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EXHIBIT 10.23
2/19/99
LEASE
This lease, dated for reference purposes only, as of the 4th day of
January, 1999, is entered into by and between XXXXXXX ATRIUM LIMITED
PARTNERSHIP, a Maryland limited partnership ("Landlord"), and NET2000
COMMUNICATIONS REAL ESTATE, INC., ("Tenant");
PREAMBLE
Landlord, in consideration of the rent to be paid and the covenants and
agreements to be performed by Tenant, as hereinafter set forth, does hereby
lease, demise, and let unto Tenant and Tenant hereby leases and accepts from
Landlord that certain space in the "Building," as defined below, shown and
designated on the floor plan attached hereto as Exhibit "A" and incorporated
herein by this reference (the "Premises") for the "Term," as defined below,
unless sooner terminated as herein provided. The Premises are leased by Landlord
to Tenant and are accepted and are to be used and possessed by Tenant upon and
subject to the following terms, provisions, covenants, agreements, and
conditions.
1. PRINCIPAL LEASE PROVISIONS.
Each reference in this Lease to any of the terms described in this
Article I shall mean and refer to the following; however, the other Articles of
this Lease contain numerous refinements and exceptions which qualify the
provisions of this Article; all other terms are as defined in this Lease:
1.1 Landlord's Address: c/o Mega Management Company
XX Xxx 00
Xxxxxxxxxx, XX 00000
ATTN: Xxxxx Xxxxx Xxxxxx
With copy to: Xxxxxxx Management Company
000 X. Xxxxxxx Xxxxxx, #000
Xxxxxxxxx, XX 00000
1.2 Tenant's Address: c/o Net2000 Communication, Inc.
0000 Xxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attn: Legal Department
With copy to: Net2000 Communications, Inc.
0000 Xxx Xxxx Xxxx
Xxxxxxx, Xxxxxxxx 00000
Attn: Facilities Manager
1.3 Building: One Market Center
000 Xxxx Xxxxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
1.4 (a) Rentable Square Footage of the Building:
203,616 square feet
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(b) Rentable Square Footage of Retail Space:
61,536 square feet
(c) Rentable Square Footage of Office Space:
142,080 square feet
1.5 Area of Premises: 16,864 rentable square feet. Tenant shall have the
right, at Tenant's expense, using an architect or other professional approved by
Landlord, which approval shall not be unreasonably withheld or delayed, during
the period after the substantial completion of the Landlord's Work and prior to
the Commencement Date of the Lease Term to verify the accuracy of this figure
using the method for measuring rentable area as described in the Standard Method
for Measuring Floor Area in Office Buildings, ANSI Z65.1-1980 (reaffirmed in
1989), except that the vertical chases, indicated on Exhibit "A", used in common
with telecommunication Tenants of the Building shall be considered rentable
square feet. In the event the rentable area of the Premises is greater or less
than 16,864 square feet, the Tenant's Percentage and the Monthly Rental set
forth below shall be appropriately adjusted.
1.6 Floor Number: Forth Floor
1.7 Suite Number: 0401 A
1.8 Lease Term: 10 years and 6 months plus two 5 year
extension options
1.9 Commencement Date of Lease Term. The Commencement Date of the Lease
shall be the date that Landlord provides Tenant a fully executed Lease and shall
be acknowledged by Landlord and Tenant with a side letter agreement.
1.10 Termination Date of Initial Lease Term. The initial term of the
Lease will terminate at 11:59 p.m. on the day immediately preceding 10 years and
6 months after the Commencement Date unless sooner terminated as provided in
this Lease.
1.11 Monthly Rental During First Lease Year: U.S. $16,161.33
(I.e., 1/12 of $11.50/sq. ft. per year)
1.12 Tenant's Percentage
(a) 8.28% of Building
(b) -0-% of Retail Space
(c) 11.87% of Office Space
1.13 Security Deposit: None
1.14 Brokers: CB Xxxxxxx Xxxxx, Inc. (Xxxxx Xxxxxxx)
Telecom Realty Group, Inc. (Xxxxxx X.
Xxxxxxxx)
1.15 State: Maryland
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1.16 Use of Premises: General office use and switch facility as more
particularly described in section 7.1.
2. PREMISES.
2.1 Premises: Landlord hereby leases the Premises to Tenant and Tenant
hereby leases the Premises from Landlord.
2.2 Common Areas. Tenant shall have, as appurtenant to the Premises, the
non-exclusive right, in common with others, subject to reasonable rules of
general applicability to tenants of the Building from time to time made by
Landlord and of which Tenant is given notice, to the use of the following areas
of the Building: common entrances, lobbies, corridors, elevators, ramps, drives,
service ways, restrooms, and common walkways necessary to access to the Building
(the "Common Area"). Tenant hereby agrees that Landlord shall have the right,
for the purpose of accommodating the other tenants of the Building, to increase
or decrease the configuration and dimensions or to otherwise alter the common
corridors on any floor so long as Tenant's access to the Premises, restrooms,
stairwells, and elevators is not materially interfered with thereby. Landlord
reserves the right from time to time, provided such action does not materially
interfere with Tenant's use of the Premises or its business operations, (a) to
install, use, maintain, repair, replace, and relocate for service to the
Premises and/or other parts of the building pipes, ducts, conduits, wires
appurtenant fixtures, and mechanical systems, wherever located in the Premises
or the Building, and (b) to alter, close, or relocate Common Areas or any
facility therein.
3. CONSTRUCTION, TERM AND POSSESSION.
3.1 Landlord's Work. Landlord shall proceed to do the work (the
"Landlord's Work") that is described in Exhibit B, attached hereto and
incorporated herein by reference. Except for the Landlord's Work, Tenant is
accepting the Premises in its present "as is" condition. Landlord shall tender
the Premises to Tenant upon the Commencement Date. Landlord shall substantially
complete the Landlord's Work within thirty (30) days following the date of this
Lease.
3.2 Tenant's Work: Landlord's Contribution. Upon tender of possession of
the Premises, Tenant agrees to proceed with due diligence to perform the work
more particularly described on Exhibit C attached hereto and incorporated herein
by reference (the "Tenant's Work"), all of such work to be performed at Tenant's
expense in a good and workmanlike manner and in substantial compliance with
Exhibit C. Landlord, at no cost to Tenant, will make available to Tenant at
reasonable times Landlord's building engineer who will assist Tenant in
reviewing documents and will provide information with respect to the Building
insofar as the same is necessary for the prosecution of Tenant's Work. All
Tenant's Work shall be performed in accordance with the Rules and Regulations
for Design and Construction of Tenant Work attached hereto as Exhibit D.
Landlord will give Tenant and Tenant's contractors access to the Premises prior
to the completion of Landlord's Work in order that Tenant may commence Tenant's
Work provided Tenant and Tenant's contractors work in harmony with those of
Landlord and do not delay the completion of Landlord's Work. Tenant's entry for
the purpose of performing Tenant's Work shall be subject to all of the terms,
covenants and conditions of this Lease, including the covenant to maintain
insurance, except for the covenant to pay Rent. Landlord will provide to Tenant
during the period of the performance of Tenant's Work electricity, water and
sewer at no charge to Tenant. During such period, Landlord will also provide, at
no charge to Tenant, heating, ventilation and air conditioning ("HVAC") during
normal business hours as long as it does not interfere with the supplying of
HVAC to the other tenants of the Building. Landlord also agrees to reimburse
Tenant for the cost of the Tenant's Work, such reimbursement not to exceed an
amount equal to $5.00 multiplied by the rentable square footage of the Premises.
As used herein, the term "cost of the Tenant's Work" means the actual, bona
fide, direct out-of-pocket costs paid by Tenant to governmental agencies for
building and
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similar permits, to its architect, to its contractors, sub-contractors, and to
its suppliers, in connection with the performance of the Tenant's Work. In order
to receive payment, Tenant shall submit to Landlord an invoice(s), approved for
payment by Tenant, generated by the general contractor, sub-contractor(s),
vendor(s), or suppliers) evidencing all charges incurred to date. Landlord shall
remit payment directly to the general contractor, sub-contractor, or vendor, for
the amount of each invoice presented within 20 days of receipt of the invoice.
Landlord shall only be obligated to disburse amounts up to the total amount of
the Tenant Improvement Allowance. Once such threshold has been reached, Landlord
shall so notify the Tenant, and Tenant shall assume responsibility for all
remaining payments in connection with Tenant's construction. Prior to
commencement of Tenant's Work to the Premises and the Building, Tenant shall
deliver the plans and specifications therefor to Landlord for its written
approval, which approval shall not be unreasonably withheld, conditioned or
delayed. Tenant's final plans and specifications shall replace Exhibit "C" to
the Lease. Landlord shall respond to Tenant's request for approval of Tenant's
plans and specifications within seven (7) days after receipt thereof; the
failure of Landlord to respond within such period shall constitute approval of
such plans and specifications. In the event Landlord shall not approve the plans
and specifications, Landlord shall notify Tenant of its objections thereto.
Landlord and Tenant shall thereafter work cooperatively and in good faith to
reach agreement upon mutually acceptable plans and specifications. Tenant shall
engage its own contractor and/or construction manager subject to Landlord's
approval (which approval shall not be unreasonably withheld, conditioned or
delayed) to construct the Tenant's Work. Tenant shall not be responsible for
Landlord's own costs related to review, construction management or supervision
fees, cost or expenses related to the Initial Alterations. Landlord agrees to
reasonably assist Tenant in obtaining all necessary permits for the Tenants Work
from appropriate governmental authorities. Tenant shall be granted access to the
Premises during the construction of Tenant's Work 24 hours a day, 7 days a week
for as long as such access and construction does not materially interfere with
the business of existing tenants of the Building.
3.3 Term. The term of this Lease shall be for an initial term commencing
on the Lease Commencement Date (the "Commencement Date"). The initial term shall
end as defined in Section 1.10 herein.
3.4 Tenant's Extension Options.
3.4.1 Tenant shall have two (2) five-year options to extend the term of
this Lease for five (5) years each (the "Extension Options"). In the event
Tenant desires to exercise an Extension Option, Tenant shall be required to give
Landlord written notice of its opinion of the Monthly Rent that should be
payable during the term of the particular Extension Option (the "New Monthly
Rental"), at least six (6) months (but not earlier than nine (9) months) prior
to the commencement date of the applicable extension term. Within thirty (30)
days thereafter, Landlord shall provide to Tenant written notice of whether
Landlord agrees with Tenant's opinion of what the New Monthly Rental should be
or, if not, Landlord's opinion of what the New Monthly Rental should be. If
Tenant does not accept Landlord's determination of what the New Monthly Rental
should be, Tenant shall give Landlord written notice of either (i) Tenant's then
opinion of what the New Monthly Rental should be, (ii) that Tenant does not wish
to exercise the Extension Option, or (iii) that the New Monthly Rental shall be
determined by the arbitration procedure provided below. There shall be no limit
on the number of written notices either Tenant or Landlord may deliver to the
other in their efforts to come to an agreement upon the New Monthly Rental that
should apply to the applicable Extension Term, except that Tenant must inform
Landlord, by written notice received by Landlord at least three (3) months prior
to the commencement of the term of the Extension Option in question, whether
Tenant elects to (a) accept Landlord's last determination of New Monthly Rent of
the Lease, (b) not exercise the applicable Extension Option, or (c) exercise the
Extension Option at the New Monthly Rental as determined by the arbitration
procedure provided below. Absent such timely written notification, Tenant shall
be deemed to have elected not to exercise the Extension Option. Time is of the
essence.
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3.4.2 The New Monthly Rental shall be ninety-five percent (95%) of the
fair market monthly rent for the Premises, the determination of New Monthly
Rental shall take into account the then fair market monthly rent for comparable
vacant space in similar buildings within the downtown Baltimore area taking into
account economic terms such as periodic increases in rent during the term and
"pass throughs" of operating expenses and taxes, if any, for space which would
be paid by a willing Tenant to a willing Landlord, neither of whom is compelled
to rent, for a term of five (5) years, including "tenant concessions," if any,
then being offered on comparable vacant space to prospective new tenants. The
term "tenant concessions" includes, without limitation, such inducements as free
rent, free parking, tenant improvement and other cash allowances and
over-standard tenant improvements. The New Monthly Rental shall not reflect the
value of any improvements to the Premises made by Tenant.
3.4.3 If Landlord and Tenant cannot agree on the New Monthly Rental, and
Tenant has provided timely written notice to Landlord of Tenant's desire to have
the issue determined through arbitration, the matter shall be submitted for
decision to a panel of three (3) arbitrators. Landlord and Tenant shall each
appoint one arbitrator who shall by profession be a licensed commercial real
estate broker or an MAI real estate appraiser, and who shall be familiar with
the Building and have been active (over the ten (10) year period ending on the
date of such appointment) in the brokering or appraisal of properties in the
downtown Baltimore area. Each such arbitrator shall be appointed within fifteen
(15) days after Tenant's notice to Landlord of its election to have New Monthly
Rental determined by this arbitration procedure. The two (2) arbitrators so
appointed shall within fifteen (15) days of the date of the appointment of the
last appointed arbitrator agree upon and appoint a third arbitrator who shall be
qualified under the same criteria set forth above for qualification of the
initial two arbitrators. Failing such agreement, either Landlord or Tenant shall
have the right to petition for the appointment of the third arbitrator by the
then Senior Judge of the Circuit Court for Baltimore City. The three arbitrators
shall, within thirty (30) days of the appointment of the third arbitrator,
endeavor to determine the New Monthly Rental. The decision of the majority of
the three arbitrators shall be binding upon Landlord and Tenant. Landlord shall
pay Landlord's cost of Landlord's arbitrator, Tenant shall pay Tenant's cost of
Tenant's arbitrator and Landlord and Tenant shall equally pay for the cost of
the third arbitrator.
3.4.4 If the arbitrators have not determined New Monthly Rental prior to
the beginning of the term of the Extension Option in question, Tenant shall pay
the Monthly Rental rate previously in effect under the Lease, until such time as
the arbitrators determine the New Monthly Rental. If the arbitration procedure
results in a higher Monthly Rental, Tenant will make up the difference with the
next Monthly Rental payment due. If the arbitration procedure results in a lower
Monthly Rental, Tenant shall receive a credit against its next Monthly Rental,
and any succeeding Monthly Rental payments, if necessary, in an amount equal to
the overpayment.
3.4.5 The Extension Option shall be personal to Tenant or Tenant's
assignee or sublessee and may not be exercised or be assigned, voluntarily or
involuntarily, by or to any person or entity other than Tenant or Tenant's
assignee or sublessee, nor shall the Extension Option be assignable separate and
apart from this Lease.
3.4.6 Tenant shall not have the right to exercise an Extension Option
during the continuance of any Event of Default. The period of time within which
the Extension Option may be exercised shall not be extended or enlarged by
reason of Tenant's inability to exercise such Extension Option prior to the cure
of the Event of Default. All rights of Tenant to any Extension Option shall
terminate and be of no further force or effect even after Tenant's due and
timely exercise thereof, if, after such exercise, but prior to the commencement
date of the term of the Extension Option in question, an Event of Default shall
occur. Landlord's waiver of its right to terminate this Lease due to Tenant's
default in any instance shall not be deemed a waiver of the foregoing conditions
precedent and conditions subsequent to the exercise of any Extension Option.
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3.4.8 All provisions of this Lease shall apply to each extension term
except for the Monthly Rent which shall be determined in accordance with the
above procedures.
3.5 Right of First Refusal.
(a) After the 12th month of this Lease and provided no Event of Default
exists under this Lease on the date such right is exercised or on the date
Tenant has the right to enter into occupancy of space located on the fifth floor
of the Building (the "Contiguous Space"), indicated on the attached Exhibit "H".
Tenant shall have a right of first refusal exercisable during the term of this
Lease, to lease all or part of the Contiguous Space.
(b) Upon the receipt of Landlord from a third party of a bona fide
letter of intent to lease all or part of the Contiguous Space, Landlord shall
notify Tenant in writing (the "Third Party Notice") of the lease terms therein
contained. Tenant shall respond to the Landlord in writing within seven (7)
business days of the receipt of the Third Party Notice indicating its intent or
lack of intent to exercise the rights under this paragraph. Tenant's failure to
notify Landlord within the 7-day period set forth above will entitle Landlord to
thereafter lease the Contiguous Space to such third party upon the terms and
conditions identified in the Third Party Notice.
(c) If Tenant exercises its right of first refusal pursuant to this
paragraph, Tenant shall lease the Contiguous Space pursuant to the terms of the
Third Party Notice including the rentable square feet indicated within the Third
Party Notice.
(d) The amendment to this Lease providing for the lease of the
Contiguous Space shall be executed by Landlord and Tenant within ten (10)
business days of the receipt by Landlord from Tenant of Tenant's notice of
Tenant's intent to lease the Contiguous Space.
4 RENT
4.1 Payment of Rent. From and after the 180th day after the Commencement
Date, Tenant shall pay the Monthly Rental, without any prior demand therefor and
without any deduction or offset whatsoever, in lawful money of the United States
of America, to Landlord on the first day of each calendar month during the term
of this Lease as rent for the Premises for such month. Tenant shall make
payments of rent and other expenses to Landlord at the Building Manager's office
at the Building or at other such address as Landlord may from time to time
request in writing. If the term of this Lease commences other than on the first
day of a month or ends other than on the last day of a month, the rent for a
partial month shall be prorated on a thirty (30) day month, based on the number
of days in such month that this Lease is in effect.
4.2 Monthly Rental. The monthly rental payable during the initial Term
of this Lease shall be as follows ("lease year" shall be defined as each twelve
(12) month period commencing 180 days after the Commencement Date):
1st lease year: 1/12 of the product obtained by multiplying the rentable
area of the Premises by $11.50
2nd lease year: 1/12 of the product obtained by multiplying the rentable
area of the Premises by $11.85
3rd lease year: 1/12 of the product obtained by multiplying the rentable
area of the Premises by $12.20
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4th lease year: 1/12 of the product obtained by multiplying the rentable
area of the Premises by $12.57
5th lease year: 1/12 of the product obtained by multiplying the rentable
area of the Premises by $12.94
6th lease year: 1/12 of the product obtained by multiplying the rentable
area of the Premises by $13.33
7th lease year: 1/12 of the product obtained by multiplying the rentable
area of the Premises by $13.73
8th lease year: 1/12 of the product obtained by multiplying the rentable
area of the Premises by $14.14
9th lease year: 1/12 of the product obtained by multiplying the rentable
area of the Premises by $14.57
10th lease year: 1/12 of the product obtained by multiplying the
rentable area of the Premises by $15.00
The monthly rental payable during each extension Term shall be determined
as provided in Section 3.4 above.
5. OPERATING EXPENSES.
5.1 Payment of Operating Expenses. As used in this Lease, "Base Year
Operating Expenses" shall mean the Operating Expenses for the Building for the
Calendar Year 1999. Beginning on January 1, 2000 and continuing throughout the
remaining term of this Lease, Tenant shall pay to Landlord Tenant's Percentage
of any increase in the Operating Expenses for the Building over Base Year
Operating Expenses as provided in this Section 5.1. Prior to January 1, 2000,
Landlord shall deliver to Tenant an estimate of the amount by which Operating
Expenses for the calendar year 2000 will exceed Base Year Operating Expenses. By
the end of each calendar year thereafter during the term of this Lease, Landlord
shall deliver to Tenant an estimate of the excess of Operating Expenses for the
following calendar year over the Base Year Operating Expenses. Tenant shall pay
to Landlord on January 1, 2000 and on the first day of each month thereafter
during the term of this Lease an amount equal to Tenant's Percentage as set
forth in Section 1.12 times the average monthly Operating Expense for such year
that are in excess of Base Year Operating Expenses as estimated by Landlord.
Within one hundred twenty (120) days following the end of 1999 and of each
calendar year thereafter during the term of this Lease, Landlord shall deliver
to Tenant a statement of the actual Operating Expenses for such calendar year.
If the amount of Tenant's Percentage times the excess of the actual Operating
Expenses for such year over Base Year Operating Expenses exceeds the amount paid
by Tenant to Landlord with respect to Operating Expenses for such year, Tenant
shall pay such excess to Landlord within thirty (30) days of delivery to Tenant
of the statement of the Operating Expenses for such year. If the amounts paid by
Tenant to Landlord with respect to Operating Expenses for such year exceed the
amount of Tenant's Percentage times the excess of the actual Operating Expenses
for such year over Base Year Operating Expenses, such excess shall be credited
against the amounts due from Tenant thereafter pursuant to this Section 5.1, or,
if this Lease has terminated, Landlord shall promptly pay such excess to Tenant,
but in no event later than thirty (30) days. If the term of this Lease ends
other than on the last day of a calendar year, the amount of the excess of
Operating Expenses for such year over Base Year Operating Expenses shall be
prorated based on the actual number of days in such year that this Lease was in
effect, using a 360-day year, and Tenant shall be obligated to pay to Landlord
only the amount of the Tenant's Percentage times that portion of the excess
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for such year that this Lease was in effect. Any delay by Landlord in delivering
any estimate or statement pursuant to this Section shall not relieve Tenant of
its obligations pursuant to this Section except that Tenant shall not be
obligated to make any payments based on such estimate or statement until thirty
(30) days after receipt of such estimate or statement.
Tenant, and its agents, and employees shall have two hundred seventy
(270) days after receiving the statement of actual Operating Expenses to object
to such statement, although this period does not relieve Tenant's obligation to
pay on a timely basis. The books and records shall be kept in accord with
generally accepted accounting principles consistently applied. If Tenant
disputes the accuracy of Landlord's statement, Tenant shall still pay the amount
shown owing, pending resolution of the matter by agreement of the parties or, in
the absence of agreement, by a court of law. Tenant may recover any overpayment
of Operating Expenses (plus interest at 8% per year or the maximum then allowed
by applicable law, whichever is less), because of errors in the statement,
books, or records of Landlord. If Tenant does not give Landlord notice that
Tenant disputes Landlord's calculation of Operating Expenses within the 270-day
period, then Tenant shall be deemed to have accepted as final the amount shown
owing on the statement.
If Landlord and Tenant are unable to agree as to any disputed item,
Tenant may, at its sole cost and expense, audit on its own (engage an
independent certified public accounting firm to audit) Landlord's records
relating to the disputed items, which audit shall be scheduled promptly at the
reasonable convenience of both Landlord and Tenant. Such audit shall take place
in Landlord's offices. If the results of such audit indicate that the aggregate
amount of the disputed items is incorrect, then Landlord shall refund the
discrepancy, and if the amount of the discrepancy is more than five percent (5%)
and at least $1,000, then Landlord shall pay for the reasonable costs of such
audit but in no event shall Landlord be obligated to pay more than $2,500 for
such audit.
5.2 Definition of Operating Expenses.
(a) "Operating Expenses" shall be determined on an accrual basis for each
calendar year by taking into account on a consistent basis all costs of
operation, management, maintenance and repairs of the Building, whether
undertaken by Landlord pursuant to the specific provisions of this Lease or
undertaken by Landlord in the exercise of its reasonable discretion, including,
but not limited to, the costs of cleaning, utilities, air conditioning, plumbing
to the common areas, casualty and liability insurance, Property Taxes and
Assessments, accounting and a market management fee. Operating Expenses shall
also include an amount necessary to amortize the cost of capital improvements
installed to reduce Operating Expenses the cost of replacement of carpeting,
draperies and wall coverings for the common areas of the Building and the cost
of improvements required by governmental agencies, all amortized over the useful
life of such items, in accordance with generally accepted accounting principles,
together with interest at the rate of ten percent (10%) per annum on the
unamortized balance of such costs; provided, however, that in no event shall
such interest rate exceed the maximum rate permitted by law if such amortization
of such costs or expenses is deemed a loan. Operating Expenses shall not include
the costs of tenant improvements, leasing commissions, depreciation, interest,
ground rent and administrative costs not specifically incurred in the operation,
management, maintenance and repair of the Building. Landlord shall fairly
allocate to other tenants of the Building expenses of a type described in
Sections 5.4 and 5.5 and Operating Expenses shall not include any such expenses
which are charged separately to tenants of the Building or others. Operating
Expenses shall not include any expense to the extent paid or reimbursed from
insurance proceeds but Operating Expenses shall include any deductible amount
excluded from insurance coverage. Operating Expenses shall not include costs for
providing services to any area of the roof, Common Area or storage areas of the
Building which may be occupied by any tenant for office or other purposes to the
extent such costs would not have been incurred if such area were used as
unserviced storage or building service area; however, if the cost of providing
any extra service to such area cannot be easily determined, then the cost of
such service shall be determined by
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allocating the costs of such service for the entire Building in the proportion
that the rentable area of such area bears to the rentable area of the Building
including such area. If for any period the Building is not fully occupied,
including the Base Year, if any occupant of the Building is provided with
services or utilities more or less than the service or utilities customarily
provided for tenants of general office space in the Building, or if any services
or utilities are separately charged to tenants of the Building or others,
Operating Expenses shall be adjusted by Landlord so that Tenant's Percentage of
the Operating Expenses is the amount which it would have been if the Building
were 100% occupied by tenants using services and utilities customarily provided
for general office use.
(b) Operating Expenses for the Building shall not include costs of
providing services (such as but not limited to janitorial service) to the Office
Space portion of the Building which are not generally provided to the Retail
Space portion of the Building, but shall include the costs of such services
provided to Common Areas of the Building. Operating Expenses for the Building
shall not include costs of providing services, if any, to the Retail Space
portion of the Building which are not generally provided to the Office Space
portion of the Building. For so long as elevators serve only the Office Space
portion of the Building, Operating Expenses for the Building shall not include
the costs of maintenance and repair or elevators nor for maintenance and repair
of any elevators or escalators for the exclusive use of any one tenant.
Operating Expenses for the Building shall not include the costs of providing
electricity to any tenant's premises within the Building (which such electricity
shall be separately metered or submetered), but shall include costs of providing
electricity to operate all mechanical systems of the Building including systems
which serve any tenant's premises within the Building. Operating Expenses shall
not include: (i) capital expenditures or costs of capital improvements except
those which are made for the purpose of reducing Operating Expenses, or made to
comply with any governmental laws, rules or regulations hereafter enacted, in
either event depreciated over the longest useful life; (ii) costs incurred in
connection with the original construction of the Building or Premises and
accompanying site improvements or in connection with any major change in the
Building or Premises; (iii) interest, principal, late charges, default fees,
prepayment penalties or premiums on any debt owed by Landlord, including any
mortgage debt: (iv) costs of correcting defects in or inadequacy of the initial
design or construction of the Building or Premises; (v) expenses resulting from
the negligence of Landlord, its agents, servants or employees, or another
tenant; (vi) legal fees, space planners' fees, real estate brokers' leasing
commissions and advertising expenses incurred in connection with the development
or leasing of the Building or Premises; (vii) costs for which Landlord is
reimbursed by any tenant or occupant of the Building or by insurance by its
carrier or any tenant's carrier or by anyone else; (viii) any bad debt loss,
rent loss, or reserves for bad debts or rent loss; (ix) expenses of services
provided other tenants in the Building which are not provided to Tenant or for
which Tenant separately pays or is separately charged, including HVAC and
electrical service; (x) costs associated with the operation of the business of
the Landlord, as the same are distinguished from the costs of operation of the
Premises or Building, including company accounting and legal matters, costs of
defending any lawsuits wit any mortgagee, costs of selling, syndicating,
financing, mortgaging or hypothecating any of Landlord's interest in the
Premises or Building, costs (including attorney fees and costs of settlement
judgments and payments in lieu thereof) arising from claims, disputes or
potential disputes in connection with potential or actual claims, litigation or
arbitration respecting Landlord and/or the Building; (xi) the wages and benefits
of any on-site employees above the level of Building manager; (xii) the wages
and benefits of any employee who does not devote substantially all of his or her
time to the Building unless such wages and benefits are allocated based on a
prorated share of the management company's portfolio which fairly reflects the
actual time spent operating and managing the Building vis-a-vis time spent on
matters unrelated to operating and managing the Building; (xiii) amounts paid as
ground rental by Landlord; (xiv) costs, including permit, license and inspection
costs, incurred with respect to the installation of tenant improvements made for
tenants in the Building or incurred in renovating or otherwise improving,
decorating, painting or redecorating vacant space for tenants or other occupants
of the Building; (xv) costs paid to Landlord or to affiliates of Landlord for
services in the Building, including management fees, to the extent the same
exceed or would exceed the costs for such services if rendered by unaffiliated
third parties on a competitive basis; (xvi)
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costs for which Landlord has been compensated by a management fee; (xvii) costs
incurred by Landlord due to the violation by Landlord or any tenant of the terms
and conditions of any lease of space in the Building; (xviii) costs not billed
to Tenant within twenty-four (24) months of when incurred, and (xix) costs for
sculpture, painting, or other objects of art.
(c) For each calendar year, Operating Expenses shall be determined for
services provided to the Office Space portion of the Building and not generally
provided to the Retail Space portion of the Building including, but not limited
to, janitorial services and maintenance and repair of elevators serving only the
Office Space portion of the Building.
(d) For each calendar year, Operating Expenses shall be determined for
services, if any, provided to the Retail Space portion of the Building and not
generally provided to the Office Space portion of the Building.
5.3 Definition of Property Taxes. The term "Property Taxes and Assessments"
as used in Section 5.2 shall mean all real and personal property taxes and
assessments, metropolitan charges, sewer rents, ad valorem charges, water rates,
rents and charges, front foot benefit charges, license tax, rental tax,
improvement bonds and other governmental levies imposed on or with respect to
the Building and any property of Landlord or Landlord's agents used principally
in the operation, management, maintenance or repair of the Building, together
with any taxes or assessments imposed in substitution of or as a supplement to
any taxes or assessments previously included within the definition of property
taxes and assessments but excluding any federal, state or local income,
franchise, estate or inheritance tax, and excluding any tax of a type allocated
to Tenant pursuant to Section 5.4.
5.4 Taxes Charged to Tenant. To the extent that an allocation of such taxes
allocable to such excess can be fairly made, Tenant shall pay to Landlord the
amount of any taxes and assessments which accrue during the term of this Lease,
based upon the value of tenant improvements in the Premises in excess of the
value of tenant improvements conforming to Landlord's "Building Standard"
improvements. Pursuant to Section 5.2 et seq. Tenant shall also pay to Landlord,
concurrently with the rent and other payments, the amount of any taxes and
assessments which accrue during the term of this Lease and which are based upon
the rent or other payments by Tenant relating to the Premises or upon the area
or use of the Premises including any gross income tax or excise tax but in each
case excluding federal, state or local income tax or franchise tax. At
Landlord's election, Tenant shall pay such taxes and assessments ten (10) days
prior to the date such taxes and assessments are due or shall pay a monthly
impound in an amount sufficient to accumulate sufficient funds to pay such taxes
and assessments when due. Landlord shall apply all amounts received from Tenant
pursuant to this Section in payment of the taxes and assessments described in
this Section. The amounts by which any refunds relating to such taxes and
assessments payable by Tenant and any payment by Tenant to Landlord pursuant to
this Section exceed the amounts actually paid by Landlord shall be refunded
promptly, not to exceed thirty (30) days, to Tenant if Tenant is otherwise in
compliance with its obligations pursuant to this Lease.
5.5 Additional Expenses Payable by Tenant.
(a) Tenant shall pay the cost of all electricity used in the Premises as
measured by separate meters or submeters for the Premises. Tenant shall pay a
reasonable charge determined by Landlord for any utilities or services required
to be provided by Landlord by reason of any use by Tenant of any utilities or
services in excess of utilities or services customarily provided for general
office use in the Building or by reason of any recurrent use of the Premises at
any time other than the normal business hours of generally recognized business
days and shall also pay any costs reasonably incurred by Landlord to meter or
otherwise measure the amount of such utilities or services used by Tenant. If
the replacement cost of improvements in the Premises in excess of such
replacement cost if only Landlord's "Building Standard" improvements were
installed in the Premises or Tenant's use or the conduct of business on the
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Premises or in the Building, whether or not with Landlord's consent and whether
or not otherwise permitted by this Lease, results in any increase in premiums
for the insurance carried by Landlord with respect to the Building, Tenant shall
pay any such increase in premiums within thirty (30) days after being billed by
Landlord.
(b) For purposes of this Lease the normal business hours of generally
recognized business days are as set forth in Paragraph 3 of the Rules and
Regulations attached as Exhibit "E" of this Lease.
5.6 Tenant's Percentage.
(a) Tenant's Percentage, as set forth in Section 1.12(a) above, is based
on the Area of Premises, as set forth in Section 1.5 above, and the Rentable
Square Footage of the Building, as set forth in Section 1.4(a) above. Tenant's
Percentage, as set forth in Section 1.12(b) if the Premises is located within
the Retail Space portion of the Building or as set forth in Section 1.12(c) if
the Premises is located within the Office Space portion of the Building, is
based on the Area of the Premises and the Rentable Square Footage of the Retail
Space portion of the Building, as set forth in Section 1.4(b) above, or the
Rentable Square Footage of the Office Space portion of the Building, as set
forth in Section 1.4(c) above, as applicable. If the Area of the Premises or the
Rentable Square Footage of the Building or the Rentable Square Footage of the
Retail Space or Office Space (as applicable) change significantly, Tenant's
Percentage(s) shall be adjusted accordingly.
(b) The amount payable by Tenant pursuant to Section 5.1 above
determined pursuant to Section 5.2 above shall be Tenant's Percentage of the
Building as to Operating Expenses of the Building plus Tenant's Percentage of
the Retail Space or Office Space (as applicable) as to Operating Expenses for
services provided to the Office Space or Retail Space portions of the Building
(as applicable).
5.7 Janitorial Service, Electric Service and HVAC. Tenant shall be
responsible for providing, at Tenant's expense, its own janitorial service,
janitorial supplies, restroom supplies, its own electrical service for lighting,
office machines, switchgear and equipment located in the Premises, light fixture
tube and ballast replacement, and all heating, ventilation and air conditioning
("HVAC") services, all of which shall be paid for by Tenant. Accordingly,
Operating Expenses shall not include these services for the Premises but, shall
include the expense of providing janitorial service, electric service and HVAC
services to the Common Areas of the Building.
5.8 Cap on Operating Expense Pass Through. To the extent that the
aggregate amount of the Operating Expenses for any calendar year subsequent to
the calendar year 1999 (other than expenses incurred for the payment of property
taxes, insurance and utilities) exceed one hundred five percent (105%) of the
Operating Expenses (other than expenses incurred for the payment of property
taxes, insurance and utilities) during the prior calendar year (the "Cap") than
Tenant's share of the amount of the excess over the Cap applicable to such year
shall not be passed through to the Tenant.
6. SERVICES AND UTILITIES.
6.1 Services to be Provided by Landlord and Services to be Provided by
Tenant.
(a) Landlord shall, at all times, furnish the Premises with elevator
service and shall furnish water for lavatory and drinking purposes. Landlord
shall not be required to furnish air conditioning, heating, and ventilation to
the Premises, but shall be required to provide such to the Common Areas of the
Building comparable to that of a first-class office building.
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(b) Tenant shall be responsible for providing, at Tenant's expense, its
own janitorial service, restroom supplies, janitorial supplies, electricity for
the lighting, office equipment and other equipment and machinery located within
the Premises. The location for the switchgear for Tenant's direct service is
shown on Exhibit C (Description of Tenant's Work). If direct metering is not
possible electricity will be submetered to the Premises with a direct pass
through of the cost of the electricity without additional fee or xxxx up by
Landlord. Tenant shall pay for replacement of all lighting tubes, ballasts, and
bulbs as required. Tenant shall be responsible for providing, at Tenant's
expense, its own HVAC system to provide air conditioning, heating and
ventilation to the Premises and shall maintain temperatures within the Premises
sufficient to prevent freezing or damage to the Premises or the Building
systems.
6.2 Maintenance and Repair by Landlord. Landlord shall maintain the
Common Areas of the Building in a first-class condition, shall maintain the
plumbing, heating, ventilation, air conditioning, elevator, electrical, and
other mechanical systems of the Building in good working order, shall make
necessary repairs and replacements to the roof and the shell and structural
components of the Building, and shall repair promptly any damage to the Premises
and the Building as provided in Article 10.
6.3 Interruption of Service. Except if arising out of the negligent act
or omission of Landlord, its employees and agents, Landlord shall not be liable
and the Monthly Rental and other payment to Landlord shall not xxxxx for
interruptions to the telephone, plumbing, heating, ventilation, air
conditioning, elevator, electrical, or other mechanical systems or cleaning
services, by reason of accident, emergency, repairs, alterations, improvements,
or shortages or lack of availability of materials or services. At any time
during the term of this Lease, Landlord may conserve any utilities or services
without abatement of rent or other expenses if undertaken by Landlord as
required by any governmental agency. Notwithstanding the foregoing, Tenant shall
receive full reimbursement for rent paid for each day beyond the initial
seventy-two (72) hour period that there occurs an interruption of service that
materially adversely impacts Tenant's operations.
6.4 Tenant Access and Security. Tenant shall, subject to compliance with
Landlord's rules and regulations relating thereto, attached as Exhibit "E", have
access to the Premises, to the loading dock, to the roof to the mechanical and
electrical rooms of the Building and to the Tenant's related equipment within
the Building twenty-four (24) hours per day, seven (7) days per week. Landlord
will provide "on-site" security for the Building twenty-four (24) hours per day,
seven (7) days per week. Tenant shall have the right to install its own security
system within the Premises provided it gives a key, or code, (as appropriate) to
Landlord for access in case of an emergency.
7. USE AND OCCUPANCY BY TENANT.
7.1 Use by Tenant. Tenant shall have the right to occupy and use the
Premises for office and communications purposes including the installation,
operation and maintenance of communication, electronic and optronic equipment
and facilities relating to the transmission of voice, video, data and other
communication signals, a switch facility and customer collocation provisioning
equipment, its specialty equipment identified in Sections 15.19.2 through
15.19.8 and other uses normally related thereto that Landlord approves. Without
limiting the foregoing, but subject to availability, Tenant shall have the
right, at no additional charge or rent by Landlord, to install, operate, repair,
maintain and replace its fiber optic cable and related equipment in horizontal
and vertical shafts, risers and pathways within the Building for the purpose of
providing communication services to other occupants of the Building upon
Landlord's approval of plans and specifications for such work, such approval
shall not be unreasonably withheld, conditioned or delayed. Tenant shall not
permit anything to be done in or about the Premises that would violate any
applicable law or regulation or that would constitute a nuisance to the
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other tenants or occupants of the Building or that would significantly interfere
with the use of any area of the Building other than the Premises.
7.2 Rules and Regulations. Provided the same do no conflict with the
provisions of this Lease, Tenant and its employees, agents, and visitors shall
observe faithfully the Rules and Regulations attached hereto as Exhibit "E" and
made a part hereof, and such other and further reasonable Rules and Regulations
as Landlord may from time to time adopt. Landlord shall not be liable to Tenant
for violation of any Rules and Regulations or the breach of any provision in any
lease by any other tenant or other party in the Building.
8. MAINTENANCE, REPAIRS, AND ALTERATIONS.
8.1 Maintenance and Repair. During the term of this Lease, Tenant shall
take good care of the Premises, the fixtures and building systems therein and
all systems, wherever located, that are installed by Tenant and are in addition
to, or in lieu of, the base building systems. Tenant shall maintain them in good
order, condition, and repair in a quality and class equal to the original work,
ordinary and reasonable wear excepted. During the term of this Lease, Tenant
shall maintain at its own expense all plumbing facilities and the area in which
such plumbing facilities are located within the Premises, except the restrooms
located in the core of the Building, in good order, condition and repair as they
are on the commencement of the term of this Lease, ordinary and reasonable wear
excepted. To the extent that the installation described in Tenant's Work or any
alterations or other installations made by Tenant increase the Landlord's cost
of maintaining and repairing the base building (including the base building
systems) the excess cost, as reasonably determined by Landlord shall be paid by
Tenant to Landlord promptly upon demand therefore.
8.2 Alterations. Tenant shall have the right, at Tenant's expense, to
make nonstructural and structural alterations to the Premises and its facilities
and equipment outside the Premises provided they do not adversely affect the
Building's mechanical or electrical systems or the operation of the Building,
except as otherwise provided under this Lease. In addition, Tenant shall have
the right to make structural alterations should such be necessary so that the
floor area within the Premises can support the following loads: Equipment-150
lbs./sq. ft., Storage Batteries-200 lbs./sq. ft., and Office Use-60 lbs./sq. ft.
Tenant shall also have the right to block the interior of the exterior windows
of the Premises. Design plans for any alteration shall be prepared by an
architect reasonably approved by Landlord, and shall be subject to the review
and approval of Landlord, which shall not be unreasonably withheld, conditioned
or delayed. Landlord shall notify Tenant of its approval or disapproval within
seven (7) business days after receipt of the plans for the proposed alteration
and the failure to do so within the 7day period shall be deemed to be an
approval. All design and installations shall be in accordance with the Rules and
Regulations for Design and Construction of Tenant Work attached to this Lease as
Exhibit D. Tenant shall have the right to solicit competitive bids for Tenant's
alteration work by contractors approved by Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed. Tenant shall have the right to
perform alteration work twenty-four (24) hours per day, seven (7) days per week
and shall have access to other common areas as long as Tenant's construction
does not adversely affect the business of other tenants of the Building or their
use and enjoyment thereof. Tenant covenants and agrees that all work done by
Tenant shall be performed in full compliance with all applicable laws, statutes,
rules, orders, ordinances, regulations, and requirements of the federal, state,
and local governments, and all their departments and bureaus, as well as the
requirements of the Association of Fire Underwriters, or similar governing
insurance body. Tenant shall pay all costs for such additions, alterations, and
improvements including any additions, alterations, and improvements to the
Premises required by any governmental agency during the term of this Lease.
Except as otherwise provided in this Lease, all alterations, additions, and
improvements to the Premises shall become part of the realty and belong to
Landlord and, at the end of the term hereof, all alterations, additions and
improvements to the Premises or elsewhere made by Tenant shall, at Landlord's
election, in writing at the time of approval of the same,
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either be removed and the Premises repaired to the extent any damage was caused
by removal or remain on the Premises without compensation of any kind to Tenant,
except that any Trade Fixtures which are installed and paid for by Tenant shall
remain the property of Tenant and may be removed by Tenant during the term of
this Lease provided Tenant repairs any damage to the remaining improvements of
the Premises caused by the removal of such fixtures. Tenant's Trade Fixtures
shall mean Tenant's machinery, HVAC system, telecommunications equipment,
specialized equipment, furniture, antennas, fuel tank, generator, batteries and
other fixtures and equipment of Tenant used in connection with its
telecommunications business. At no time will Tenant's Trade Fixtures be deemed
fixtures or appurtenant to the Building. If so requested by Tenant at the time
approval for an alteration is requested, Landlord will specify in writing which
of the fixtures and equipment will be required to be removed by Tenant upon the
expiration or sooner termination of the term of this Lease; however, Tenant
shall not be required to remove conduits or building standard partitioning.
Tenant shall have the right to remove at any time, and shall, unless Landlord
otherwise agrees, be required to remove at the expiration or sooner termination
of the term of this Lease Tenant's Trade Fixtures.
9. INSURANCE AND INDEMNIFICATION.
9.1 Landlord's Insurance and Waiver. During the term of this Lease,
Landlord shall obtain and keep in full force and effect fire and extended
coverage insurance for the Building and public liability insurance in such
reasonable amounts with such reasonable deductions as would be carried by a
prudent owner of a similar building in the area, or which the first mortgagee of
the Building reasonably deems necessary in connection with the operation of the
Building. Landlord may obtain insurance for the Building and the rents from the
Building against such other perils as Landlord reasonably considers appropriate.
Tenant acknowledges that it will not be a named insured in such policy and that
it has no right to receive any proceeds from any such insurance policies carried
by Landlord.
9.2 Tenant's Insurance. During the entire term of the Lease, Tenant
shall obtain and keep in full force and effect, at its sole cost and expense,
the following insurance: (i) fire and extended coverage insurance, (ii)
comprehensive general liability insurance, including personal injury and
property damage insuring against all claims and liability arising out of the use
or occupancy of the Premises with limits as appropriate to Tenant's use of the
Premises but not less than $2,000,000, (iii) insurance against loss or damage
arising from pollution by oil or other hazardous materials, including clean up
costs. All insurance policies shall provide that Landlord be name as an
additionally insured and they cannot be canceled without twenty (20) days prior
written notice to Landlord and any other person holding an interest in the
Building designated by Landlord in writing to Tenant. Tenant shall deliver
certificates of insurance evidencing such policies to Landlord on request, but
not more than once in any twelve-(12) month period. Tenant may, by written
notice of such election to Landlord, elect to be a self-insurer of its property
such as office furniture, furnishings, equipment, files and supplies, cash,
securities, antiques, art objects, and jewelry. As an alternate to copies of
Tenant's insurance policies, Landlord agrees to accept certificates of such
insurance which are in a form reasonably satisfactory to Landlord.
9.3.1 Indemnification. Tenant hereby waives all claims against
Landlord, its agents and employees for loss, theft, or damage to equipment,
furniture, records, and other property on or about the Premises, for loss or
damage to Tenant's business or death or injury to persons on or about the
Premises or the Building, except to the extent caused by the negligence or
willful misconduct of Landlord, its agents or employees. Tenant shall indemnify
and hold harmless Landlord, its agents and employees from and against any and
all claims and liability for the loss, theft, or damage to property on or about
the Premises except Tenant's indemnification shall not include an
indemnification for liability for the negligence or willful misconduct of
Landlord, its agents or employees. Tenant shall indemnity and hold Landlord, its
agents and employees harmless from and against any and all claims and liability
arising from any breach or default by Tenant in the performance of any
obligation of Tenant under this Lease or arising from the negligence or willful
misconduct of Tenant, its agents, employees, or visitors.
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Landlord shall not be liable to Tenant for any negligence or act of any occupant
or invitee of any owner or occupant or invitee of any owner or occupant of any
property adjoining the Building other than Landlord, its agents and employees.
In case any action, suit or proceeding is brought against Landlord by reason of
any such occurrence, Tenant, upon Landlord's request, will at Tenant's expense
resist and defend such action, suit or proceeding, or cause the same to be
resisted and defended by counsel designated by the insurer whose policy covers
the occurrence or by counsel designated by Tenant and approved by Landlord,
which approval shall not be unreasonably or arbitrarily withheld, conditioned or
delayed. The obligations of the Tenant shall survive any termination of the
Lease.
9.3.2 Indemnification of Tenant. Landlord hereby waives all claims
against Tenant, its agents and employees for loss, theft, or damage to
equipment, furniture, records, and other property on or about the Building, for
loss or damage to Landlord's business or death or injury to persons on or about
the premises or the Building, except tot he extent caused by the negligence or
willful misconduct of Tenant, its agents or employees. Landlord agrees to
indemnify Tenant and hold Tenant harmless from any and all liability, loss, cost
(including reasonably attorneys' fees) or obligation on account of, or arising
out of any loss, including, without limitation, any loss by reason of injury to
person or property, caused by Landlord's or its agents' negligence or willful
misconduct. Landlord shall indemnify an hold Tenant, its agents and employees
harmless from and against any and all claims and liability arising from any
breach or default by Landlord in the performance of any obligation of Landlord
under this Lease or arising from the negligence or willful misconduct of
Landlord, its agents, employees, or visitors. Tenant shall not be liable to
Landlord for any negligence or act of any occupant or invitee of any owner or
occupant of any property adjoining the Building or Premises other than Tenant,
its agents and employees. In case any action, suit or proceeding is brought
against Tenant by reason of any such occurrence, Landlord, upon Tenant's
request, will at Landlord's expense resist and defend such action, suit or
proceeding, or cause the same to be resisted and defended by counsel designated
by the insurer whose policy covers the occurrence or by counsel designated by
Landlord and approved by Tenant, which approval shall not be unreasonably or
arbitrarily withheld, conditioned or delayed. The obligations of the Landlord
shall survive any termination of the Lease.
9.4 Waiver of Subrogation. Without limiting the obligation of Tenant
and Landlord to maintain insurance which permits waiver of subrogation Landlord
and Tenant hereby waive all causes of action and rights of recovery against each
other, against all subtenants or assignees of Tenant, against all other tenants
of the Building and their assignees and sublessees and against any other person
or entity holding an interest in the Building (together, the "Affected
Parties"), and against the agents, officers, and employees of the Affected
Parties, for any loss occurring to the property of the Affected Parties
resulting from any of the perils insured against under any and all casualty
insurance policies in effect at the time of any such loss regardless of cause of
origin of such loss, including the negligence of the Affected Parties or the
agents, officers, or employees of the Affected Parties, to the extent of any
recovery on such policies of insurance, except to the extent that any of such
policies of insurance are invalidated, in whole or part, by said waiver, and so
long as such policies of insurance shall contain (and Landlord and Tenant hereby
agree to use their best efforts to cause such policies to contain), by
endorsement or otherwise, a clause in such form or having substantially the same
effect as the following: " It is hereby stipulated that this insurance shall not
be invalidated in whole or in part should the insured or any of them waive in
writing prior to a loss any or all rights of recovery against any person or
entity for loss occurring to the property described herein." Any self-insurance
by Tenant shall be deemed to include such waiver of subrogation against the
Affected Parties. The obligation of Landlord to use its best efforts to cause
such policies to contain the above-described clause shall not obligate Landlord
to obtain such insurance from insurance companies unacceptable to Landlord nor
to incur premium charges therefor which exceed one hundred ten percent (110%) of
the premium charges for such insurance which does not include such a clause. The
obligation of Tenant to use its best efforts to cause such policies to contain
the above-described clause shall not obligate Tenant to obtain such insurance
for the benefit of the Affected Parties other than Landlord from insurance
companies unacceptable to Tenant nor to incur premium
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charges therefor which exceed one hundred ten percent (110%) of the premium
charges for such insurance which does not include such a clause benefiting the
Affected Parties other than Landlord. Landlord shall promptly notify Tenant in
writing if such policies of Landlord do not contain the above-described clause.
Tenant shall promptly notify Landlord in writing if such policies of Tenant do
not contain the above-described clause, and in such event, Landlord shall
promptly endeavor to notify the other Affected Parties of such event. This
Section 9.4 is not meant to provide a waiver of claims or amount over and above
the insurance limits provided herein.
10. DAMAGE OR DESTRUCTION
10.1 Repair of Damage. If the Premises or the Building are damaged or
destroyed by fire or other casualty covered by the usual form of fire and
extended coverage, Landlord shall commence repair or restoration within sixty
(60) days of such damage or destruction and shall diligently pursue such repair
and restoration to completion unless this Lease is terminated as provided
herein. Landlord shall pay the cost of repair to any damage or destruction of
the Building or the Premises. Tenant shall pay the reasonable cost of repair of
any damage or destruction of the Building caused by the negligence or willful
misconduct of Tenant, its employees, agents, or visitors. Tenant shall vacate
such portion of the Premises as Landlord reasonably requires to enable Landlord
to repair the Premises or Building.
10.2 Abatement. If the Premises are damaged or destroyed by fire or
other casualty not caused by the negligence or willful misconduct of Tenant, its
agents, employees, or visitors, the Rent shall xxxxx until such damage or
destruction is repaired in proportion to the reduction of the area of the
Premises usable by Tenant. Except as specifically provided in this Lease, this
Lease shall not terminate, Tenant shall not be released from any of its
obligations under this Lease, the rent and other expenses payable by Tenant
under this Lease shall not xxxxx and Landlord shall have no liability to Tenant
for any damage or destruction to the Premises or the Building of any
inconvenience or injury to Tenant by reason of any maintenance, repairs,
alterations, decoration, additions, or improvements to the Premises or the
Building.
10.3 Termination by Landlord. If the Building is damaged or destroyed,
Landlord shall have the option to terminate this Lease within sixty (60) days of
such damage if Landlord reasonably determines that the cost of repair to the
Building exceeds thirty percent (30%) of the value of the Building exclusive of
the land prior to such damage. If the Premises are damaged or destroyed,
Landlord shall have the option to terminate the term of this Lease within sixty
(60) days of the date of such damage or destruction if the cost of repair of the
Premises, as reasonably determined by Landlord, exceeds the insurance proceeds
estimated by Landlord to be payable to Landlord for such damage or destruction,
unless the Tenant agrees in writing to pay any cost of repairs of the Premises
in excess of such insurance proceeds within fifteen (15) days of receipt by
Tenant of written notice from Landlord of its intention to terminate this Lease
pursuant to this sentence. If such repairs to the Premises or the Building take
more than one hundred eighty (180) days and adversely affect Tenant's use of the
Premises, then Tenant shall have the option to terminate this Lease upon written
notice to Landlord.
10.4 End of Term. Landlord shall not have any obligation to repair,
reconstruct or restore the Premises during the last twelve (12) months of the
term of this Lease or any extension thereof, as a result of any damage to the
Premises if the cost of any such repair, reconstruction, or restoration as
reasonably estimated by the Landlord exceeds the then Monthly Rental. If
Landlord elects not to repair the Premises of the Building pursuant to this
Section 10.4, Tenant may elect to terminate this Lease within thirty (30) days
of receipt of Landlord's notification of its election not to repair pursuant to
this Section 10.4. If Tenant elects to terminate this Lease as provided in this
Section, this Lease shall terminate thirty (30) days following the election by
Tenant to terminate this Lease. If Tenant does not elect to terminate this Lease
in such thirty (30) day period, the rent and other expenses payable by Tenant
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shall not xxxxx, Landlord may repair the Premises at Tenant's cost and expense,
and Tenant shall deposit with Landlord in advance an amount estimated by
Landlord as the cost of such repair.
11. CONDEMNATION.
11.1 The term of this Lease shall terminate as to the portion of the
Premises taken or condemned by any authority under the power of eminent domain
or transferred by Landlord by agreement with such authority under threat of
condemnation, with or without any condemnation action being instituted, as of
date such authority requests possession of such portion of the Premises. The
Monthly Rental shall be adjusted in the proportion that the square footage of
the portion of the Premises taken bears to the total square footage of the
Premises prior to such taking. Tenant shall not be entitled to any compensation,
allowance, claim, or onset of any kind against the Landlord or any condemning
authority, as damages or otherwise, by reason of being deprived of the Premises
or by the termination of this Lease, except that Tenant shall be entitled to
such portion of any separate award for any improvements to the Premises paid for
by Tenant in an amount not to exceed the unamortized cost of such improvements
with such costs amortized over the term of this Lease, without reference to any
unexercised options, and the cost of Tenant's moving expenses and the loss of
business of Tenant. Any portion of the Building other than the Premises taken by
eminent domain or dedicated to public use shall upon such taking or dedication
be excluded from the area over which Tenant is granted rights hereunder, and
this Lease shall continue in full force and effect without any reduction in
rental. If such taking by eminent domain materially disrupts Tenant's use of the
Premises, Tenant shall have the option to terminate this Lease upon written
notice to Landlord.
12. ASSIGNMENT AND SUBLETTING
12.1 Consent Required. Tenant shall deliver to Landlord, promptly
following execution, an executed copy of any assignment, sublease, or agreement
relating to the Premises, regardless of whether or not such assignment,
sublease, or agreement is permitted by this Lease or requires Landlord's
consent. Except as hereinafter provided Tenant shall not assign, sublease or
otherwise transfer by operation of law or otherwise this Lease or any interest
herein without the prior written consent of Landlord which shall not be
unreasonably withheld, conditioned, or delayed. If Tenant desires at any time to
assign or otherwise transfer this Lease or sublease all or a portion of the
Premises under circumstances where Landlord's consent is required, it shall
first notify Landlord of its desire to do so and shall submit in writing to
Landlord: (i) the name of the proposed assignee or sublessee, (ii) the nature of
the proposed assignee's or sublessee's business to be carried on in the
Premises, (iii) a copy of the proposed assignment or sublease and any other
agreements to be entered into concurrently with such assignment or sublease, and
(iv) such financial and other information as Landlord may reasonably request
concerning the proposed assignee or sublessee. Landlord may condition its
consent to any assignment or sublease on the execution by such assignee or
sublessee of a written assumption by such assignee or sublessee of the
obligations of Tenant under this Lease. Tenant shall pay Landlord's reasonable
direct out-of-pocket expenses in reviewing such proposed assignment or sublease
not to exceed $1,000. Landlord shall respond to Tenant's request to assign or
sublease this Lease in a timely manner not to exceed fifteen (15) days. This
Lease may not be assigned or sublet without complying with the provisions of
this Section in reliance on any law relating to bankruptcy or debtor's rights
generally unless adequate assurance of future performance is provided Landlord
including adequate assurance of the source of rent and other expenses due under
this Lease for the entire term of this Lease and unless the assignee or
sublessee and the proposed use of the Premises by the assignee or sublessee are
consistent with the type of other tenants in the Building and the use by such
tenants of their Premises. Without sharing any rents, Tenant shall have the
right to utilize portions of the Premises for the colocation of equipment of its
customers (including, but not limited to other telecommunications carriers,
internet service providers, and vendors), it being agreed that such colocation
arrangement does not constitute an assignment or subleasing of the Premises. A
collocation arrangement is an arrangement
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whereby an entity other than the Tenant places equipment and facilities within
the Premises for use in the provision of telecommunications or information
services. Tenant shall be solely responsible for such equipment including any
loss or damage thereto. Notwithstanding the foregoing, Landlord's consent shall
not be required and Tenant shall not be required to share any excess rent to the
following: (i) an assignment of this Lease pursuant to a merger of Tenant into
another entity, (ii) an assignment of this Lease pursuant to a consolidation of
Tenant with another entity, (iii) an assignment of this Lease pursuant to a sale
of all or substantially all of the assets of Tenant or (iv) an assignment or
sublease to an entity that controls Tenant, is controlled by Tenant or is
controlled by an entity that also controls Tenant. Landlord's consent shall not
be considered unreasonably withheld if (i) the proposed subtenant's financial
responsibility does not meet the same criteria, Landlord is then using, to
select comparable Building tenants, (ii) the proposed assignee refuses to assume
the obligations of the Tenant under the Lease, (iii) at the time the request is
made, Tenant is in default under this Lease beyond any applicable cure period
(iv) the assignee or sublessee is an agency of a local, state or federal
government or (v) the assignee or sublessee is engaged in a business that
adversely affects the reputation of the Building or the other tenants use or
enjoyment of the Building. Notwithstanding the foregoing, Tenant shall be
permitted to assign this Lease to an affiliate without Landlord's consent.
"Affiliate means any partnership, corporation or other entity in which Tenant
owns a twenty percent (20%) or greater equity interest or any entity
controlling, controlled by or under common control with Tenant after applying
the attribution rules of Section 318 of the Internal Revenue Code.
12.2 Prohibitions. Any sale, assignment, encumbrance or other transfer
of this Lease and any subleasing or occupation of the Premises which does not
comply with the provisions of this Section shall be void and shall be a default
under this Lease.
12.3 Payments to Landlord. Except as provided in this Lease, Tenant
shall pay to Landlord promptly following receipt fifty percent (50%) of the
amount by which all sublease rental and other payments received by Tenant from
any subtenant exceeds the total of the rental or other amounts payable by Tenant
pursuant to Section 4 for the portion of the Premises subleased with the rental
or other amounts payable by Tenant for the Premises allocated on the basis of
square footage. The provisions of this Section shall apply regardless of whether
or not such assignment, subleasing or occupation is made in compliance with the
terms of this Lease. Any payments made to Landlord pursuant to this Section, or
Landlord's acceptance or endorsement thereof, shall not constitute a consent to
any assignment, subleasing or occupation or cure any default under this Lease.
12.4 No Release. Any sale, assignment, encumbrance, subleasing,
occupation or other transfer shall not release Tenant from any of Tenant's
obligations hereunder or if the Landlord's consent is given be deemed to be a
consent to any subsequent assignment, subleasing or occupation. The collection
or acceptance of rent or other payment by Landlord from any person other than
Tenant shall not be deemed the acceptance of any assignee or subtenant as the
Tenant hereunder or a release of Tenant from any obligation under this Lease. If
any assignee, sublessee or successor of Tenant defaults in the performance of
any obligation under this Lease, Landlord may proceed directly against Tenant
without the necessity of exhausting any remedies against such assignee,
sublessees or successors.
12.5 Additional Tenant Rights. Landlord acknowledges and agrees that,
notwithstanding anything to the contrary contained in this Lease:
(a) Tenant shall be permitted to pledge, mortgage, hypothecate or
otherwise xxxxx x xxxx, security interest or collateral assignment (whether
pursuant to a security agreement, deed of trust, collateral assignment, mortgage
or other instrument) (a "Lien") in and to all right, title and interest of
Tenant in and to this Lease, including, without limitation, the right to occupy
the Premises pursuant to the terms hereof, to Northern Telecom, Inc.
(individually and/or as agent for itself and other lenders) and its successors
and assigns or any refinancing or replacement lender (hereinafter collectively
called
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"Lenders") in connection with certain debt financing to Tenant or to any of its
affiliates as security for such debt financing.
(b) Provided that no default has occurred that is then outstanding,
beyond the applicable cure period therefore (as such cure period may be extended
pursuant to Subsection C below), Lender shall be permitted to foreclose upon any
such Lien (or accept an assignment in lieu of foreclosure) and transfer and
assign all right, title and interest to Tenant in and to this Lease pursuant to
or subsequent to such foreclosure and, in the event of any such foreclosure,
transfer or assignment, and provided (i) Lender or its successor-in-interest
expressly assumes in writing and agrees to perform each of Tenant's covenants,
duties and obligations which will arise and accrue from and after the date of
such foreclosure, transfer or assignment and (ii) if the Lender or
successor-in-interest is an entity other than Northern Telecom, Inc. the same
has been approved by Landlord, which approval shall not be unreasonably
withheld, Landlord agrees that it will recognize Lender of its
successor-in-interest as the successor-in-interest to Tenant under this Lease as
if Lender or its successor-in-interest (as applicable) were Tenant under this
Lease.
(c) Within ten (10) business days after written request by Tenant,
Landlord will execute and deliver in favor of Lender an estoppel certificate or
other instrument in form reasonably acceptable to Landlord and such Lender
pursuant to which Landlord will (i) confirm the existence, validity and binding
effect of this Lease, (ii) confirm that Landlord is the owner and holder of this
Lease, (iii) confirm that, to Landlord's current, actual knowledge, no monetary
default and no other default has occurred under the terms of this Lease (or
specifying any defaults which have occurred, which are continuing and of which
Landlord is currently, actually aware), (iv) agree to provide Lender a copy of
any notice of default delivered to Tenant hereunder, and (v) agree that, prior
to any termination of this Lease as a result of a default of Tenant hereunder,
Landlord will provide written notice of such default to Lender at its principal
office in Richardson, Texas to the attention of Xxxxxxx X. Xxxx and afford
Lender a period of not less than thirty (30) days within which to cure such
default.
(d) Landlord hereby agrees that all property of Tenant now and hereafter
located on the Premises shall be and remain personal property of Tenant
notwithstanding the manner in which such property shall be attached or affixed
to the Premises. Landlord hereby further agrees that, notwithstanding the order
of perfection or priority of any security interest or lien under applicable law,
any security interest or lien for rent or similar charges or other indebtedness,
liabilities or obligations owing to Landlord under or in connection with the
Lease, whether arising by operation of law or otherwise, whether now existing or
hereafter arising, and each and every right which Landlord now has or hereafter
may have, either to levy or distrain upon any property of Tenant or any interest
therein ("Lender's Collateral") or to claim or assert title to Lender's
Collateral, or make any other claim against Lender's Collateral, whether under
the Lease or the laws of the State in which the Premises are located whether by
reason of a default under the Lease or otherwise, expressly is hereby made and
shall be subject and subordinate in every respect to any security interest or
lien of other right, title of interest of Lender in Lender's Collateral, no
matter when acquired. During the term of this Lease and for sixty (60) days
following the termination thereof, Lender and its agents and legal
representatives, without any liability or accountability whatsoever to Landlord
(except for damages, if any, to the Premises caused thereby and the obligation
to pay rental, both as provided hereinbelow), (a) may remove any or all of
Lender's Collateral located at the Premises from the Premises (i) whenever
Lender, in its sole discretion, believes such removal is necessary to protect
Lender's interests in Lender's Collateral or (ii) whenever Lender shall seek to
sell or foreclose upon Lender's Collateral; and (b) shall have access to the
Premises and Lender's Collateral at all times. Landlord grants to Lender a
license to enter onto the Premises and consents and agrees that Lender and/or
its representatives of agents may at any time during the term of this Lease and
for sixty (60) days following the termination thereof, enter onto the Premises
to inspect Lender's Collateral, to take possession of Lender's Collateral and to
remove any or all of Lender's Collateral from the Premises or exhibit for sale
and/or conduct one or more sales of Lender's Collateral on the Premises, and
Landlord will not in any manner hinder, interfere or prevent any of the
foregoing.
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Lender agrees to repair any damage caused by Lender or its agents or
representatives as a direct result of any such removal of Lender's Collateral
from the Premises by Lender or its agents or representatives. During any
possession and occupancy of the Premises by Lender, Lender's obligation to
Landlord shall include only the obligation to pay the rental that accrues during
such period of possession and occupancy if and to the extent that Tenant has not
paid such rental. Lender shall have no obligation to cure any defaults of Tenant
under the Lease, however Landlord shall not be precluded from exercising its
remedies in the event of default. If at any time, from time to time, Landlord
ever comes into possession or control of any proceeds of any of Lender's
Collateral, such proceeds shall be held by Landlord for the benefit of Lender,
to the extent of its interest therein, and the same shall forthwith be paid and
delivered to Lender.
(e) Landlord shall, upon request by Tenant, deliver to Lender a
subordination agreement executed by Landlord consistent with clause (d) and
otherwise in a form reasonably acceptable to Lender and to Landlord.
13. DEFAULT AND REMEDIES.
13.1 Events of Default. The occurrence of any one or more of the
following events shall constitute an Event of Default: (i) the failure by Tenant
to make any payment of rent or any other payments required to be made by Tenant
under this Lease when due if such failure continues for ten (10) days after
written notice by Landlord to Tenant of such failure; (ii) the failure by Tenant
to observe or perform any of the provisions of this Lease to be observed or
performed by the Tenant if such failure continues for a period of thirty (30)
days after written notice by Landlord to Tenant of such failure, or such other
period if this Lease specifically provides a different period for a particular
failure, after written notice by Landlord to Tenant of such failure, provided,
however, that with respect to any failure which cannot reasonably be cured
within thirty (30) days, an Event of Default shall not be considered to have
occurred if Tenant commences to cure such failure within such thirty (30) day
period and continues to proceed diligently with the cure of such failure; (iii)
the making of any general assignment or general arrangement for the benefit of
creditors by Tenant, or the filing by or against Tenant of a petition to have
Tenant adjudged bankrupt or a petition for reorganization or arrangement under
bankruptcy law or law affecting creditor's rights unless, in the case of a
petition filed against Tenant, such petition is dismissed within ninety (90)
days; the appointment of a trustee or a receiver to take possession of the
Premises where possession is not restored to Tenant within thirty (30) days; or
the attachment, execution or other judicial seizure of substantially all of
Tenant's assets located at the Premises or of Tenant's interest in this Lease,
where such seizure is not discharged in thirty (30) days; or (iv) Tenant
transfers or agrees to transfer this Lease or possession of all or any portion
of the Premises without Landlord's prior written consent unless Landlord's
consent is not required per the terms of this Lease.
13.2 Remedies. On the occurrence of an Event of Default, Landlord may
at any time thereafter, with or without notice or demand and without limiting
Landlord in the exercise of a right or remedy, which Landlord may have by reason
of such default or breach, do the following:
(i) Landlord may elect to continue the term of this Lease in full force
and effect and not terminate Tenant's right to possession of the Premises, in
which event, Landlord shall have the right to enforce any rights and remedies
granted by this Lease or by law against Tenant, including, without limitation,
the right to collect when due rental or other sums payable hereunder. Landlord
shall not be deemed to have elected to terminate this Lease unless Landlord
gives Tenant written notice of such election to terminate. Landlord's acts of
maintenance or preservation of the Premises or efforts to relet the Premises
shall not terminate this Lease.
(ii) Landlord may elect by written notice to Tenant to terminate this
Lease at any time after the occurrence of an Event of Default, and in such event
Landlord may, at Landlord's option, declare this Lease and Tenant's right to
possession of the Premises terminated, re-enter the Premises,
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remove Tenant's non-telecommunications related property therefrom and store it
for Tenant's account in a commercially reasonable manner and a location in which
is disclosed in writing to Tenant and at Tenant's expense (but Landlord shall
not be required to effect such removal), all such expenses for removal and
storage shall constitute additional rent due hereunder whether or not this Lease
is terminated, eject all persons from the Premises and recover damages from
Tenant as hereinafter provided. Any such re-entry shall be permitted by Tenant
without hindrance. Landlord shall not thereby be liable in damages for such
re-entry or be guilty of trespass, forcible entry or unlawful detainer for such
re-entry. If Landlord elects to so terminate this Lease and Tenant's right to
possession or if this Lease and Tenant's right to possession are terminated by
operation of law, such termination shall cancel all Tenant's options, if any, to
extend or renew the term of this Lease.
(iii) Landlord may notify any subtenant of the Premises of the existence
of an Event of Default by Tenant in writing and thereafter all rent or other
amounts due from any subtenant of the Premises shall be paid to Landlord and
Landlord shall apply such rent or other amounts in payment of the amounts due
from Tenant under this Lease. The delivery of such notice to any subtenant and
the collection of such rent or other amounts by Landlord shall not terminate
this Lease.
13.3 Damages on Termination. At Landlord's election and upon the
occurrence of an event of default by Tenant, Landlord may recover damages from
Tenant in addition to all other remedies available, but without duplication by
any other means for collection of base rent reserved hereunder, an amount equal
to the present value, discounted by the then current discount rate at the
Federal Reserve Bank of Richmond, of the difference between the rent or other
sums payable by Tenant to Landlord for the term of this Lease after the date of
termination, as if this Lease were still in effect, and the reasonable rental
value of the Premises for such period as proved by Tenant, so long as such
rental value is less than the rental amount set forth in this Lease, or any
renewal thereof. On termination of this Lease by reason of Tenant's breach,
Landlord may also recover as damages from Tenant all of the rent or other sums
payable by Tenant pursuant to this Lease after the date of termination, as if
this Lease were still in effect, until such time as Landlord has re-leased the
entire Premises, reduced by any rent or other payments which Landlord receives
for the use of any portion of the Premises prior to re-leasing the entire
Premises. On termination of this Lease by occurrence of an Event of Default,
Landlord may also recover as damages from Tenant that portion of any leasing
commissions paid or payable by Landlord applicable to the unexpired term of this
Lease and all reasonable costs incurred in re-leasing the Premises including
advertising costs, the costs of refurbishment and alterations of the Premises
and the cost of any concessions which the Landlord gives to re-lease the
Premises. If Landlord re-leases the Premises following a termination by
occurrence of an Event of Default, the rent charged by Landlord on such
re-leasing shall be deemed to be the rental value of the Premises for the
purpose of calculation of the damages which Landlord may recover from Tenant and
Landlord shall use its best efforts to mitigate damages.
13.4 Late Charge. If Tenant fails to make any payment of rent, expenses
or other amounts required of Tenant under this Lease within ten (10) days of the
date such amount is due as set forth in this Lease, then, in addition to any
other amounts recoverable by Landlord hereunder, Tenant shall pay Landlord a
late charge in an amount equal to $0.05 for each dollar past due.
Notwithstanding the foregoing, if Tenant fails, on two (2) separate occasions
within any twelve (12) month period, to make any payment of rent, expenses or
other amounts required of Tenant under this Lease within ten (10) days of the
date each such payment is due, then for the remainder of the Lease Term, Tenant
shall pay a late charge in an amount equal to $0.05 for each dollar past due if
Tenant thereafter fails to pay any payment of rent or other amount required
under this Lease promptly when due. Such late charge shall be due
notwithstanding the fact that no notice is given by Landlord to Tenant of such
failure to pay. The late charge provided in this Section shall be the sole
damages which Landlord may recover from Tenant for the delay by Tenant in making
any payment within ten (10) days from the date such payment is due until thirty
(30) days after the date such payment is due, but this Section shall not limit
Landlord's right to
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recover any other amount due pursuant to this Lease, Landlord's damages
equivalent to the amount of the rent or other payments if this Lease is
terminated, Landlord's damages or costs for Tenant's failure to pay for a period
beyond thirty (30) days from the date such payment is due, Landlord's reasonable
cost and expense in connection with any litigation and Landlord's right to any
other remedy such as terminating this Lease, recovering possession of the
Premises or injunctive relief, which remedies shall be governed by Sections 13.2
and 13.3 of this Lease.
13.5 Past Due Obligations. All amounts which Tenant is obligated to pay
Landlord pursuant to this Lease or when due shall bear interest at twelve (12%)
per annum from the due date until paid, unless otherwise specifically provided
herein. If a late charge is due with respect to such amount pursuant to Section
13.4, such interest shall commence to accrue thirty (30) days following the date
such amount is due. The payment of such interest shall not excuse or cure any
default by Tenant under this Lease.
13.6 Non-Exclusive Remedies. The remedies of Landlord set forth in this
Section 13 shall not be exclusive, but shall be cumulative and in addition to
all rights and remedies now or hereafter provided or allowed by law or equity,
including, but not limited to, the right of Landlord to seek and obtain an
injunction and the right of Landlord to damages in addition to those specified
herein, except that the provisions of Section 13.4 shall limit Landlord's right
to damages as specified therein. Tenant hereby expressly waives any and all
rights of redemption granted by or under any present or future law if Tenant is
evicted or dispossessed for any cause or if Landlord obtains possession of the
Premises by reason of the breach by Tenant of any of its obligations under this
Lease. Except as provided in this Lease, either party hereby expressly any right
which either party may have to a jury trial in connection with any such legal
proceedings.
13.7 General Landlord Cure Provision. In the event Tenant defaults in
the performance of any of the terms, covenants, or conditions of this Lease, or
fails to comply with any of the laws, statutes, ordinances, rules, orders,
regulations or requirements of any governmental authority, then in such case
Landlord shall have the immediate right, in addition to all rights and remedies
outlined in this Section 13, to cure such default or noncompliance for the
account of and at the cost and expense of Tenant, and the full amount so
expended by Landlord, so long as reasonably incurred, plus interest at the rate
of twelve percent (12%) per annum thereon, shall immediately be due and owing by
Tenant to Landlord as additional rent hereunder.
14. ADDITIONAL RIGHTS OF LANDLORD.
14.1 Entry by Landlord. Landlord and its agents and employees shall
have the right to enter the Premises at all reasonable times, upon twenty-four
(24) hours prior written notice and accompanied by a representative of Tenant,
unless in case of an emergency situation, to examine the same, to make such
maintenance and repairs of the Premises and such maintenance, repairs,
alterations, decorations, additions and improvements to other portions of the
Building as Landlord is required under this Lease and to show the Premises at
reasonable times to prospective tenants during the last six (6) months of the
term of this Lease. Landlord may erect, use and maintain pipes and conduits in
and through the Premises provided such pipes and conduits do not detract from
the appearance of the Premises and do not adversely interfere with Tenant's
operations. Notwithstanding the foregoing, Landlord understands that as a
condition of Tenant's operations, Tenant requires a "dry environment" and that
any pipes or conduits located within the Premises (other than those presently
existing and those that may be located in the telecommunication closets) be free
of any liquids or, if containing liquids, be so designed, located, and installed
as to minimize the likelihood of jeopardizing Tenant's operations. Landlord
shall thus consult with Tenant prior to erecting any pipes which are to contain
liquid and shall coordinate with Tenant to ensure that the erection of such
pipes does not in any way jeopardize Tenant's
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operations. Landlord shall take reasonable precautions to minimize the
disruption to Tenant of any entry to the Premises by Landlord as provided in
this Section.
14.2 Building Planning. Intentionally Omitted
14.3 Transfer by Landlord. Landlord may transfer its interest in the
Premises and this Lease without the consent of Tenant, at any time and from time
to time. The obligations of Landlord pursuant to this Lease shall be binding
upon Landlord and its successors only during their respective period of
ownership except that Landlord and its successors shall be relieved of their
obligation to refund security deposits and other funds to Tenant which they have
received from Tenant or a predecessor Landlord only to the extent they transfer
such amounts to their respective transferees. In addition, Landlord may lease
any portion of the Building to others on such terms and for such purposes as
Landlord considers appropriate and. may terminate or modify leases with others
for any portion of the Building without any obligation to Tenant and without
relieving Tenant of any obligation under this Lease, so long as such actions do
not materially impact Tenant.
14.4 Landlord's Default. In the event Landlord fails to observe and
perform any covenant or obligation required to be observed or performed by
Landlord under the Lease or this Addendum and such failure of performance
continues for a period of thirty (30) days after written notice thereof from
Tenant to Landlord (unless such failure cannot reasonably be cured within such
thirty (30) day period and Landlord shall fail within such period to commence
and diligently pursue the curing of such failure), Tenant may undertake all
reasonable action to cure Landlord's failure of performance and Landlord agrees
to reimburse Tenant for all reasonable sums expended or reasonable obligations
incurred by Tenant in connection therewith (including reasonable attorney's
fees). In the event Landlord is in default of the Lease and in the event of an
emergency situation, Tenant shall have the right, upon reasonable verbal or
written notice to Landlord, to undertake all reasonable action to immediately
cure Landlord's default and Landlord agrees to reimburse Tenant for all
reasonable sums expended or reasonable obligations incurred by Tenant in
connection therewith (including reasonable attorney's fees). Landlord shall not
be liable to Tenant if Landlord is unable to fulfill any of its obligations
under this Lease if Landlord is prevented, delayed or curtailed from so doing by
reason of any cause beyond Landlord's reasonable control. Tenant shall further
be permitted to terminate this Lease without any charge or penalty in the case
of repeated breach of this Lease by Landlord provided Landlord must default at
least twice in any given twelve (12) month period, which is not cured within the
cure period provided in Section 14.4 if the breach has a material adverse effect
upon the Tenant's ability to conduct its business on the Premises, or four (4)
times over the term of the Lease for such termination right to apply. Any notice
to Landlord by Tenant of Landlord's default under this Lease shall also be
concurrently provided by registered or certified mail, to any holder of a
mortgage or similar security instrument covering the Premises, whose address
shall have been furnished to Tenant ("Mortgagee Notice"). The Mortgagee's Notice
shall offer such mortgagee an opportunity to cure the default concurrent with
that of Landlord.
14.5 Subordination. Landlord warrants and represents to Tenant that
there are no underlying leases, mortgages and deeds of trust which presently
affect the Building or any part of the Building. This Lease may, at the option
of Landlord, be subordinate to any ground or underlying leases, mortgages, deeds
of trust or other lien which may hereafter affect the Building or any part
thereof and Tenant will execute and deliver upon the demand of Landlord from
time to time reasonable instruments desired by Landlord, subordinating, in the
manner requested by Landlord, this Lease to such lease, mortgage, deed of trust
or other lien, provided the holder of such lease, mortgage, deed of trust or
lien agrees that in the event of termination of such lease or foreclosure of
such mortgage, deed of trust or lien, any successor to any interest of Landlord
in the Building will not disturb Tenant's possession of the Premises if Tenant
attorns to such successor as Landlord and otherwise performs its obligations
under this Lease. Tenant agrees that Tenant shall attorn to any Landlord under
any ground lease affecting the Building in the event of the termination or
cancellation of such ground lease or to any purchaser upon
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foreclosure or sale pursuant to any lien. Landlord may from time to time grant
or declare such restrictions or covenants as may be reasonably required by
Landlord or adopt and record such parcel maps, subdivision maps or condominium
plans as may be reasonably required by Landlord relating to all or any portion
of the Building and the provisions of all such documents shall be senior to this
Lease and Tenant shall sign any of such documents upon receipt of Landlord
provided such documents do not interfere with the use of the Premises by Tenant
as permitted by this Lease or conflict with the provisions of this Lease. Tenant
acknowledges the right of the holder of any first mortgage or other first
security interest in all or any part of the Building to subordinate its first
mortgage or other first security interest either in whole or in part to this
Lease. Tenant agrees at any time, and from time to time, upon not less than
fifteen (15) days notice, to execute, acknowledge and deliver to such holder the
Tenant's agreement to such subordination in such form as such holder may
reasonably require. Without limiting the generality of the foregoing, the form
of subordination of the first mortgage or other first security interest may
provide that it does not affect, is not applicable to, and expressly excludes
the following: (i) the prior right, claim and lien of the first mortgage or
first security interest in, to and upon any award or other compensation
heretofore or hereafter to be made for any taking by eminent domain of any part
of the Building, and to the right of disposition thereof in accordance with the
provisions of the first mortgage or first security interest; (ii) the prior
right, claim and lien of the first mortgage or first security interest in, to
and upon any proceeds payable under all policies of fire and rent insurance upon
the Building, or any part thereof, and as to the right of disposition thereof in
accordance with the terms of the first mortgage or first security interest; and
(iii) any lien, right, power or interest, if any, which may have arisen or
intervened in the period between the recording of the first mortgage or first
security interest and the execution of this Lease, or any lien or judgment which
may arise at any time under the terms of this Lease.
14.6 Lender's Rights. On receipt of written request from Landlord,
Tenant shall enter into a written agreement with Landlord and any ground lessor
or any holder of any encumbrance on the Building in a form reasonably
satisfactory to such ground lessor or holder which provides, among other things,
as follows: (i) Tenant shall attorn to such ground lessor or encumbrances on
termination of its ground lease or foreclosure of its encumbrance; (ii) without
the written approval of such ground lessor or encumbrances, Tenant shall not
make any payments to Landlord more than thirty (30) days prior to the date such
payment is due pursuant to this Lease, Tenant shall not subordinate its interest
in this Lease to any subsequent ground lease or encumbrance, and Landlord may
not terminate this Lease or modify this Lease and; (iii) any subordination,
termination or modification in violation of such agreement shall be invalid.
Notwithstanding anything contained in this Lease to the contrary, Tenant shall
be obligated to subordinate its interest under the Lease to any ground lessor or
any lien or encumbrance which may hereafter be placed on, against or affecting
the Premises only it; and on the condition that, Landlord shall provide Tenant
with a non-disturbance agreement in favor of Tenant from such ground lessor or
the holder of such or lien or encumbrance in a form reasonably approved by
Tenant. Upon the Commencement Date, there exists no lender or ground lessor of
the Building.
14.7 Estoppel Certificate. Tenant shall upon fifteen (15) days written
notice from Landlord execute, acknowledge and deliver to Landlord a statement in
writing (i) certifying that this Lease is unmodified and in full force and
effect or, if modified, stating the nature of such modifications and certifying
that this Lease as so modified is in full force and effect; (ii) acknowledging
that there are not, to Tenant's knowledge, any uncured defaults on the part of
the Landlord hereunder, or specifying such defaults if any are claimed; (iii)
setting forth the date of commencement of rents and the date of expiration of
the term of this Lease and setting forth any options of Tenant to extend the
term of this Lease, the nature of such options and whether any such options have
been exercised by Tenant; and (iv) stating the amount of security deposit made
by Tenant to Landlord and amount and period covered by any prepayments of rents
or other charges by Tenant. Any such statement may be relied upon by any then
existing or prospective lessor, purchaser or encumbrances of all or any portion
of the real property of which the Premises are a part.
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14.8 Financial Information. From time to time from the date of execution
of this Lease through the term of this Lease, but not more than once per year,
Tenant shall, upon ten (10) days prior written notice from Landlord, provide
Landlord with a current financial statement generated in Tenant's usual course
of business, and such statement shall be prepared in accordance with generally
accepted accounting principles, consistently applied, and if such is the normal
practice of Tenant, shall be audited by an independent certified public
accountant.
15. MISCELLANEOUS.
15.1 Brokers. Tenant represents and warrants to Landlord that it has not
had dealings with any broker or finder other than as listed in Section 1.14
hereof in locating the Premises and that it knows of no other person who is or
might be entitled to a commission, finder's fee or other like payment in
connection herewith and does hereby indemnify and agree to hold Landlord
harmless from and against any and all claims, liabilities and expenses that
Landlord may incur should such representation and warranty be incorrect.
Landlord agrees to indemnify and hold Tenant harmless from any claims or
liability to any broker or other person arising out of or relating to any
agreement by Landlord to pay a brokerage commission, finder's fee or like
payment to such broker or such person relating to the leasing of the Premises;
provided, however, that Landlord shall not be obligated to Tenant for any claims
or liability to any broker or other person with whom Tenant has dealing
concerning the Building whose identity Tenant has failed to disclose to Landlord
as required by this Section 15.1.
15.2 Holding Over. If Tenant, without Landlord's consent, remains in
possession of the Premises or any part thereof after the expiration of the term
hereof such occupancy shall be a tenancy from month-to-month upon all the
provisions of this Lease, except that (a) the Monthly Rental during such tenancy
shall be payable at one hundred fifty (150%) of the Monthly Rental for the last
month of the term, and (b) all options and rights of first refusal, if any,
granted under the term of this Lease shall be terminated and be of no further
effect during such month-to-month tenancy.
15.3 Performance. All payments to be made under this Lease shall be made
without prior legal notice or demand unless otherwise provided herein, in legal
currency of the United States of America. Time is hereby made of the essence of
each and every one and all of the terms, covenants and conditions to be kept,
observed or performed under this Lease.
15.4 Notices. Any notices required or permitted to be given under this
Lease shall be in writing and may be delivered personally or by certified mail
to the Landlord at the address set forth in Section 1.1 and to Tenant at the
address set forth in Section 1.2. A copy of any notice to Landlord shall also be
mailed to XXXXXXX MANAGEMENT COMPANY, 000 XXXXX XXXXXXX XXXXXX, XXXXXXXXX,
XXXXXXXX 00000, and to such other parties as such addresses as Landlord requests
in writing. Any notice given by mail shall be deemed received two (2) business
days following the date such notice and the required copies are mailed as
provided in this Section. Either party may change its address for purposes of
this Section by giving the other party written notice of the new address in the
manner set forth above. Any notice required by this Lease shall be deemed to
constitute the notice required by the laws of the State set forth in Section
1.14 above.
15.5 Merger. There shall be no merger of this Lease or of the leasehold
estate hereby created with the fee estate in the Premises or any part thereof by
reason of the fact that the same person, firm, corporation or other legal entity
may acquire or hold, directly or indirectly, this Lease or the leasehold estate
and the fee estate in the Premises or any interest in such fee estate without
the prior written consent of the holders of any mortgages or similar security
instruments covering the leased Premises.
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15.6 Termination. On termination of the Lease, Tenant shall execute and
deliver to Landlord immediately upon Landlord's request a quitclaim deed in
recordable form transferring to Landlord any interest of Tenant in the Premises.
15.7 Applicable Laws. This Lease shall be governed by and construed in
accordance with the laws of the State set forth in Section 1.14 above.
15.8 Professional Fees. If Tenant or Landlord brings any action for any
damages or other relief against the other or for a declaration or determination
of any matter relating to this Lease, including a suit by Landlord for the
recovery of rent or other payments from Tenant or for possession of the
Premises, the losing party shall pay to the prevailing party a reasonable sum
for attorneys', architects', engineers', brokers' and other professionals' fees
in such suit, and such obligation shall be incurred on commencement of any
action whether or not such action is prosecuted to judgment or final
determination.
15.9 Modification. This Lease and any other written agreements dated as
of the date of this Lease contain all of the terms and conditions agreed upon by
the Landlord and Tenant with respect to the Premises and the Building. All prior
negotiation correspondence and agreements are superseded by this Lease and any
other contemporaneous documents. No officer or employee of any party has any
authority to make any representation or promise not contained in this Lease and
other contemporaneous documents, and each of the parties hereto agrees that it
has not executed this Lease in reliance upon any representation or promise not
set forth in this Lease or such contemporaneous documents. This Lease may not be
modified or changed except by written instrument signed by Landlord and Tenant.
15.10 Relationship of Parties. Neither the method of computation of rent
nor any other provisions contained in this Lease nor any acts of the parties
shall be deemed or construed by the parties or by any third person to create the
relationship of principal and agent or of partnership or of joint venture or of
any association between Landlord and Tenant, other than the relationship of
Landlord and Tenant.
15.11 Waiver and Waiver of Jury Trial. The acceptance of rent or other
payments by Landlord, or the endorsement or statement on any check or any letter
accompanying any check or other payment shall not be deemed an accord or
satisfaction or a waiver of any obligation of Tenant regardless of whether or
not Landlord had knowledge of any breach of such obligation. Failure to insist
on compliance with any of the terms, covenants or conditions hereof shall not be
deemed a waiver of such terms, covenants or conditions nor shall any waiver or
relinquishment of any right or power hereunder, at any one time or more times,
be deemed a waiver or relinquishment of such rights and powers at any other time
or times or under any other circumstance(s). Landlord and Tenant hereby waive
trial by jury in any action or proceeding or counterclaim brought by either
party hereto against the other party on any and every matter, directly or
indirectly, arising out of or with respect to this Lease.
15.12 Partial Invalidity. If any term or provision of this Lease or the
application thereof to any person or circumstances shall to any extent be
invalid or unenforceable the remainder of this Lease or the applications of such
term or provision to persons or circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby, and each term and
provision of this Lease shall be valid and enforced to the fullest extent
permitted by law.
15.13 Interpretations. Any uncertainty or ambiguity existing herein
shall not be interpreted against either party because such party prepared any
portion of this Lease, but shall be interpreted according to the application of
rules of interpretation of contracts generally.
15.14 Successors and Assigns. This Lease shall be binding upon and shall
inure to the benefit of the parties hereto and their respective permitted heirs,
representatives, successors and assigns.
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15.15 Tenant as Partnership. If a partnership or more than one legal
person executes this Lease as Tenant, (i) each partner is jointly and severally
liable for keeping, observing and performing all the terms, covenants,
conditions, provisions and agreements of this Lease to be kept, observed or
performed by Tenant, and (i) the term "Tenant" as used in this Lease shall mean
and include each of them jointly and severally and the act of or notice from, or
notice or refund to, or the signature of, any one or more of them, with respect
to this Lease, including but not limited to, any renewal, extension, expiration,
termination or modification of this Lease, shall be binding upon each and all of
the persons constituting Tenant with the same force and effect as if each and
all of them have so acted or so given or received such notice or refund or so
signed. Termination of Tenant, if a partnership, shall be deemed to be an
assignment jointly to all of the partners, who shall thereafter be subject to
the terms of this Lease is if each and all such former partners had initially
signed this Lease as individuals.
15.16 Tenant as Corporation. If Tenant executes this Lease as a
corporation, then Tenant and the persons executing this Lease on behalf of
Tenant represent and warrant that the individuals executing this Lease on
Tenant's behalf are duly authorized to execute and deliver this Lease on its
behalf in accordance with the By-Laws of Tenant, and that this Lease is binding
upon Tenant in accordance with its terms.
15.17 Recordation. Tenant covenants that it will not, without Landlord's
prior written consent, record this Lease or offer this Lease for recordation. If
at any time, Landlord or any mortgagee of Landlord's interest in the Leased
Premises shall require the recordation of this Lease, such recordation shall be
at Landlord's expense. If at any time Tenant shall require the recordation of
this Lease, such recordation shall be at Tenant's expense. If the recordation of
this Lease shall be required by any valid governmental order or if any
governmental authority having jurisdiction in the matter shall assess and be
entitled to collect transfer taxes or documentary stamp taxes, or both transfer
taxes and documentary stamp taxes on this Lease, Tenant will execute such
acknowledgments as may be necessary to effect such recordation, and pay, upon
request of Landlord, one-half (1/2) of all recording fees, transfer taxes and
documentary stamp taxes payable on or in connection with this Lease or such
recordation.
15.18 Exhibits. All exhibits, riders and schedules, if any, attached
hereto shall be deemed a part of this Lease.
15.19.1. ADA Compliance and Environmental Matters.
(a) Landlord warrants and represents to Tenant that to the best of the
Landlord's knowledge, the base Building (and the Premises saving and excepting
the Tenant's Work) comply with the requirements of all applicable laws, codes
and ordinances, including the Americans With Disabilities Act (the "ADA").
Landlord further warrants and represents to Tenant that to the best of the
Landlord's knowledge (a) any use, storage, treatment, or transportation of
Hazardous Substances (as defined below) which has occurred in or on the Building
prior to the date hereof has been in compliance with all applicable federal,
state, and local laws, regulations, and ordinances, and (b) no release, leak,
discharge, spill, disposal, or emission of Hazardous Substances has occurred in,
on, or under the Building, and the Building and Premises is free of Hazardous
Substances (other than those normally kept by owners and tenants of similar
buildings and used in compliance with applicable Hazardous Substances laws) as
of the date hereof. As used in this Lease, "Hazardous Substances" means any
asbestos and any hazardous or toxic substance, material, or waste that is or
becomes regulated by any local governmental authority, the State of Maryland, or
the United States Government. The term "Hazardous Substance" includes, without
limitation, any material or substance that is (i) designated as a "hazardous
substance" pursuant to Section 311 of the Federal Water Pollution Control Act
(33 U.S.C. Section 1317), as amended and the regulations issued thereunder, (ii)
defined as a "hazardous waste" pursuant to Section 1004 of the Federal Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq. (42 U.S.C. Section
6903), as amended and the
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regulations issued thereunder, or (iii) defined as a "hazardous substance"
pursuant to Section 101 of the Comprehensive Environmental Response,
Compensation and Liability Act, 42 U.S.C. Section 9601 et seq. (42 U.S.C.
Section 9601), as amended and the regulations issued thereunder.
(b) Tenant shall ensure that the Tenant's Work as well as all future
alterations to the Premises made by Tenant complies with all applicable laws,
codes and ordinances, including the ADA. Tenant shall comply with all
environmental laws in its use and operation of the Premises. Except for
batteries and diesel fuel, Tenant shall not cause any Hazardous Substances to be
used, collected, generated, stored, or disposed of on, under, or about, or
transported to or from, the Premises or Building (collectively, the "Hazardous
Substances Activities"), without first giving Landlord written notice of such
Hazardous Substances Activities, and then only in compliance (which shall be at
Tenant's sole cost and expense) with all applicable laws, rules, ordinances,
statutes, regulations, and requirements and using all necessary and appropriate
precautions. Landlord shall not be liable to Tenant for any Hazardous Substances
Activities by Tenant, Tenant's employees, agents, contractors, licensees,
invitees, or guests. Tenant shall indemnify, defend with counsel acceptable to
Landlord, and hold Landlord and its agents and others claiming any interest in
the Premises by, through, or under Landlord, harmless from any claims, losses,
expenses, damages, costs, and liabilities arising out of Tenant's Hazardous
Substances Activities on, under, or about the Premises. Landlord and its agents
and others claiming any interest in the Premises by, through, or under Landlord,
shall not be liable to Tenant regardless of whether Landlord has approved
Tenant's Hazard Substances Activities.
15.19.2 Antennae/Satellite Dish. Subject to local, state and federal
regulations, Tenant will have the non-exclusive right to install on the roof of
the Building for Tenant's use only and at no additional rental cost, satellites,
antennae and other receiving and transmitting equipment, together with
self-supporting communications towers and related equipment provided the area
occupied by the same does not exceed, in the aggregate, 100 square feet, at no
additional rental cost to Tenant. All such installations will be in a good and
workmanlike manner and at Tenant's sole cost and expense and Tenant will
maintain the same in compliance with all local, state and federal laws and
regulations and Landlord's reasonable insurance requirements. Landlord will have
the right to approve all proposed roof installations (including the locations
thereof and the plans and specifications therefore), such approval shall not be
unreasonably withheld, conditioned, or delayed. All conduit locations and
installation methods will be subject to Landlord's prior written approval, such
approval shall not be unreasonably withheld, conditioned, or delayed. Tenant's
equipment shall not interfere with the use or operation of any other satellite
dishes, antennae, lines or equipment installed on the roof of the Building prior
to Tenant's installation.
15.19.3 Conduits and Chases. Conduits and Risers. Subject to local,
state and federal regulations, Tenant shall have the non-exclusive right at no
additional rental cost to install conduits and or piping in designated risers,
shown and designated on the floor plans attached hereto as Exhibit "H" and
incorporated herein by this reference ("Telecommunications Master Plan"). The
designated use for the conduit and the maximum allowable quantities of conduits
permitted within the riser's spaces shall be as follows:
Conduit/Service Quantity Size Conduit/Pipe
Electric (4) 4" C
Generator (4) 4" C
Grounding (2) 2" C
Controls & Alarms (4) 1 1/2" C
Telephone (2) 4" C
GPS Antennae (1) 2" C
HVAC Piping (2) 6" P
Fuel (2) 1" P
Misc. (2) 1 1/2" C/P
Fiber Optics (6) 4" C
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All such installations shall be in a good and workmanlike manner and at Tenant's
sole cost and expense and Tenant shall maintain the same in good condition and
in compliance with all local, state and federal laws and regulations and
landlord's reasonable insurance requirement. Landlord shall have the right to
approve all such proposed installations (including the locations thereof and
plans and specifications therefore) which shall not be unreasonably withheld,
conditioned or delayed. Pull boxes and junction boxes will not be permitted in
the riser spaces. All cables or wires within the riser spaces shall be in
conduit. Tenant shall not interfere with the use or operation of any other lines
and equipment installed in the risers. Provided Tenant obtains all necessary
governmental consents in connection therewith, Tenant shall also have the right
to construct up to two (2) diverse (with as much separation as possible)
telecommunication entrances (up to three (3) 4-inch conduits at each entrance
for a total of six (6)) to the Building. Tenant shall also have the right to
install up to two manholes adjacent to the Building in connection with these
entrances. The construction of these entrances and manholes may include the
removal and replacement of curbing and sidewalks at Tenant's expense. Any
conduit installed by Tenant shall become the property of Landlord upon the
expiration or sooner termination of the Lease term. Subject to Landlord's
approval (i.e., such that same does not adversely impact other Tenant spaces and
business operation) Tenant shall have the right to core drill during business
hours. Other telecommunications providers co-located with or servicing Tenant
shall have the right to use conduit and or riser space allocated to Tenant as
indicated above with no additional rental cost or fee from Landlord. In
addition, Tenant shall not be required to use any riser or cable management
company to provide services, or interconnect, to other portions of the Building.
15.19.4 Battery Installation. Tenant shall have the right at its sole
cost to install in the Premises sealed batteries as an emergency backup for the
operation of Tenant's equipment in the event of primary power failure. Such
installation (including the plans and specifications therefore) shall be subject
to the approval of the Landlord, which approval shall not be unreasonably
withheld, conditioned or delayed. Such installation shall be subject to Building
rules and regulations and shall comply with all local, state and federal laws
and regulations.
15.19.5 Emergency Generator. Tenant shall have the right, at Tenant's
sole cost and at no additional rental cost to Tenant, to install a 750KW/480
volt emergency generator at the location on the roof of the Building shown on
Exhibit F (attached hereto) and a 2,000 gallon fuel tank, or a combination of
tanks which do not exceed a total of 2,000 gallons, at the location in the
Building shown on Exhibit G (attached hereto). All necessary fuel lines and
hook-ups shall be at Tenant's expense at locations reasonably approved by
Landlord. Such installation (including the plans and specifications therefore)
shall be subject to the approval of the Landlord, which approval shall not be
unreasonably withheld, conditioned or delayed and Tenant shall maintain the same
in good condition and in compliance with all local, state and federal laws and
regulations and Landlord's reasonable insurance requirements. Tenant shall have
the right to test the emergency generator as necessary, provided Tenant takes
reasonable steps to minimize any disruption to other tenants of the Building and
at a time approved by the Landlord, which approval shall not be unreasonably
withheld or delayed. Landlord acknowledges that testing on occasion will be
required during normal business hours to account for peak telecommunications
loads. Tenant shall have 24 hour, seven (7) days per week, access to Tenant's
fuel tank area and generator for as long as Tenant adheres to reasonable
Security requirements of the Building.
15.19.6 Electrical Power and Electrical Grounding System. Landlord shall
provide Tenant with 800-amps of electric at 480 volts, 3-phase from the
Building's existing electrical distribution system. Landlord shall identify
Tenant's point of connection on the Building's existing electrical distribution
system, which shall consist of one 800-amp feed connection. Until such time
Tenant is connected to Tenant's permanent 800-amp service, Tenant shall be
permitted to use the existing 200-amp,
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480-volt, 3-phase service within the Premises for construction. Once Tenant is
connected to Tenant's permanent 800-amp service, the temporary 200-amp service
in the Premises will shall not be available to Tenant. Tenant shall also have
the right to install an electrical grounding system at a location and pursuant
to plans and specifications approved by Landlord. All costs associated with the
maintenance of the grounding system shall be borne by Tenant with no additional
fee or markup by Landlord. If Tenant requires additional electrical capacity in
the future beyond the 800-amps, Landlord agrees to use it's best efforts to
accommodate Tenant to connect to the Building's 000-xxxx, 0-xxxxx service
located in the basement at Tenant's expense. In no event shall Landlord be held
liable for the unavailability for Tenant's additional capacity on the Building's
480-volt, 3-phase service. If additional capacity is not available on the
Building's 480-volt service, subject to Landlord's reasonable approval, which
approval shall include the plans and specifications therefore and shall not be
unreasonably withheld, conditioned, or delayed, Tenant shall have the right, at
Tenant's expense to contract directly with the local power company for Tenant's
additional electric requirements or connect to the Building's 13.2Kv electrical
service.
15.19.7 Air Conditioning. Subject to Landlord's reasonable approval,
which approval shall include the plans and specifications therefore and shall
not be unreasonably withheld, conditioned, or delayed, Tenant shall install a
separate HVAC system to the Premises which shall be in lieu of the base building
system currently serving the Premises at no additional rental cost to Tenant.
The condensing units for Tenant's HVAC system shall be installed at the
locations shown on Exhibit F. All costs associated with the operation of
Tenant's HVAC systems shall be borne by Tenant. The installation shall be in a
good and workmanlike manner and Tenant will maintain the same in good condition
and in compliance with all local, state and federal laws and regulations and
Landlord's reasonable insurance requirements. The base building HVAC ductwork
shall be capped and sealed in a good and workmanlike manner. The main trunk
lines including the distribution loop on Tenant's floor for the base building
HVAC system located within the Premises shall not be removed or altered,
however, Tenant may remove the main distribution loop on Tenant's floor provided
Tenant replaces such at the end of the Lease term, or any renewal thereof.
15.19.8 Fire Protection. Subject to Landlord's reasonable approval,
which approval shall include the plans and specifications therefore and shall
not be unreasonably withheld, conditioned, or delayed, Tenant shall have the
right to install, at its sole cost an FM200 fire suppression system that is
independent of the Building's fire suppression system and also a pre-action fire
suppression system that is connected to the Building existing sprinkler system
at no additional cost (both of which must be connected to the Building's five
alarm system). Any system shall comply with all federal, state and local laws
and regulations and Landlord's insurance underwriter requirements (i.e.,
designed to FM standards) and shall not reduce the efficiency or capacity of the
base building fire suppression system. Tenant shall maintain the FM200 system or
pre-action system in good condition, shall provide Landlord with twice yearly
inspection reports, upon Landlord's request, from a sprinkler company approved
by Landlord and shall provide a Landlord maintenance schedule for the system, if
so requested by Landlord, that is satisfactory to Landlord prior to the Rent
Commencement Date of the Lease. Tenant shall perform the scheduled maintenance
of the system at Tenant's expense.
15.19.9 Tenant's Signage. Tenant shall have the right to install
signage, approximately 2' X 10' in dimension, on the upper facade of the 3-story
portion of the Building (subject to applicable building and other codes relating
thereto and to Landlord's approval which shall not be unreasonably withheld,
delayed or conditioned). Tenant shall be listed on the lobby directory and shall
have the right to install signage at the entrance to its Premises, provided the
same has been approved by Landlord as aforesaid.
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15.19.10 Summary of Additional Space Outside of Premises. Landlord has
agreed that Tenant may use space outside of Tenant's Premises for placement of
an emergency generator (500 square feet), placement of HVAC condensing units
(500 square feet), placement of fuel storage (300 square feet), and placement of
antennas, dishes, and other receiving and transmitting equipment (100 square
feet). The approximate total square feet outside the Premises shall be 1,400
square feet. There shall be no rental charge or other fees associated with
Tenant's use of such space. All additional space outside of Tenant's Premises
shall be subject to the terms and conditions of the Lease and shall be Tenant's
responsibility to maintain and repair at Tenant's expense.
15.19.11 Standard of Consent. The terms "approval of Landlord" or
"approval of Property Manager" or words of similar import shall mean that such
approval shall not be unreasonably withheld, conditioned or delayed. The terms
"opinion or judgement of Landlord" or "opinion or judgment of Property Manager"
or words of similar import shall mean that the exercise of such judgement shall
be reasonable.
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IN WITNESS WHEREOF, the parties hereto hereby execute this Lease, as of
the day and year first above written.
LANDLORD:
WITNESS: XXXXXXX ATRIUM LIMITED
PARTNERSHIP, a Maryland Limited Partnership
/s/ Xxxxx X. Xxxxx By: /s/ Illegible
--------------------- -------------------------------------------
Title: Vice President
Date: 2/19/99
-----------------------------------------
TENANT:
NET2000 COMMUNICATIONS
REAL STATE, INC.
/s/ Illegible By: /s/ Xxxxx Xxxx
--------------------- -------------------------------------------
Title: Xxxxx Xxxx
Date: 2/19/99
-----------------------------------------
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NOTICE OF LEASE TERM DATES
DATE: June 1, 1999
TO: Net2000 Communications Real Estate, Inc.
c/o Net2000 Communications, Inc.
0000 Xxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Attn: Legal Department
RE: Lease dated November 1, 1998, between XXXXXXX ATRIUM LIMITED
PARTNERSHIP, "Landlord", and NET2000 COMMUNICATIONS REAL
ESTATE, INC., "Tenant", concerning Xxxxx 0000X, located at
One Market Center, 000 Xxxx Xxxxxxxxx Xxxxxx, Xxxxxxxxx,
Xxxxxxxx 00000.
We wish to advise and/or confirm as follows:
1. That Tenant has possession of the subject Premises and acknowledges
that under the provisions of the subject Lease, the term of said Lease shall
commence as of March 1, 1999, and terminate on August 31, 2009.
2. That in accordance with the subject Lease, the Monthly Rental shall
commence to accrue on September 1, 1999.
3. That in accordance with the subject Lease, the Operating Expenses
commenced to accrue January 1, 2000.
AGREED AND ACCEPTED:
TENANT: LANDLORD:
NET2000 COMMUNICATIONS XXXXXXX ATRIUM LIMITED PARTNERSHIP,
REAL ESTATE, INC. A MARYLAND LIMITED PARTNERSHIP
By: /s/ Xxxxx Xxxxxxxxx By: /s/ Illegible
--------------------------------- ---------------------------------
Title: Vice President HR & Admin Title: Vice President
------------------------------ ------------------------------
WITNESS: WITNESS:
/s/ Xxxxx Xxxxxxx /s/ Xxxxx Xxxxx
---------------------------- ----------------------------
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