
WHEREAS, Sublandlord and Subtenant desire that Subtenant (a) sublease from
Sublandlord a portion of the Building comprising approximately 8,000 rentable
square feet on level 1B of the Building (the "1B Space"), as more particularly
delineated on the floor plan attached hereto and by this reference made a part
hereof as Exhibit B, and (b) sublease from Sublandlord a portion of the Building
comprising approximately 900 rentable square feet on levels 2B and 3B of the
Building (the "2B and 3B Space"), as more particularly delineated on the floor
plan attached hereto and by this reference made a part hereof as Exhibit C (the
1B Space and the 2B and 3B Space are hereinafter collectively referred to as the
"Subleased Premises").
NOW, THEREFORE, in consideration of the mutual promises hereinafter set
forth and for other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto hereby agree as follows:
1. LEASING
Sublandlord subleases to Subtenant the Subleased Premises, and Subtenant
subleases from Sublandlord the Subleased Premises, upon and subject to the
covenants, agreements and conditions contained in this Sublease.
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2. TERM
(a) Except as otherwise provided in this Sublease, the term of this
Agreement shall be for a period of ten (10) years (the "Initial Term") and shall
commence upon the date this Agreement has been fully executed by Sublandlord and
Subtenant (the "Sublease Commencement Date"); provided however, that if on or
before August 1, 1999, this Sublease shall not be fully executed by Sublandlord
and Subtenant this Sublease shall become automatically null and void and neither
party shall have any liability or responsibility whatsoever to the other under
this Sublease, except as set forth herein. The term of this Sublease shall
automatically renew for two (2) successive periods of five (5) years each
(collectively, the "Renewal Terms", and individually a "Renewal Term"), provided
Subtenant is not in default under this Sublease, unless Subtenant notifies
Sublandlord in writing of Subtenant's intention to terminate this Sublease at
least twelve (12) months prior to the expiration of the Initial Term or the
first Renewal Term, as the case may be. Notwithstanding any provisions in this
Sublease to the contrary, the Term of this Sublease shall automatically
terminate, without further action by the Subtenant or Sublandlord and without
any further liability or responsibility whatsoever by either party to the other,
except for any liabilities and obligations which expressly survive any
termination or expiration of this Sublease, upon any termination or expiration
of the Master Lease or any renewal thereof. This Agreement shall inure to the
benefit of and be binding upon the parties hereto and their respective
successors and assigns. Any reference herein to the "Term" shall be deemed to
include the Initial Term and any Renewal Terms.
(b) Notwithstanding the date of the Sublease Commencement Date set forth
above in Paragraph 2(a), Subtenant and Sublandlord agree that Subtenant took
possession of the Subleased Premises on May 1, 1999 (the "Possession Date"), at
its sole risk, pursuant to a letter agreement between Subtenant and Sublandlord
dated April 30, 1999, a copy of which is attached hereto and by this reference
made a part hereof as Exhibit D, for the purpose of preparing the Subleased
Premises for occupancy by Subtenant. Except as provided in the letter agreement,
all of the provisions of this Sublease shall apply and shall supersede the
letter agreement commencing as of the date of this Sublease and continuing
through the expiration or earlier termination of the Term.
3. INCORPORATION OF MASTER LEASE
(a) This Sublease is expressly subject and subordinate to the Master Lease,
the terms and provisions of which are expressly incorporated herein by this
reference (except as otherwise provided in Paragraph 3(b) of this Sublease).
Except for the payment of rent, Subtenant shall, with respect to the Subleased
Premises, perform and observe all of the applicable obligations, terms,
covenants and conditions of the Master Lease which are to be performed or
observed by Sublandlord, as Tenant, under the Master Lease. Subtenant shall not
take any action or fail to take any action that shall cause Sublandlord to be in
default under the Master Lease, regardless of the provisions of Paragraph 3(b)
of this Sublease. Subtenant shall be entitled to receive the benefit of all
utilities, services, maintenance, repairs and replacements provided to
Sublandlord
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by DRI under the Master Lease, if any, as they apply to the Subleased Premises,
provided, however, Subtenant understands, acknowledges and agrees that
Sublandlord shall have no liability whatsoever to Subtenant if DRI shall not
provide any such utilities, services, maintenance, repairs or replacements or
shall not otherwise timely and properly comply with or perform its obligations,
covenants and agreements under the Master Lease for any reason not due to a
default by Sublandlord under the Master Lease which is not caused by or does not
directly, indirectly or consequentially arise out of or in connection with or
does not relate to any default by Subtenant under this Sublease or any act,
omission, negligence, or willful or criminal act of Subtenant or its agents,
employees, officers, contractors, tenants, concessionaires, servants, licensees,
invitees, guests, successors, customers or assigns. All capitalized terms used
in this Sublease Agreement, unless specifically defined herein, shall have the
same meaning and definition as used in the Master Lease.
(b) Notwithstanding the foregoing, Subtenant shall have no obligation with
respect to the following provisions of the Master Lease, and such provisions of
the Master Lease are expressly not incorporated into this Sublease: 3; 4; 5(a)
and 5(b); 6(a), 6(b)(i); 7(a); 11; 12(a); 12(b), 12(c), 12(d); 13(e)(I),
13(e)(ii); 14; 15; 16; 17; 22; Schedule B, Schedule C, Schedule D; and the
Collateral Assignment. If the Master Lease terminates, this Sublease shall
terminate and the parties shall be relieved of any further liability or
obligation under this Sublease; provided, however, that if the Master Lease
terminates as a result of the occurrence a default by Sublandlord under the
Master Lease, which is not caused by, or does not directly, indirectly or
consequentially arise out of or in connection with, or does not relate to, any
default by Subtenant under this Sublease or any act, omission, negligence or
willful or criminal act of Subtenant or its agents, employees, officers,
contractors, tenants, concessionaires, servants, licensees, invitees, guests,
successors, customers or assigns, then Sublandlord shall be liable to Subtenant
for all direct damages suffered by Subtenant as a result of such termination.
(c) Sublandlord agrees that (except as set forth in the sentence
immediately following) it will not, without the prior written consent of
Subtenant, enter into an agreement with DRI, the effect of which would be to
terminate or materially adversely affect Subtenant's use and occupancy of the
Subleased Premises substantially in accordance with the terms of this Sublease.
The immediately preceding sentence shall not, however, prevent Sublandlord from
exercising any right available to Sublandlord pursuant to the master Lease to
terminate the Master Lease, including, but not limited to, following a casualty
or condemnation affecting the Building and/or the common areas of the Building
(the "Common Areas") or a default by DRI under the Master Lease. In the event of
a conflict between the Master Lease and the Sublease, the terms of the Master
Lease shall prevail. Sublandlord represents and warrants that the Master Lease
is in full force and effect and that it is not in default under the Master Lease
as of the date of this Sublease.
4. RENT
(a) During the Term of this Sublease, commencing on the date which shall be
sixty (60) days after the Possession Date (the "Rent Commencement Date") and
continuing on the first day of each month thereafter during the Term, Subtenant
will pay to Sublandlord for the
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Subleased Premises an annual base rent of One Hundred Sixty-Five Thousand Seven
Hundred and 00/100 ($165,7000.00) Dollars (the "Annual Rent"), payable in
advance in equal monthly installments of Thirteen Thousand Eight Hundred Eight
and 33/100 ($13,808.33) Dollars. Annual rent shall not include Subtenant's own
electricity and janitorial services, for which Subtenant shall pay separately.
The Annual Rent shall be increased, starting on the date which is eighteen (18)
months from the Rent Commencement Date and thereafter each and every subsequent
year during the Initial Term of this Sublease on the anniversary of the Rent
Commencement Date by an amount equal to three percent (3%) of the immediately
preceding year's Annual Rent (except for the second rent increase which shall be
based on the six (6) month period beginning on the date which is eighteen (18)
months from the Rent Commencement Date and ending on the second anniversary of
the Rent Commencement Date) (the "Initial Term Rent Escalation"). Sublandlord
shall notify Subtenant of the first Initial Term Rent Escalation. Sublandlord's
failure to provide such notice shall not be a waiver of Sublandlord's right to
collect the Initial Term Rent Escalation, and Subtenant shall pay on demand all
the Initial Term Rent Escalation amounts not collected by Sublandlord should
Sublandlord fail to provide such notice or collect the Initial Term Rent
Escalation. If the Sublease Commencement Date shall not be on the first day of a
month, the first payment of Annual Rent shall be due and payable on the Rent
Commencement Date and Sublandlord shall prorate the Annual Rent for the period
from the Rent Commencement Date to the first day of the first full calendar
month after the Rent Commencement Date. The prorated Annual Rent shall be
computed by multiplying one (1) monthly installment of Annual Rent by a
fraction, the numerator of which is the number of calendar days from the Rent
Commencement Date to the first calendar day of the first full calendar month
after the Rent Commencement Date and the denominator of which is the actual
number of days in the month.
(b) Subtenant shall deliver the monthly installments of the Annual Rent to
Sublandlord on or before the first (1st) day of each calendar month of the Term.
All Annual Rent and other amounts due under this Sublease payable by Subtenant
to Sublandlord shall be paid to Sublandlord in lawful money of the United
States, without any prior notice or demand therefor except as set forth in
Paragraph 4(a), and without abatement, deduction, setoff, recoupment, or
counterclaim. All payments of Annual Rent and other amounts due under this
Sublease shall be sent to Sublandlord at Xxx Xxxxx Xxxxx Xxxxx, X.X. Xxx 00000,
Xxxxxxxx, Xxxxxxxx 00000, Attention: Senior Real Estate Administrator, or to
such other party or place as Sublandlord may from time to time designate in
writing.
(c) If Subtenant notifies Sublandlord of Subtenant's intent to renew this
Sublease as set forth in Paragraph 2(a) twelve (12) months before the expiration
of the Initial Term or twelve (12) months before the end of the first Renewal
Term, as the case may be, then Sublandlord and Subtenant agree to negotiate a
mutually agreeable Annual Rent for such Renewal Term, and escalation thereof, if
any, for the Subleased Premises. If Sublandlord and Subtenant cannot agree on
Annual Rent for such Renewal Term, and escalation thereof, if any, for the first
Renewal Term or the second Renewal Term, on or before six (6) months before the
end of the Initial Term or the first Renewal Term, then this Sublease shall not
be renewed and shall terminate at the end of the Initial Term of the first
Renewal Term, as the case may be, without further actions by the Subtenant or
Sublandlord and without any further liability or responsibility
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whatsoever by either party to the other, except for any liabilities and
obligations which expressly survive the termination or expiration of this
Sublease.
(d) Subtenant covenants and agrees to pay to Sublandlord, from time to time
as provided in this Sublease, and as "Additional Rent":
(i) a late charge equal to five percent (5%) of any installment of
Annual Rent or Additional Rent, which is not received by Sublandlord within
ten (10) days after the due date thereof;
(ii) interest at an annual rate equal to twelve percent (12%)
("Interest") on all installments of Annual Rent and Additional Rent not
received within five (5) days after the due date, until the date payment is
actually received by Sublandlord;
(iii) all other costs, expenses, amounts and sums which Subtenant
agrees to pay to Sublandlord and/or to third parties (including, but not
limited to, the amounts described in Paragraph 29(a) of this Sublease) in
those circumstances in which Subtenant shall fail or refuse to pay such
third parties and the same is paid instead by Sublandlord, together with
Interest from the date paid by Sublandlord until the date payment is
actually received by Sublandlord;
(iv) Sublandlord's reasonably estimated cost per gallon of diesel fuel
consumed by Subtenant's generator located in the 3B Space (the "Fuel
Payment"). Subtenant's diesel fuel consumption from Sublandlord's tank
located at level 3B of the Building shall be measured by direct metering.
Sublandlord shall provide Subtenant with a xxxx at the end of the month for
the Fuel Payment. Subtenant shall deliver the Fuel Payment to Sublandlord
on or before the fifth (5th) day of each calendar month.
In the event of any failure by Subtenant to pay any Additional Rent,
Sublandlord shall have all the rights, powers and remedies provided for in this
Sublease or at law or in equity or otherwise in the event of the nonpayment of
Annual Rent.
5. SECURITY DEPOSIT
Subtenant shall give Sublandlord a check in the amount of Ten Thousand
Dollars ($10,000.00) on the Sublease Commencement Date as a security deposit
(the "Security Deposit") to be held by Sublandlord in an non-interest bearing
account. During the Term, if Sublandlord determines, in its reasonable
discretion, that any deduction is to be made from the Security Deposit for
charges arising under this Sublease or by law, Sublandlord will give written
notice to Subtenant of such deduction and the reason for such deduction within
thirty (30) days after Sublandlord makes such deduction. Subtenant agrees to pay
Sublandlord such sums as may be necessary to restore the Security Deposit to the
amount set forth above.
Within 30 days after the termination of this Sublease, Sublandlord may
apply the Security Deposit to offset any damages Sublandlord has sustained due
to Subtenant's failure to (a)
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maintain the Subleased Premises, (b) surrender possession of the Subleased
Premises as specified in paragraph 14(a) hereof (reasonable wear and tear
excepted), or (c) fully comply with the terms of this Sublease. Any remaining
balance shall be applied to unpaid Annual Rent and/or unpaid Additional Rent.
Sublandlord shall provide Subtenant with an itemized written accounting, showing
all such deductions and the reasons for such deductions. Within thirty (30) days
after the termination or expiration of this Sublease, Sublandlord shall give or
mail to Subtenant the Security Deposit of its balance, and any interest earned
thereon.
If Sublandlord sells, assigns or otherwise transfers all of its interest in
the Subleased Premises during the Term or does not renew the master Lease,
Subtenant agrees that Sublandlord may transfer the Security Deposit to the
purchaser or DRI, respectively. Upon written notice to Subtenant of such
Security Deposit transfer, the Sublandlord shall no longer have any obligations
or responsibility to Subtenant with regard to the Security Deposit.
6. ASSIGNMENT AND SUBLETTING
(a) Subtenant may not assign its interest in this Sublease or sublet all or
any part of the Subleased premises without the prior written consent of
Sublandlord, such consent to be in Sublandlord's sole and absolute discretion.
No permitted assignment or subletting shall relieve Subtenant of any liability
for the payment of Annual Rent, Additional Rent or other obligations under this
Sublease. Any attempted assignment or subletting by Subtenant under this
Sublease without Sublandlord's prior written consent shall be void and shall
constitute a default by Subtenant under this Sublease. An assignment by
operation of law shall also be deemed a prohibited assignment under this
Paragraph 6. In addition, for the purposes of this Paragraph 6, the word
"assignment" shall be defined and deemed to include the following: (a) any
dissolution or reorganization of Subtenant; or (b) the sale or other transfer of
more than twenty-five percent (25%) of the capital stock of Subtenant or the
sale of more than twenty-five (25%) in value of the assets of Subtenant. any
acceptance of Annual Rent by Sublandlord after any unpermitted assignment shall
not constitute approval thereof by Sublandlord. Subtenant's rights under this
Sublease may not become and shall not be listed by Subtenant as an asset under
any bankruptcy, insolvency or reorganization proceedings. No consent to any
assignment or subletting shall be deemed to be a consent to any further
assignment or subletting and the prior written consent of Sublandlord to the
same shall be required in each instance. Notwithstanding the provisions of this
Paragraph 6(a), Subtenant may (i) assign its rights under this Sublease to an
entity which controls Subtenant, is controlled by Subtenant, or which is under
common control with Subtenant without Sublandlord's prior approval; or (ii)
assign its rights under this Sublease to an entity that acquires Subtenant or
control of Subtenant after obtaining Sublandlord's prior written consent, such
consent not to be unreasonably withheld, conditioned, delayed.
(b) Notwithstanding the provisions of Paragraph 6(a) above, Sublandlord
agrees that Subtenant may allow Subtenant's telecommunications customers
("Subtenant's Telecommunications Customers") to co-locate their
telecommunications equipment and facilities in the Subleased Premises; provided,
however, that Subtenant's Telecommunications Customers shall be required to
comply with all the terms and conditions of this Sublease. Subtenant shall be
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responsible and liable for Subtenant's Telecommunications Customers compliance
with all the terms and conditions of this Sublease.
7. PERSONAL PROPERTY AND FIXTURES
All of Subtenant's personal property placed or installed in the Building,
the Common Areas and the Subleased Premises pursuant to this Sublease shall be
and remain Subtenant's property and shall remain in the Building, the Common
Areas and the Subleased Premises at Subtenant's sole risk. Sublandlord shall not
be liable for and Subtenant hereby releases Sublandlord from any and all
liability for theft of Subtenant's personal property or any damage thereto.
Provided Subtenant is not in default under this Sublease, Subtenant shall remove
its personal property, so long as Subtenant shall repair and restore any damage
or injury to the Building the Subleased Premises and the Common Areas to the
condition in which the Building, the Subleased Premises and the Common Areas to
the condition in which the Building, the Subleased Premises and the common Areas
existed on the Possession Date, reasonable wear and tear, loss by fire or other
casualty or condemnation not caused by Subtenant, or repairs which are
Sublandlord's or DRI's obligation, excepted, unless Sublandlord waives such
right in writing. Subtenant's "personal property" shall include the
telecommunications switch and peripheral equipment, the emergency generator, the
backup battery system, the emergency HVAC units, the electric disconnect switch,
the security system and the rooftop antenna ("Subtenant's Equipment"), but shall
not include the conduits, cabling, the electrical wiring, the fire suppression
system, or any structural alteration.
8. REPAIR, MAINTENANCE AND ALTERATIONS
(a) Throughout the Term of this Sublease, Subtenant shall, at its sole cost
and expense, keep and maintain the Subleased Premises and every part thereof and
all property located therein, in good condition and repair, reasonable wear and
tear excepted. In addition, Subtenant shall, at its sole cost and expense,
promptly repair and replace any damage or injury to the Subleased Premises, the
Building and the Common Areas and the plumbing, electrical, HVAC, security and
safety systems of the Building which is in any manner whatsoever caused in whole
or in part by any act, omission, negligence or willful or criminal act of
Subtenant or any of its employees, agents, officers, contractors, servants,
licensees, tenants, concessionaires, guests, invitees, successors or assigns or
Subtenant's Telecommunications Customers. Sublandlord shall have the right to
make any repairs and replacements which Subtenant does not commence within three
(3) days after receiving written notice from Sublandlord of the need for such
repairs and does not thereafter diligently and continuously pursue to
completion. Subtenant shall pay Sublandlord all reasonable costs and expenses of
such repairs within thirty (30) days after receipt of invoice therefor, together
with Interest thereon from the date the invoice is given to Subtenant to the
date paid. Upon the expiration or termination of this Sublease, Subtenant shall
surrender the Subleased Premises to Sublandlord in as good condition as they
were in at the Possession Date, reasonable wear and tear, loss by fire or other
casualty or condemnation not caused by Subtenant, or repairs which are
Sublandlord's or DRI's obligation, excepted, unless such right has been waived
in writing by Sublandlord.
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(b) Subtenant shall have the right to make any alterations to the Building,
the Common Areas and the Subleased Premises necessary for the operation of
Subtenant's telecommunications business after obtaining Sublandlord's written
consent to such alterations, such consent not to be unreasonably withheld,
conditioned, or delayed, Prior to making any alterations to the Subleased
Premises, the Common Areas and/or the Building, Subtenant shall first submit the
plans and specifications for the alterations to Sublandlord for Sublandlord's
written approval, such approval not to be unreasonably withheld, delayed, or
conditioned. Sublandlord shall use reasonable efforts to approve or disapprove
the plans and specifications within ten (10) business days after Sublandlord's
receipt of such plans and specifications. Such plans and specifications shall be
deemed approved if Sublandlord does not approve or disapprove the plans in
writing within said 10-day period. subtenant shall also submit in writing to
Sublandlord the names of Subtenant's general contractor, construction manager,
subcontractors, architect and engineer for Sublandlord's written approval of
Subtenant's general contractor, construction manager and subcontractors, such
approval not to be unreasonably withheld, delayed or conditioned. Sublandlord
shall use reasonable efforts to approve or disapprove Subtenant's general
contractor construction manager and subcontractors, within ten (10) business
days after Sublandlord's receipt of such information. Subtenant's general
contractor, construction manager and subcontractors shall be deemed approved if
Sublandlord does not approve or disapprove Subtenant's general contractor,
construction manager and subcontractors, in writing within said 10-day period.
If Sublandlord and Subtenant are unable to agree upon any plans or
specifications that Subtenant submits to Sublandlord prior to the Rent
Commencement Date, then Subtenant shall have the right to terminate this
Sublease upon ten (10) days prior written notice to Sublandlord. If Subtenant
terminates this Sublease prior to the Rent Commencement Date in accordance with
the previous sentence, then Subtenant shall restore the Building, the Common
Areas and the Subleased Premises to their condition as of the Possession Date,
reasonable wear and tear excepted, and shall be responsible for all of
Subtenant's liabilities and obligations that survive the termination of this
Sublease. Subtenant's alterations to the Subleased Premises and the Building
shall not interfere with any occupant's use of the Building. Subtenant shall
have the right to perform alterations twenty-four (24) hours a day, seven (7)
days a week with reasonable access to freight elevators and other common areas
of the Building provided Subtenant shall coordinate the performance of such
alterations with Sublandlord prior to the commencement of the alterations so
that Subtenant's alterations will not interfere with any occupant's use of the
Building. Subtenant shall fully indemnify DRI and Sublandlord (including their
respective partners, stockholders, officers, directors, employees, agents,
representatives, contractors, tenants, concessionaires, guests, licensees, and
invitees) and their respective successors and assigns for any and all direct and
indirect costs, injuries, expenses, including, but not limited to, attorneys'
fees, claims and damages Sublandlord and DRI may incur as a result of any
alteration to the Building or the Subleased Premises made by or on behalf of
Subtenant. All such alterations shall be made at Subtenant's sole cost and
expense. No such alterations shall decrease the value of the Building. Any and
all alterations, additions, or other improvements made by Subtenant, with or
without the consent of Sublandlord, regardless of how attached (except movable
trade fixtures), shall become immediately upon installation and thereafter
remain the property of Sublandlord, without compensation therefor to Subtenant,
unless otherwise agreed to in writing by Sublandlord; provided, however,
Sublandlord shall have the right to require that Subtenant, upon the termination
or at the
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expiration of this Sublease, remove any or all such alterations, additions and
improvements and restore the Subleased Premises and the Building to their
original condition as of the Possession Date, reasonable wear and tear, loss by
fire or other casualty or condemnation not caused by Subtenant, or repairs which
are Sublandlord's or DRI's obligation, excepted, unless such right has been
waived in writing by Sublandlord. Subtenant agrees to maintain, replace and keep
in good order and repair any and all such alterations, additions and
improvements during the Term of this Sublease.
(c) All maintenance, repairs and replacements to be made and/or performed
by Subtenant under this Sublease shall be made in a good and workmanlike manner
consistent with the quality of labor and materials used in the Building and in
compliance with all applicable laws, ordinances, rules and regulations of
governmental and private authorities (including underwriters and rating
bureaus).
(d) Sublandlord represents and warrants to Subtenant that the floor load
for the Subleased Premises is greater than 80 lbs. per usable square foot.
(e) Subtenant shall have the right to reinforce the floor load capacity to
obtain the capacities required. The floor load requirements will be determined
as part of the architectural plans Subtenant shall submit to Sublandlord for
alterations. All such construction and alterations shall be subject to the terms
and conditions of Paragraph 8(b) hereof.
(f) Subtenant shall have the right to replace the existing fire suppression
system in the Premises with an independent system that shall comply with all
local building and fire codes and ordinances. The installation of such fire
suppression system shall also comply with all local codes and ordinances. All
such construction and alterations shall be subject to the terms and conditions
of Paragraph 8(b) hereof.
(g) Subtenant shall have the right to reroute any water pipe or drain that
passes through the Subleased Premises and provides services to other areas of
the Building. In the event these pipes or drains cannot be rerouted, Subtenant
shall have the right to "pan" the pipes and drains to a main Building drain
provided by the Sublandlord. All such construction and alterations shall be
subject to the terms and conditions of Paragraph 8(b) hereof.
(h) Subtenant shall have the right to install and operate one (1) Global
Positioning Satellite antenna (the "GPS Antenna") on the roof of the Building.
Subtenant shall not be charged any license fee or rent for this right. The
location of the GPS Antenna shall be subject to Sublandlord's consent, such
consent to be in Sublandlord's sole discretion. All such installation,
construction and maintenance shall be subject to the terms and conditions of
Paragraph 8(b) hereof.
(i) Subtenant shall have the right to install, maintain, operate, repair,
replace and remove a 500 KW emergency generator in the 3B Space (the
"Generator"). Subtenant shall have the right to use fuel from Sublandlord's
diesel fuel tank on level 3B for the operation of the Generator in accordance
with the terms and conditions of Paragraph 4(d)(iv) hereof.
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Sublandlord shall assist Subtenant in obtaining approval from local authorities
to locate the Generator in such area. If approval cannot be obtained, Subtenant
shall notify Sublandlord immediately, and Sublandlord shall work with Subtenant
to provide a suitable alternative. Subtenant shall be responsible for and liable
for any damages caused by the operation of the Generator and use by Subtenant
storage of fuel and shall defend, indemnify and hold harmless DRI and
Sublandlord (including their respective partners, stockholders, officers,
directors, employees, agents, representatives, contractors, tenants,
concessionaires, guests, licenses and invitees) and their respective successors
and assigns in accordance with the terms and conditions of Paragraph 9(d) hereof
for any and all direct and indirect cost, injuries, expenses, including, but not
limited to, attorney's fees, claims and damages Sublandlord and DRI may incur as
a result of Subtenant's installation, maintenance, operation, repair,
replacement and removal of the Generator. All such construction, installation,
maintenance, operation, repair, replacement and removal shall be subject to the
terms and conditions of Paragraph 8(b) hereof.
(j) Subtenant shall have the right to install, at its sole expense,
emergency power batteries within the Subleased Premises having sufficient
capacity to sustain Subtenant's telecommunications operations for at least eight
(8) hours. The batteries for such power plant shall be of the sealed, suspended
electrolyte, lead acid design, all in compliance with applicable codes. All such
construction alterations, and installation shall be subject to the terms and
conditions of Paragraph 8(b) hereof.
9. COMPLIANCE, INSURANCE AND INDEMNITY
(a) Subtenant shall not use the Subleased Premises, the Common Areas or the
Building for any unlawful purpose or so as to constitute a nuisance. Subtenant
shall also, at Subtenant's sole expense, comply with all federal, state, county,
city and municipal laws, ordinances and regulations affecting the Subleased
Premises, the Building and the Common Areas, now existing or hereafter enacted.
(b) During the Term, Subtenant shall comply with all of the insurance
requirements set forth in the Master Lease as applicable to the Subleased
Premises. Commencing on the Possession Date and continuing at all times
thereafter through the Expiration Date, Subtenant shall also, at its sole cost
and expense, maintain worker's compensation insurance covering its employees in
statutory limits and commercial general public liability and property damage
insurance of the mutual benefit of DRI, as owner, Sublandlord and Subtenant,
with combined single limits of coverage of at least Five Million and 00/100
Dollars ($5,000,000) (with appropriate cross-liability endorsements so showing),
all of which insurance policies shall insure against all liability of Subtenant
and Subtenant's representatives, contractors, tenants, concessionaires, agents,
servants, employees, guests, licensees, invitees, successors and assigns arising
out of and in connection with Subtenant's use and occupancy of the Building, the
Subleased Premises and the Common Areas, and which shall insure Subtenant's
performance of its indemnity provisions contained in this Sublease. Subtenant
shall deliver to Sublandlord certified copies of the certificates of all
original insurance policies that it is required to maintain under this Sublease
upon Subtenant's execution of this Sublease and at least twenty (20) business
days prior to the renewal dates thereof. If Subtenant fails to provide the
insurance coverage,
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certificates and/or receipts as required to be maintained by it under this
Sublease, then Sublandlord may obtain such coverage without any prior notice to
Subtenant and Subtenant shall reimburse the cost thereof to Sublandlord
immediately on demand.
(c) Anything in this Sublease to the contrary notwithstanding, Subtenant
hereby releases and waives unto Sublandlord and DRI (including their respective
partners, stockholders, officers, directors, employees, agents, representatives,
contractors, tenants, concessionaires, guests, licensees, invitees), and their
respective successors and assigns, all rights to claim or recover damages for
any injury, loss, cost or damage to persons or to the Subleased Premises,
whether or not caused by Sublandlord or DRI or their respective partners,
stockholders, officers, directors, employees, agents, representatives,
contractors, tenants, concessionaires, guests, licensees, invitees, successors
or assigns. All policies of insurance carried or maintained by Subtenant
pursuant to this Sublease shall contain, or be endorsed to contain, a provision
whereby the insurer waives all rights of subrogation against DRI, Sublandlord
and Subtenant, respectively. To the extent that Sublandlord and DRI are
self-insured, the foregoing waiver of subrogation shall be deemed to have been
given by Sublandlord and DRI, respectively, for any matter that would be covered
under a general fire and casualty liability insurance policy.
(d) Subtenant shall indemnify, defend, and hold DRI and Sublandlord and
their respective partners, directors, shareholders, officers, representatives,
agents, employees, contractors, servants, guests, invitees, licensees, tenants,
concessionaires, successors and assigns harmless from and against any and all
claims arising out of (i) Subtenant's use or occupancy of the Subleased Premises
or any part thereof, (ii) any activity, work, or other thing done, permitted or
suffered by Subtenant in or about the Subleased Premises, the Building, the
Common Areas, or any part thereof, (iii) any breach or default by Subtenant in
the performance of any if its obligations under this Sublease or the Master
Lease, (iv) any act, omission, negligence or willful or criminal conduct of
Subtenant, or any officer, representative, agent, employee, contractor, servant,
invitee, guest, tenant, licensee, concessionaire, successor or assign of
Subtenant or any of Subtenant's Telecommunications Customers, or (v) Subtenant's
operation of a telecommunications business; and in each case from and against
any and all damages, losses, liabilities, lawsuits, proceedings, causes of
action, penalties, costs and expenses (including, but not limited to, attorneys'
fees and costs at all tribunal levels) arising in connection with any such claim
or claims as described in (i) through (v) above, or any action brought thereon.
If such action be brought against DRI and/or Sublandlord, Subtenant, upon notice
from Sublandlord, shall defend the same through one or more counsel selected by
Subtenant's insurer or other counsel acceptable to DRI and Sublandlord in DRI's
and Sublandlord's sole and absolute discretion. subtenant assumes all risk of
damage or loss to its property or injury or death to persons in, on, or about
the Subleased Premises, from all causes except the deliberate act, gross
negligence or intentional misconduct of Sublandlord. In addition, subject to the
terms of Paragraph 8(c), Sublandlord shall indemnify, defend and hold Subtenant
harmless from and against any and all claims arising out of (vi) any activity,
work, or other thing done by Sublandlord in or about the Subleased Premises,
(vii) any breach or default by Sublandlord in the performance of any of its
obligations under this Sublease, or (viii) any gross negligence or willful
misconduct of Sublandlord or any officer, agent, employee or contractor of
Sublandlord; and in each case from and against any and all damages, losses,
liabilities, costs and expenses
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(including attorneys' fees and costs at all tribunal levels) arising directly in
connection with any such claim or claims as described in (vi) through (viii)
above, or any action brought thereon. If such action be brought against
Subtenant, Sublandlord, upon notice from Subtenant, shall defend the same
through counsel selected by Sublandlord's insurer, or other counsel reasonably
satisfactory to Subtenant. Sublandlord assumes all risk of damage or loss to its
property or injury or death to persons in, on or about the Building and the
Common Areas from all causes except the act, omission, negligence or willful or
criminal conduct of Subtenant or its employees, representatives, officers,
shareholders, agents, servants, contractors, tenants, concessionaires,
licensees, invitees, guests, successors or assigns. The provisions of this
Paragraph 8 shall survive the expiration or sooner termination of this Sublease.
All furnishings, fixtures, equipment, effects and property of every kind,
nature and description of Subtenant and all persons claiming by, through or
under Subtenant which, during the Term or any access to or occupancy of the
Subleased Premises by Subtenant or anyone claiming by, through or under
Subtenant, may be in the Subleased Premises, shall be there at the sole risk and
hazard of Subtenant, and if the whole or any part thereof shall be destroyed or
damaged by fire, water or otherwise, or by leakage or bursting of water pipes,
steam pipes or other pipes, by theft, or from any other cause, no part of said
loss or damage is to be charged to or to be borne by DRI or Sublandlord unless
the same shall be due to the gross negligence or willful misconduct of DRI or
Sublandlord or their respective employees, agents, servants, successors or
assigns. Notwithstanding the foregoing exculpation from liability, Sublandlord
shall use all reasonable efforts to respond after receiving notification from
Subtenant of emergency situations wherein such conditions or occurrences
threaten to cause interruption or damage to Subtenant's telecommunications
equipment, including, if necessary, entering into the premises of other tenants
to cause the cessation of such adverse conditions or occurrences.
(e) Subtenant's insurance policies required by this Sublease shall: (i) be
issued by insurance companies licensed to do business in the Commonwealth of
Virginia with general policyholder's ratings of at least A and a financial
rating of at least VIII in the most current Best's Insurance Reports available
on the Possession Date, or if such ratings are changed or discontinued, the
parties shall agree to a comparable method of rating insurance companies; (ii)
name Sublandlord and DRI as additional insureds, as their interests may appear;
(iii) provide that the insurance not be cancelled or materially changed in the
scope or amount of coverage unless thirty (30) days advance notice is given to
Sublandlord and DRI; (iv) be primary policies, non-contributing with, or in
excess of, the coverage that any additional insured may carry; (v) provide that
any loss shall be payable notwithstanding any act or negligence of Sublandlord,
Subtenant or DRI which might result in a forfeiture thereunder of such insurance
or the amount of proceeds payable; (vi) have contractual coverage endorsements
insuring indemnities under this Sublease; and (vii) be maintained during the
entire Term.
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10. CONDITION OF SUBLEASED PREMISES
Sublandlord shall deliver the Subleased Premises to Subtenant in the
following condition at Sublandlord's sole cost and expense:
(a) Any asbestos in the Subleased Premises or in any riser/shaft or roofing
material required for Subtenant's conduit, telecommunication entrances or
equipment shall be removed in compliance with all applicable laws at
Sublandlord's expense. If such asbestos cannot be removed, all such asbestos
shall be abated in compliance with all applicable laws at Sublandlord's expense.
(b) Notwithstanding any construction by or on behalf of Subtenant,
throughout the Term of this Sublease, Sublandlord shall keep the Building,
including the roof, in good order and repair at Sublandlord's sole cost and
expense, unless any damage to the Building is caused by Subtenant or its
employees, agents, contractors, licensees, or invitees or Subtenant's
Telecommunications Customers, in which case Subtenant shall, at Subtenant's sole
cost and expense, promptly repair such damage to Sublandlord's satisfaction. To
the best of Sublandlord's knowledge, the Building and the Subleased Premises are
in compliance with all applicable laws, codes and ordinances. If the Subleased
Premises and the Building are not in compliance with such laws, codes and
ordinances then Sublandlord shall promptly cure any such non-compliance, at
Sublandlord's sole cost and expense, unless such non-compliance is caused by
Subtenant or its employees, agents, contractors, licensees, or invitees or
Subtenant's Telecommunications Customers, in which case Subtenant shall, at
Subtenant's sole cost and expense, promptly cure such non-compliance. Subtenant
represents to Sublandlord that it has examined and inspected the Subleased
Premises, found them to be satisfactory for Subtenant's use and accepts them in
their "as is" condition, subject to latent defects.
11. DEFAULT OF SUBTENANT
An Event of Default shall occur under this Sublease (a) if Subtenant shall
fail to pay any installment of Annual Rent, Additional Rent, or other sums under
this Sublease within five (5) days after Subtenant's receipt of written notice
of Sublandlord's non-receipt thereof; (b) if Subtenant shall breach or fail to
observe or perform any of the covenants, conditions, obligations and agreements
of Subtenant under this Sublease (other than those described in Paragraph 11(a)
hereof), and such failure shall continue and not be remedied within ten (10)
business days after Subtenant's receipt of written notice thereof from DRI or
Sublandlord, provided, however, that if a default is not, with due diligence
and/or the payment of money, reasonably capable of being cured within such ten
(10) business day period, then Sublandlord shall not be entitled to exercise its
remedies hereunder if Subtenant commences curing such default within said ten
(10) business day period and thereafter continues to prosecute diligently the
completion of such cure within such longer period as is reasonably necessary
under the circumstances, which period for completion of the curing of such
default shall not in any event be after the time which would cause Sublandlord
to be in default or would subject the Sublandlord to liability under the Master
Lease; (c) if Subtenant files (or has filed against it and not stayed or vacated
within sixty (60) days after filing) any petition or action for relief under any
creditor's law (including bankruptcy,
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reorganization, or similar action), either in state or federal court; (d) if
Subtenant or Guarantor makes any transfer in fraud of creditors as defined in
Xxxxxxx 000 xx xxx Xxxxxx Xxxxxx Bankruptcy Code (11 U.S.C. 548, as amended or
replaced) or has a receiver appointed for its assets (and such appointment shall
not have been stayed or vacated within thirty (30) days); (e) if Subtenant
permits the issuance, perfection or recordation of any mechanic's lien as an
encumbrance against title to the Building or the Subleased Premises on account
of any repairs or improvements constructed by or on behalf of Subtenant and
Subtenant shall not, within thirty (30) days after receipt of written notice of
such lien, cause said lien to be removed or bonded off; or (f) if Subtenant
makes an assignment for the benefit of creditors. In addition to any other
lawful right or remedies which it may have, Sublandlord may do the following:
(i) terminate this Sublease by written notice to Subtenant specifying a date
therefor, which shall be no sooner than five (5) days following receipt of such
notice by Subtenant, and this Sublease shall then terminate on the date so
specified; or (ii) repossess the Subleased Premises, and with or without
terminating this Sublease, relet the same at such amount as Sublandlord desires,
in its sole and absolute discretion, and if the amount for which the Subleased
Premises are relet is less than the Annual Rent, Additional Rent and all other
obligations of Subtenant to Sublandlord hereunder, Subtenant shall immediately
pay the difference, on demand, to Sublandlord, but if in excess of Annual Rent,
Additional Rent and all other obligations of Subtenant hereunder, the entire
amount obtained from such reletting shall belong to Sublandlord, free of any
claim of Subtenant thereto, except that any such excess shall reduce any accrued
present or future obligations of Subtenant under this Sublease. Upon the
occurrence of an Event of Default, all expenses of Sublandlord in repairing,
restoring, or altering the Subleased Premises for reletting as general office
space or telecommunications co-location space, together with leasing fees and
all other expenses in seeking and obtaining a new tenant, shall be charged to
and be a liability of Subtenant. Sublandlord's attorneys' fees and costs in
pursuing any of the foregoing remedies, or in collecting any Annual Rent or
Additional Rent due by Subtenant hereunder, shall be paid by Subtenant.
Subtenant further agrees that Sublandlord may obtain an order for unlawful
detainer from any court of competent jurisdiction without prejudice to
Sublandlord's rights to otherwise collect rents from Subtenant.
All rights and remedies of Sublandlord are cumulative, and the exercise of
any one shall not be an election excluding Sublandlord at any other time from
exercising a different or inconsistent remedy. No exercise by Sublandlord of any
right or remedy granted herein shall constitute or effect a termination of this
Sublease unless Sublandlord shall so elect by written notice delivered to
Subtenant. Sublandlord's delay in asserting or prosecuting any right, claim or
cause of action accruing hereunder is not and shall not be deemed to be a waiver
of, and shall not prejudice the same, or any other right, claim or cause of
action, accruing hereunder at any time. No waiver by Sublandlord of any covenant
or condition shall be deemed to imply or constitute a further waiver of the same
at a later time, and acceptance of Annual Rent or Additional Rent by
Sublandlord, even with knowledge of a default by Subtenant, shall not constitute
a waiver of such default. No acceptance by Sublandlord of a lesser sum than the
Annual Rent, late charges, Additional Rent, Interest or other sums then due
shall be deemed to be other than on account of the earliest installment of such
payments due, nor shall any endorsement or statement on any check or any letter
accompanying any check or payment be deemed an accord and satisfaction,
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and Sublandlord may accept such check or payment without prejudice to
Sublandlord's right to recover the balance of such installment or to pursue any
other remedy in this Sublease provided.
12. LIENS
Subtenant shall not create or permit to be created or to remain, and, shall
promptly discharge or remove or otherwise render ineffective by payment or
posting of a surety bond, or otherwise, within thirty (30) days after filing of
such lien, at its sole cost and expense, any lien, encumbrance or charge (each
or all of which are herein referred to as "Lien") upon the Building, the Common
Areas, or the Subleased Premises, or any part thereof, that arises from the use
or occupancy of the Subleased Premises by Subtenant or by reason of any labor,
service or material furnished or claimed to have been furnished to Subtenant or
by reason of any construction, repair or demolition by or on behalf of
Subtenant. Notice is hereby given that Sublandlord shall not be liable for the
cost and expense of any labor, services or material furnished or to be furnished
with respect to the Subleased Premises, the Building or the Common Areas at or
by the direction of Subtenant or anyone holding the Subleased Premises or any
part thereof by, through or under Subtenant and that no laborer's, mechanic's or
materialman's or other lien for any such labor, service or materials shall
attach to or affect the interest of Sublandlord or DRI in and to the Subleased
Premises, the Building or the Common Areas. Nothing in this Sublease contained
shall be deemed or construed in any way as constituting the consent or request
of Sublandlord or DRI, express or implied, by inference or otherwise, to any
contractor, subcontractor, laborer or materialman for the performance of any
labor or the furnishing of any materials for any specific improvements or repair
to or of the Subleased Premises, the Building or the Common Areas or any part
thereof, nor as giving Subtenant any right, power or authority on behalf of
Sublandlord or DRI to contract for or permit the rendering of any services or
the furnishing of any materials that would give rise to the filing of any lien
against the Subleased Premises, the Building, the Common Areas or any part
thereof. If Subtenant fails to discharge, remove or otherwise render ineffective
by payment, posting of a surety bond, or otherwise, any Lien or to pay the cost
of compliance with any regulation as hereinabove provided, Sublandlord, without
declaring a default hereunder and without relieving Subtenant of any liability
hereunder, and/or DRI may, but shall not be obligated to, discharge or pay the
same, either by paying the amount claimed to be due or by procuring the
discharge of such Lien by deposit or by bonding proceedings, and any amount so
paid by Sublandlord and/or DRI and all costs and expenses incurred by
Sublandlord and/or DRI in connection therewith shall constitute Additional Rent
hereunder and shall be paid by Subtenant to Sublandlord on demand with Interest
thereon.
13. SUBORDINATION AND ATTORNMENT
(a) This Sublease is automatically subject and subordinate to the rights of
DRI in and to the Building and to the lien of all present and future mortgages,
deeds of trust or similar instruments which may now or hereafter encumber the
Building, the Common Areas, or the Subleased Premises, as well as to all present
and future advances under all replacements, consolidations, renewals,
extensions, modifications and refinancings of such mortgages, deeds of trust or
similar instruments. The foregoing provisions shall be self-operative and no
further instrument of subordination shall be required to effectuate such
subordination. Upon request by
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Sublandlord or DRI, however, Subtenant shall, within seven (7) days after
request to do so, execute and deliver such documents confirming this
subordination as Sublandlord and/or DRI may furnish provided such will not
materially, adversely change the terms of this Sublease or unreasonably
interfere with Subtenant's use and occupancy of the Subleased Premises.
Subtenant covenants and agrees to attorn to any successor to Sublandlord's
interests in the Subleased Premises. Subtenant agrees to execute within seven
(7) days after receipt of written request therefor, and as often as requested,
estoppel certificates confirming any factual matter requested therein which is
true and is within Subtenant's knowledge regarding this Sublease, the Subleased
Premises, or Subtenant's use thereof, including, but not limited to, date of
occupancy, the Sublease Commencement Date, the Possession Date, the Rent
Commencement Date, the amount of Annual Rent and Additional Rent due and date to
which Annual Rent and Additional Rent are paid, whether or not Subtenant has any
defense or offsets to the enforcement of this Sublease or the Annual Rent or
Additional Rent payable hereunder or knowledge of any default or breach by
Sublandlord, and that this Sublease, together with any modifications or
amendments, is in full force and effect. Subtenant shall attach to such estoppel
certificate copies of this Sublease and all modifications or amendments. To the
extent not inconsistent with this Paragraph 13(a), the provisions of Paragraph
29(j) shall also apply to the estoppel certificates described in this Paragraph
13(a).
Subtenant agrees to give DRI notice of, and an opportunity (which shall in
no event be less than forty-five (45) days after written notice thereof is
delivered to the mortgagee as herein provided) to cure any Sublandlord default
under this Sublease; and Subtenant agrees to accept such cure if effected by
DRI. No termination of this Sublease by Subtenant shall be effective until such
notice has been given and the cure period has expired without the default having
been cured. Further, Subtenant agrees to permit DRI (or purchaser at any
foreclosure sale or deed in lieu thereof), and its successors and assigns on
acquiring Sublandlord's interest in the Subleased Premises and/or this Sublease,
to become Sublandlord hereunder, with liability for all such Sublandlord's
obligations. Subtenant agrees to attorn to any successor sublandlord, provided
such successor or assign agrees not to disturb the Subtenant's possession
hereunder so long as Subtenant is in full compliance with this Sublease.
(b) Subtenant covenants and agrees to attorn to any successor to
Sublandlord's interests in the Subleased Premises.
14. SURRENDER - HOLDING OVER
(a) Upon the termination of this Sublease for reasons other than
Subtenant's default under Sublease or expiration of the Sublease, Subtenant
shall remove all of its facilities and equipment, including, but not limited to,
the Additional Equipment and Facilities, from the Subleased Premises, repair any
damage to the Subleased Premises, the Common Areas or the Building resulting
from such removal and restore the Subleased Premises to a condition mutually
agreed upon by Sublandlord and Subtenant at the time of such expiration or
termination, normal wear and tear and damage not caused solely by Subtenant
excepted, unless such obligations to restore the Subleased Premises, or any part
thereof, to a condition mutually agreed upon by Sublandlord and Subtenant at the
time of such expiration or termination, have been waived in
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writing by Sublandlord. If Subtenant fails to remove all of its facilities and
equipment, including but not limited to, the Additional Equipment and
Facilities, from the Subleased Premises on or before thirty (30) days after the
termination or expiration of this Sublease, all such facilities and equipment,
including, but not limited to, the Additional Facilities and Equipment, shall
become the personal property of Sublandlord without any compensation to
Subtenant therefor.
(b) If Subtenant shall hold over the expiration or sooner termination of
this Sublease, such holding over shall not be deemed a renewal of this Sublease
but shall be deemed to create a tenancy-at-sufferance terminable upon no more
than seven (7) days notice to Subtenant. During any such holding over, Subtenant
shall continue to be bound by all of the terms and conditions of this Sublease,
except that during such tenancy-at-sufferance, Subtenant shall pay rent at the
rate equal to one hundred twenty-five percent (125%) of the Annual Rent and
Additional Rent payable during the immediately preceding year of the Term. The
increased rent during such holding over is intended to partially compensate
Sublandlord for losses, damages and expenses anticipated to be incurred by
Sublandlord as a result of such holding over. If Sublandlord loses a prospective
tenant because Subtenant fails to vacate the Subleased Premises on the
expiration or sooner termination of this Sublease, Subtenant will be liable for
all damages, costs and expenses, including, but not limited, to fees of
attorneys, brokers, experts and consultants, directly, indirectly and
consequentially incurred by Sublandlord because of Subtenant's wrongful failure
to vacate timely, less the amount of the holdover rent in excess of one hundred
percent (100%) of the then applicable Annual Rent.
15. BROKER'S DISCLOSURE AND COMMISSIONS
Sublandlord and Subtenant hereby represent, covenant, and warrant to the
other that neither of them has dealt with any real estate broker, finder or
other person with respect to this Sublease in any manner. Sublandlord and
Subtenant shall indemnify, defend, and hold harmless the other from any and all
damages resulting from claims that may be asserted against the other resulting
from a breach of this covenant. The provisions of this paragraph shall survive
the expiration or sooner termination of this Sublease.
16. TELECOMMUNICATION ENTRANCES AND CONDUITS
Subtenant shall have the right to construct, or have constructed on its
behalf, up to three (3) diverse telecommunication entrances from the exterior of
the Building to the Subleased Premises. Subtenant may extend this right to a
third party provided the entrances are constructed for the benefit of Tenant.
All such construction shall be subject to the terms and conditions of Paragraph
8(b) hereof. Any aforementioned telecommunication entrances shall become the
property of the Sublandlord and shall be surrendered with the Subleased Premises
upon the expiration of this Sublease or earlier termination. Subtenant shall
also have the right to core drill from the Subleased Premises to the lowest
level of the Building as necessary or saw cut the slab 1 to install new power
and data conduits. Subtenant shall have the right to install up to six 4-inch
conduits per riser. All such construction and installation shall be subject to
the terms and conditions of Paragraph 8(b) hereof.
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17. PERMITS
Subtenant shall be responsible for obtaining, at its cost and expense, any
and all permits necessary for the operation of its telecommunications business
and for any construction, improvements and/or alterations performed by or on
behalf of Subtenant within the Subleased Premises, within the Building, or
outside of the Building. Sublandlord agrees to cooperate with Subtenant to
obtain any such permits.
18. UTILITIES
(a) Sublandlord shall make approximately 600 amps 480 volt, 3-phase, 4-wire
A/C of electric capacity available to Subtenant in the Subleased Premises.
Subtenant shall extend such A/C electric capacity from Sublandlord's switch gear
facility located on level 1B to the Subleased Premises, at Subtenant's sole cost
and expense. Subtenant shall also obtain, at its own expense, and pay for its
entire supply of electric current, which current shall be measured by direct
separate metering by the local power company or by submetering if such direct
separate metering is not available. If Subtenant requires additional
electricity, Subtenant will have the right, at its sole cost and expense, with
the cooperation of the Sublandlord, to reconfigure Subtenant's switch equipment
and facilities and to make application directly to the public utility serving
the Building for such additional electricity.
(b) Sublandlord shall provide Subtenant with electricity, at no cost to
Subtenant, from the Possession Date to the Rent Commencement Date (the
"Construction Period"). Subtenant shall be responsible for paying for its own
electricity during the Term of this Sublease after the Rent Commencement Date in
accordance with the provisions of Paragraph 18(a) hereof.
(c) Sublandlord shall provide Subtenant with heating and air conditioning
for the Subleased Premises at levels similar to those maintained in Class "A"
office buildings ("HVAC Service").
(d) Sublandlord shall not be liable for the interruption of any of the
above-mentioned services caused by strikes, lockouts, accidents or other causes
beyond the reasonable control of Sublandlord. Any such interruption of service
shall never be deemed an eviction or disturbance of Subtenant's use and
possession of the Subleased Premises or any part thereof, or render Sublandlord
liable to Subtenant for damages, or relieve Subtenant from performance of
Subtenant's obligation under this Sublease, unless the interruption is the
result of Sublandlord's gross negligence or willful misconduct. Sublandlord
shall use its best efforts to restore the interrupted service within a
reasonable time after interruption if the cause of interruption is subject to
Sublandlord's control. If such interruption of the above-mentioned services is
within Sublandlord's control and such interruption continues for more than five
(5) consecutive business days, then rent shall be abated until such time as all
such above-listed services are restored.
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19. FENCING
Subtenant shall have the right to fence or screen in the 1B Space provided
Subtenant complies with the terms and conditions of Paragraph 8(b) hereof for
the construction and installation of any such fence or screen. Subtenant shall
provide Sublandlord with all keys, cards or other devices necessary for
Sublandlord to gain access to the 1B Space behind such screens or fences. Upon
the termination of this Sublease for reasons other than Subtenant's default or
expiration of this Sublease, Subtenant shall remove any and all such fences and
screens, repair any damage to the Subleased Premises, the Common Areas or the
Building done by such removal, and restore the Subleased Premises to their
original condition, normal wear and tear and damage not caused solely by
Subtenant excepted, unless such obligations to restore the Subleased Premises,
or any part hereof, to their original condition have been waived in writing by
Sublandlord.
20. SECURITY
Subtenant shall have the right to install a private security system for the
Subleased Premises provided Subtenant complies with the terms and conditions of
Paragraph 8(b) hereof. Subtenant shall provide Sublandlord with any keys, cards
or other devices necessary for Sublandlord to gain access to the Subleased
Premises twenty-four (24) hours a day, seven (7) days a week. Subtenant shall
keep, maintain and make available to Sublandlord upon Sublandlord's request all
security system data, including, but not limited to, entry and exit records for
the Subleased Premises, for a period of one (1) year from the date of any such
entrance and exit. Upon the termination of this Sublease, Subtenant shall remove
such security system, repair any damage to the Subleased Premises, the Common
Areas or the Building done by such removal, and restore the Subleased Premises
to their original condition, normal wear and tear and damage not caused solely
by Tenant excepted, unless such obligations to restore the Subleased Premises,
or any part thereof, to their original condition have been waived in writing by
Sublandlord.
21. ENVIRONMENTAL COMPLIANCE
(a) Definitions.
(i) "Contamination" as used herein means the uncontained or
uncontrolled presence of or release of Hazardous Substances into any
environmental media and into or on any portion of the Building, the Common
Areas, or the Subleased Premises, or any part thereof, so as to require
remediation, clean up or investigation under any applicable Environmental
Laws.
(ii) "Environmental laws" as used herein means all federal, state, and
local laws, regulations, orders, permits, ordinances, and the like
concerning protection of human health and/or the environment.
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(iii) "Hazardous Substances" as used herein means any hazardous or
toxic substance or waste as those terms are defined by any applicable
federal or state law or regulation (including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. 9601 et.seq. ("CERCLA") and the Resource Conversation and Recovery
Act, 42 U.S.C. 6901 et. seq. ("RCRA") and petroleum products and oil.
(b) Compliance. Subtenant warrants that all its activities in the Subleased
Premises, the Building and the Common Areas during the Term of this Sublease
will be conducted in compliance with Environmental Laws.
(c) Registrations. Subtenant, at Subtenant's sole cost and expense, shall
obtain and at all times comply with the terms and conditions of all permits or
licenses or approvals under Environmental Laws necessary for Subtenant's
operation of its business in the Subleased Premises and shall comply with the
terms and conditions of all such permits, licenses, approvals, notifications,
and registrations and with any other applicable Environmental Laws. Subtenant
warrants that it has obtained or, at the appropriate time, will obtain, all such
permits, licenses or approvals and has made or, at the appropriate time, will
make all notifications and registrations required by any applicable
Environmental Laws necessary for Subtenant's operation of its business in the
Subleased Premises.
(d) Hazardous Substances. Subtenant shall not cause or permit any Hazardous
Substances to be brought upon, kept or used in or about the Subleased Premises,
the Building or the Common Areas, except for normal cleaning fluids and
chemicals and (ii) battery fluid properly contained within Subtenant's backup
battery system, and then only in compliance with all Environmental Laws and the
requirements of any insurance carrier insuring the Building, the Common Areas
and/or the Subleased Premises. Subtenant shall not cause or permit the release
of any Hazardous Substances into any environmental media such as air, water or
land, or into or on the Subleased Premises, the Building or the Common Areas. If
any such release for which Subtenant is responsible under this paragraph shall
occur during the Term, Subtenant shall, at its sole cost and expense, (i)
immediately take all necessary steps to contain, control and clean up such
release and any associated contamination, (ii) notify Sublandlord and DRI, and
(iii) take any and all action which may be required by Environmental laws,
governmental agencies, Sublandlord and DRI. Subtenant shall, under no
circumstances whatsoever, (iv) treat, store or dispose of any Hazardous Waste
(as all such terms are defined by RCRA, and the regulations promulgated
thereunder) within the Subleased Premises, the Building or the Common Areas, (v)
discharge Hazardous Substances into the storm system serving the Building, or
(vi) install any underground tank or underground piping on or under the
Building.
(e) Indemnity. Subtenant shall and hereby does indemnify, defend and hold
DRI and Sublandlord harmless from and against any and all expense, loss and
liability suffered by either of them and/or their respective employees, agents,
officers, partners, tenants, concessionaires, contractors, licensees, invitees,
guests, successors or assigns by reason of Subtenant's improper storage,
generation, handling, treatment, transportation, disposal, or arrangement for
transportation or disposal of any Hazardous Substances (whether accidental,
intentional, or
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negligent) or by reason of Subtenant's breach of any warranty or breach of any
of the covenants or provisions of this Paragraph 21. Such expenses, losses and
liability shall include, without limitation, (i) any and all expenses that are
incurred by DRI and/or Sublandlord in complying with any Environmental Laws as a
result of Subtenant's failure to comply with the terms of this Sublease; (ii)
any and all costs that DRI and/or Sublandlord may incur in studying or remedying
any contamination at or arising from the Subleased Premises, the Building or the
Common Areas as a result of or in connection with Subtenant's breach of any
warranty or breach of any of the covenants or provisions of this Paragraph 21;
(iii) any and all costs that DRI and/or Sublandlord may incur in studying,
removing, disposing or otherwise addressing any Hazardous Substances that
Subtenant improperly stored, generated, handled, treated, transported or
disposed of or failed to remove from the Subleased Premises, the Building or the
Common Areas; (iv) any and all fines, penalties or other sanctions assessed upon
DRI and/or Sublandlord by reason of Subtenant's failure to comply with
Environmental laws; and (v) any and all legal and professional fees and costs
incurred by DRI and/or Sublandlord in connection with the foregoing. The
indemnity contained herein shall survive the termination or expiration of this
Sublease.
22. ACCESS
(a) Subtenant shall have access to the Subleased Premises and the Common
Areas twenty-four (24) hours a day, seven (7) days a week and shall have access
to the cafeteria located in the Building during such hours as the cafeteria may
be open for business. Any of Subtenant's employees, agents, contractors,
licensees, or invitees or Subtenant's Telecommunications Customers desiring
unescorted access to the Subleased Premises, the Common Areas and the cafeteria
shall be subject to all such security checks that Sublandlord deems necessary,
in its sole and absolute discretion. If Sublandlord determines, in its sole and
absolute discretion, that any such employee, agent, contractor licensee, or
invitee of Subtenant or Subtenant's Telecommunications Customer has passed the
security checks, Sublandlord shall issue to such employee, agent, contractor,
licensee, or invitee of Subtenant or Subtenant's Telecommunications Customer a
picture identification card which shall be worn and openly displayed while in
the Building or the subleased Premises. If Sublandlord determines, in its sole
and absolute discretion, that any such employee, agent, contractor, licensee or
invitee of Subtenant or Subtenant's Telecommunications Customer fails the
security checks, then such employee, agent, contractor, licensee or invitee of
Subtenant or Subtenant's Telecommunications Customer shall not be granted
unescorted or escorted access to the Subleased Premises or the Building. All of
Subtenant's escorted visitors, guests and invitees, must check in with the
security desk in the lobby of the Building and obtain a visitor's pass prior to
gaining access to the building and the Premises. Subtenant shall have the right
to access and use the Building's loading dock during the Term of this Sublease.
Subtenant shall coordinate its use of the loading dock so that Subtenant's use
of the loading dock shall not interfere with any other occupant's use of the
loading dock.
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(b) Sublandlord shall have access to the Subleased Premises twenty-four
(24) hours a day, seven (7) days a week without giving Subtenant prior notice.
Notwithstanding the foregoing sentence, Sublandlord agrees to give Subtenant not
less than forty-eight (48) hours prior notice before performing any maintenance
within the Subleased Premises, except in cases of an emergency, which shall be
determined by Sublandlord in its sole and absolute discretion, in which case
Sublandlord shall not be required to notify Subtenant before performing any
maintenance in the Subleased Premises.
23. USE
Subtenant shall use the Subleased Premises solely for general office use
and the installation, operation, maintenance, replacement and repair of
telecommunications and switch equipment and facilities, including the
co-location of communications and switch equipment and facilities owned by third
parties in connection with Subtenant's operation of a telecommunications
business. Prior to installing any non-telecommunications equipment or facilities
of Subtenant or any third party in the Subleased Premises (the "Additional
Equipment and Facilities"), Subtenant shall provide Sublandlord with a list of
all such equipment and facilities for Sublandlord's written approval, such
approval to be in Sublandlord's sole and absolute discretion. Sublandlord shall
use reasonable efforts to approve or disapprove such equipment or facilities
within ten (10) business days after Sublandlord's receipt of such list of
equipment and facilities. Such equipment and facilities shall be deemed rejected
if Sublandlord does not approve or disapprove such equipment or facilities
within said 10-day period. Subtenant's and any third party's telecommunications
and switch equipment and facilities, and the Additional Equipment and Facilities
shall not interfere with Sublandlord's, DRI's or any Building occupants use of
the Building. Subtenant shall not xxx or permit the Subleased Premises to be
used for any other purpose without prior written approval of Sublandlord in its
sole and absolute discretion.
24. PARKING
Subtenant shall have the exclusive use of four (4) designated, reserved
parking spaces in the parking area in the Building during the Term at the
prevailing rate for such parking space within the Building. Subtenant shall pay
to Sublandlord as Additional Rent each month during the Term all amounts due for
such parking spaces. All such spaces shall be used in accordance with the terms
of the Master Lease.
25. SUBLANDLORD'S COVENANT
Sublandlord covenants that it has the right to enter into this Sublease for
the Term and if Subtenant shall pay the rents and perform the covenants, terms
and conditions of this Sublease and if Subtenant is not in default hereunder,
Subtenant shall, during the Term hereof, peaceably and quietly have, hold and
enjoy the Subleased Premises, subject, however, to the terms, covenants and
conditions of the Master Lease and this Sublease and subject further to the
rights of any mortgagee of the Building and/or Sublandlord's interest in this
Sublease.
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26. NOTICES
Unless otherwise provided in this Sublease, all notices, demands, requests
or other communications required or desired to be given hereunder by either
party to the other shall be in writing and shall be deemed duly given (i) when
delivered, if delivered in person (with receipt therefor); (ii) two (2) postage
prepaid, return receipt requested; (iii) one (1) business day after sending, if
sent by a nationally recognized overnight courier service (e.g., Federal
Express, DHL, UPS); or (iv) when sent, if sent by facsimile, after receiving
confirmation of the other party's receipt of the facsimile. Notice to the
respective parties shall be addressed as follows:
To Sublandlord: Virginia Electric and Power Company
ATTN: Senior Real Estate Administrator
One Xxxxx River Plaza, 6th Floor
P.O. Box 26666
Xxxxxxxx, Xxxxxxxx 00000
Facsimile Number: (000) 000-0000
With a copy to: Virginia Electric and Power Company
ATTN: Manager Corporate Security and
Administrative Services
Xxx Xxxxx Xxxxx Xxxxx, 0xx Xxxxx
P.O. Box 26666
Xxxxxxxx, Xxxxxxxx 00000
Facsimile Number: (000) 000-0000
To Subtenant: Net2000 Communications Real Estate, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
XxXxxx, Xxxxxxxx 00000
Attention: Regulatory & Law Director
Facsimile Number: (000) 000-0000
With copies to:
Net2000 Communications Real Estate, Inc.
0000 Xxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Facilities Manager
Facsimile Number: (000) 000-0000
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and:
Xxxxxxx X. Xxxxx, Esquire
Young Xxxxxxx & Xxx Xxxx, P.C.
X.X. Xxx 0000
Xxxxxxxxxx, Xxxxxxxx 00000-0000
Facsimile Number: (000) 000-0000
Overnight Delivery: Xxxxx 000, 000 Xxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Each party may, by like written notice given at least fifteen (15) days in
advance of its being effective, designate alternative addresses and/or addresses
to which such notices shall be directed.
27. DAMAGE BY FIRE, ETC.
If the Subleased Premises shall be partially damaged by fire or other
casualty insured under Sublandlord's insurance policies, and if DRI or its
applicable lender(s) shall permit insurance proceeds paid as a result thereof to
be so used, then upon receipt of the insurance proceeds, Sublandlord is
obligated, except as otherwise provided herein, to promptly repair and restore
the same (exclusive of improvements made by Subtenant and exclusive of
Subtenant's trade fixtures, decorations, signs and contents) substantially to
the condition thereof immediately prior to such damage or destruction; limited,
however, to the extent of the insurance proceeds received by Sublandlord. If by
reason of such occurrence: (a) the Subleased Premises are rendered wholly
untenantable; (b) the Subleased Premises are damaged in whole or in part as a
result of a risk which is not covered by Sublandlord's insurance policies; (c)
DRI's lender does not permit a sufficient amount of the insurance proceeds to be
used for restoration purposes; or (d) the Building is damaged (whether or not
the Subleased Premises are damaged) to an extent of fifty percent (50%) or more
of the fair market value thereof, Sublandlord or DRI may elect either to repair
or cause to be repaired the damage as aforesaid, or Sublandlord may cancel this
Sublease by written notice of cancellation given to Subtenant within sixty-five
(65) days after the date of such occurrence, and thereupon this Sublease shall
terminate with no further liability to either party, except as set forth herein.
Subtenant shall vacate and surrender the Subleased Premises to Sublandlord
within ten (10) days after receipt of such notice of termination. In addition,
Subtenant may terminate this Sublease by written notice given to Sublandlord at
any time between the one hundred eighty-first (181st) and the two hundred
thirtieth (230th) days after the occurrence of any such casualty, if Sublandlord
has failed to restore the damaged portions of the Building (including the
Subleased Premises) within one hundred eighty (180) days of such casualty.
However, if Sublandlord is prevented by causes beyond its reasonable control
(including, without limitation, those encompassed in the meaning of the term
force majeure ("Delays"), from completing the restoration within said one
hundred eighty (180)-day period, and if Sublandlord provides Subtenant with
written notice of such cause for delay, then Sublandlord shall have no
additional period beyond said one hundred eighty (180) days, equal to the Delays
in which to restore the damaged areas of the Building; and, Subtenant may
terminate
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this Sublease after said additional period beyond said one hundred eighty (180)
days, equal to the Delays in which to restore the damaged areas of the Building;
and, Subtenant may terminate this Sublease after said additional period required
for completion has expired with the Building not having been substantially
restored. In such case, Subtenant shall vacate and surrender the Subleased
Premises to Sublandlord within ten (10) days after the expiration of
Sublandlord's date certain for restoration to be completed as set forth in the
preceding sentence. Upon the termination date of this Sublease as aforesaid,
Subtenant's liability for the Annual Rent shall cease as of the effective date
of the termination of this Sublease, subject, however, to the provisions for
abatement of Annual Rent hereinafter set forth.
Unless this Sublease is terminated as aforesaid, this Sublease shall remain
in full force and effect, and Subtenant shall promptly repair, restore, or
replace Subtenant's improvements, trade fixtures, decorations, signs and
contents in the Subleased Premises, the Common Areas and the Building in a
manner and to at least a condition equal to that existing prior to their damage
or destruction.
If by reason of such fire or other casualty the Subleased Premises are
rendered wholly untenantable, the Annual Rent and other charges payable by
Subtenant shall be fully abated, or if only partially damaged, such Annual Rent
and other charges shall be abated proportionately as to that portion of the
Subleased Premises rendered untenantable, in either event (unless this Sublease
is terminated, as aforesaid) from the date of such casualty until receipt of
notice by Subtenant from Sublandlord that the subleased Premises have been
substantially repaired and restored, or until Subtenant's business operations
are restored in the entire Subleased Premises, whichever shall first occur.
Subtenant shall continue the operation of Subtenant's business in the Subleased
Premises or any part thereof not so damaged during any such period to the extent
reasonably practicable from the standpoint of prudent business management.
Except for the abatement of the Annual Rent hereinabove set forth, Subtenant
shall not be entitled to, and hereby waives, all claims against Sublandlord and
DRI for any compensation or damage for loss of use of the whole or any part of
the Subleased Premises and/or for any inconvenience or annoyance occasioned by
any such damage, destruction, repair or restoration.
28. EMINENT DOMAIN
If all of the Subleased Premises, or such part thereof as will make the
same unusable for the purposes contemplated by this Sublease, be taken under the
power of eminent domain (or a conveyance in lieu thereof), then this Sublease
shall terminate as of the date possession is taken by the condemnor, and Annual
Rent shall be adjusted between Sublandlord and Subtenant as of such date. If
only a portion of the Subleased Premises is taken and Subtenant can continue use
of the remainder, then this Sublease will not terminate, but Annual Rent shall
xxxxx in a just and proportionate amount to the loss of use occasioned by the
taking. Subtenant shall have no right or claim to any part of any award made to
or received by Sublandlord or DRI for any taking and no right or claim for any
alleged value of the unexpired Term of this Sublease; provided, however, that
Subtenant shall not be prevented from making a claim against the condemning
governmental authority (but not against Sublandlord or DRI) for any moving
expenses or taking
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of Subtenant's personal property, or such other award as may be allowed by law
without reducing Sublandlord's award.
29. MISCELLANEOUS PROVISIONS
(a) Except as may be otherwise provided in this Sublease, in the event of
any action or proceeding brought by either Sublandlord or Subtenant against the
other under this Sublease, the prevailing party shall be entitled to recover
from the other party the reasonable fees and expenses of its attorneys and its
court costs, expert witness fees and other reasonable expenses incurred in such
action or proceeding, including those incurred by or through any appeal.
(b) This Sublease may be executed in several counterparts, each of which
shall be an original, but all of which shall constitute one and the same
instrument. In case one or more of the provisions contained in this Sublease or
their application shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained in
this Sublease and any other applications of such provisions shall not in any way
be affected or impaired.
(c) Notwithstanding anything in this Sublease to the contrary, the rights
of Subtenant are subject to all matters of title and survey as to which
Sublandlord's rights under the Master Lease are subject.
(d) Sublandlord shall, at Sublandlord's cost, provide Subtenant with a
listing in the Building's directory if SL makes such a listing available to the
other tenants in the Building.
(e) This Sublease contains the entire understanding between the parties
with respect to the subject matter or this Sublease. The provisions of this
Sublease may not be waived or modified orally or in any other manner than by an
agreement in writing signed by both parties or their respective successors in
interest.
(f) Sublandlord may assign its rights under this Sublease without affecting
the obligations of Subtenant hereunder; upon any such assignment, Sublandlord
shall be relieved of all responsibility and shall be released from any liability
thereafter accruing under this Sublease so long as the same shall have been
accepted by the assignee directly or by operation of law. If any prepaid Annual
Rent has been paid by Subtenant, Sublandlord may transfer the Security Deposit
and/or prepaid Annual Rent to Sublandlord's successor, and upon such transfer,
Sublandlord shall be released from liability for return of the Security Deposit
or prepaid Annual Rent.
(g) This Sublease may not be recorded by either party; provided, however,
both parties agree, upon request of the other party, to execute a Memorandum
hereof for recording purposes, the preparation and recording costs of which
shall be borne by the requesting party.
(h) If Sublandlord or its employees, officers, directors or stockholders
are ordered to pay Subtenant a money judgment because of Sublandlord's default
under this Sublease, said
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money judgment may only be enforced against and satisfied solely out of
Sublandlord's interest in the Subleased Premises, including the rental income
and proceeds from the lease thereof or any part thereof. No other assets of
Sublandlord or said other parties exculpated by the preceding sentence shall be
liable for, or subject to, any such money judgment.
(i) The obligations, covenants, indemnifications, representations and
liabilities of Subtenant accruing under this Sublease prior to the expiration or
earlier termination of the Term of this Sublease shall survive such expiration
or earlier termination.
(j) In addition to the estoppel certificates described in Paragraph 13(a)
hereof, Subtenant shall execute and deliver to Sublandlord, or any proposed
purchaser of Sublandlord's interest under this Sublease, estoppel certificates
with regard to the status of this Sublease in such form and substance as may
from time to time be reasonably requested by Sublandlord. In the event that
Subtenant shall fail, for a period of seven (7) days after receipt of the
written request, to execute such certificate or to express in writing the manner
in which any such certificate tendered for execution is incorrect, the
certificate as tendered shall be conclusively deemed for all purposes to be
correct and may be relied upon by the anticipated recipient and any third
persons. To the extent not inconsistent with this Paragraph 29(j), the
provisions of Paragraph 13(a) shall also apply to the estoppel certificates
described in this Paragraph 29(j).
(k) The various rights, elections and remedies of Sublandlord contained in
this Sublease shall be cumulative and no one of them shall be construed as
exclusive of any of the others, or of any right, priority or remedy allowed or
provided for by law or in equity, including injunctive relief.
(l) The captions by which the paragraphs of this Sublease are identified
are for convenience only and shall have no effect upon the interpretation of
this Sublease. Wherever the context so requires, the singular number shall
include the plural, the plural shall refer to the singular and the neuter gender
shall include the masculine and feminine genders.
(m) Subject to the restrictions on assignment and subletting set forth in
Paragraph 6 hereof, the covenants, terms and conditions of this Sublease shall
inure to the benefit of and be binding upon Sublandlord and Subtenant and their
respective successors and assigns.
(n) This Sublease shall be governed and interpreted in accordance with the
laws of the Commonwealth of Virginia.
(o) With respect to any actions, consents, requests or requirements that
either party is required to satisfy, perform or give to the other party
hereunder, both parties agree that, except as expressly provided herein to the
contrary, they shall act in a commercially reasonable manner in satisfying,
performing or giving such actions, consents, requests or requirements, except as
otherwise noted herein.
(p) Subtenant agrees to comply with and adhere to the following additional
rules and regulation
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(1) Obstruction of Common Areas. Subtenant shall not, whether
temporarily, accidentally or otherwise, allow anything to remain in, place
or store anything in, or obstruct in any way, any sidewalk, court, hall,
passageway, entrance, or shipping area. Subtenant shall lend its full
cooperation to keep such areas free from all obstruction and in a clean and
sightly condition, and move all supplies, furniture and equipment as soon
as received directly to the Subleased Premises, and shall move all such
items and waste that are at any time being taken from the Subleased
Premises directly to the areas designated for disposal. All courts,
passageways, entrances, exists, elevators, escalators, stairways,
corridors, halls and roofs are not for the use of the general public and
Sublandlord shall in all cases retain the right to control and prevent
access thereto by all persons whose presence, in the judgment of
Sublandlord, shall be prejudicial to the safety, character, reputation and
interest of the Building and its tenants; provided, however, that nothing
herein contained shall be construed to prevent such access to persons with
whom Subtenant deals within the normal course of Subtenant's business so
long as such persons are not engaged in illegal activities.
(2) Restrooms. The restrooms, toilets, urinals, vanities and the other
apparatus shall not be used for any purpose other than that for which they
were constructed, and no foreign substance of any kind whatsoever shall be
thrown therein. The expense of any breakage, stoppage or damage resulting
from the violation of this rule shall be borne by Subtenant if its agents,
guests, licensees, employees or invitees or Subtenant's Telecommunications
Customers shall have caused it.
(3) Intoxication. Sublandlord reserves the right to exclude or expel
from the Building any person who, in the judgment of Sublandlord is
intoxicated, or under the influence of liquor or drugs, or who in any way
violates any of the rules and regulations set forth herein.
(4) Nuisances and Certain Other Prohibited Uses. Subtenant shall not
(a) use the Subleased Premises for housing, lodging, or sleeping purposes;
(b) place any musical or sound producing instrument or device inside or
outside the Subleased Premises which may be heard outside the Subleased
Premises; (c) operate any electrical device from which may emanate waves
that could interfere with or impair radio and/or television broadcasting,
reception, or transmission from or in the Building or elsewhere; (d) bring
or permit to be in the Building any bicycle, other vehicle, dog (except in
the company of a blind person), other animal or bird; (e) make or permit
any objectionable noise or odor to emanate from the Subleased Premises; (f)
disturb, harass, solicit or canvas any occupant of the Building; (g) do
anything in or about the Subleased Premises which could be a nuisance or
tend to injure the reputation of the Building; and (h) allow any firearms
in the Building or the Subleased Premises except as approved by Sublandlord
in writing.
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(5) Solicitation. Subtenant shall not canvas other tenants in the
Building to solicit business or contributions and shall not exhibit, sell
or offer to sell, use, rent or exchange any products or services in or from
the Subleased Premises unless ordinarily embraced within the subtenant's
permitted use as specified in Paragraph 23 of this Sublease.
(6) Energy Conservation. Subtenant shall not waste electricity, water,
heat or air conditioning and agrees to cooperate fully with Sublandlord to
insure the most effective operation of the Building's heating and air
conditioning.
(7) Parking. Parking is in designated parking areas only. There may be
no vehicles in "no parking" zones or at curbs. Handicapped spaces are for
handicapped persons and the Police Department will ticket unauthorized
(unidentified) cars in handicapped spaces. Sublandlord reserves the right
to remove vehicles that do not comply with this Sublease or these rules and
regulations and Subtenant shall indemnify and hold harmless Sublandlord
from its reasonable exercise of these rights with respect to the vehicles
of Subtenant and its employees, agents and invitees.
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IN WITNESS WHEREOF, and intending to be legally bound, one to the other,
the parties hereto have executed this Sublease as of the date first set forth
above.
SUBLANDLORD:
VIRGINIA ELECTRIC AND POWER
COMPANY, a Virginia public service corporation
By: /s/ Xxxxx X. Xxxxx
------------------------------------------
Name: Xxxxx X. Xxxxx
----------------------------------------
Its: SR. V.P. Human Resources
-----------------------------------------
SUBTENANT:
NET2000 COMMUNICATIONS REAL
ESTATE, INC., a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxx
------------------------------------------
Name: Xxxxx Xxxxxxxxx
----------------------------------------
Its: Vice President HR & Administration
-----------------------------------------
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