EXHIBIT 10.4
LEASE AGREEMENT
to be entered into
between
1111 19/th/ STREET ASSOCIATES LIMITED PARTNERSHIP
and
INTERMEDIA COMMUNICATIONS, INC.
1. Leased Premises................................................................1
2. Term...........................................................................2
3. Use............................................................................3
4. Basic Annual Rent and Rent Commencement Date...................................3
4.1. Definitions...........................................................4
4.2. Rent AdjustmentCCommon Area Expenses, Insurance and Taxes.............6
4.3. Tax Adjustment........................................................7
4.4. Utilities.............................................................7
4.5. Payments..............................................................7
5. Requirements of Law............................................................8
6. Tenant's Improvements..........................................................8
7. Condition of Premises..........................................................9
8. Conduct on Premises...........................................................10
9. Insurance.....................................................................10
10. Mechanics' and Materialmen's Liens and Other Liens............................10
11. Tenant's Failure to Perform...................................................11
12. Loss, Damage, Injury..........................................................11
13. DestructionCFire or Other Casualty............................................11
14. Eminent Domain................................................................12
15. Assignment/Subletting.........................................................12
16. Defaults......................................................................13
17. Acceptance of Leased Premises.................................................16
18. Access to Premises and Change in Services.....................................16
19. Estoppel Certificates.........................................................16
20. Subordination.................................................................16
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21. Attornment....................................................................16
22. Notices.......................................................................16
23. Landlord's Liability..........................................................17
24. Separability, Enforceability..................................................17
25. Captions......................................................................17
26. Recordation...................................................................17
27. Successors and Assigns........................................................17
28. Waiver of Jury Trial..........................................................17
29. Miscellaneous.................................................................18
30. Environmental Assurances......................................................19
(a) Covenants............................................................19
(b) Indemnification......................................................19
(c) Definitions..........................................................20
32. Authority.....................................................................20
33. Force Majeure.................................................................20
34. Real Estate Broker............................................................20
35. Intentionally Deleted.........................................................21
36. Holding Over..................................................................21
37. Equipment.....................................................................21
(a) Antenna..............................................................21
(b) Rooftop Equipment License............................................21
38. Net Lease.....................................................................22
RIDER NO. 1 - Renewal Option...........................................................24
RIDER NO. 2 - Exclusive Right to Negotiate.............................................25
Exhibit A - Leased Premises
Exhibit B - Engineered Site Plan
Exhibit C - Plans and Specifications for Base Building
Exhibit D - Lease Commencement Agreement
Exhibit E - Rules and Regulations
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LEASE AGREEMENT
THIS AGREEMENT OF LEASE is made this 23/rd/ day of July 1999, by and
between ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇ ASSOCIATES LIMITED PARTNERSHIP, a limited partnership
formed under the laws of the District of Columbia (hereinafter referred to as
"Landlord"), and INTERMEDIA COMMUNICATIONS INC., a Delaware corporation
(hereinafter referred to as "Tenant").
WITNESSETH, that the parties hereby covenant, promise and agree as follows:
1. Leased Premises.
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(1) Landlord is the owner of a single-story building (the "Building")
to be constructed on a parcel of land known as ▇▇▇ ▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ (▇▇▇ "▇▇▇▇"), located at ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ in
the Konterra Business Campus (the "Park") in Prince George's County, Maryland
(the "County"). The Building will contain approximately 111,716 gross square
feet. The Land and the Building are more particularly described on Exhibit A
attached hereto incorporated by reference herein and initialed by the parties.
The Land, the Building, the easements and rights appurtenant thereto (including
those established by certain declarations of covenants recorded, or intended to
be recorded, prior hereto among the Land Records of the County), and the
sidewalks, areaways, parking areas, driveways, loading areas, gardens and lawns
surrounding the Building and located on the Land are collectively hereinafter
called "Leased Premises". Landlord does hereby lease unto Tenant, and Tenant
does hereby rent from Landlord, the Leased Premises for the "Lease Term" (as
hereinafter defined).
(2) Landlord will construct the base shell of the Building (the "Base
Building") as depicted on the attached Exhibit B, the "Engineered Site Plan" and
in accordance with the plans and specifications attached hereto as Exhibit C
(collectively, the "Base Building Plans"). Any changes which Tenant desires to
request to be made to the Base Building Plans, such as changes to the roll-up
doors, glass glazing and interior slabs, must be submitted to Landlord for
review and approval by August 3, 1998. Entry feature revisions which Tenant
desires to request to the Base Building Plans, along with permit drawings for
same, must be submitted to Landlord for review and approval in a timely fashion
(as determined by Landlord), so that Landlord may file any necessary revisions
to the building permit for the Building with the applicable governmental
authorities of the County by September 1, 1998. In the event that Landlord is
unable to substantially complete construction of the Base Building by the
estimated commencement date as hereinafter set forth of January 1, 1999 as a
result of the Tenant's failure to meet either or both of the foregoing deadlines
or any other delays attributable to Tenant, then, notwithstanding any language
in this Lease to the contrary, the "Rent Commencement Date", as hereinafter
defined, for all purposes of this Lease, shall be January 1, 1999.
(3) The cost of constructing the Base Building in accordance with the
Base Building Plans will be paid by Landlord. All charges and expenses, which
shall be deemed additional rent, incurred for change orders from the Base
Building Plans shall be paid by Tenant to Landlord in accordance with such
written change order; provided, however, that Tenant shall be responsible only
for the net cost of increases resulting from change orders to the Base Building
Plans and Tenant shall receive credit for the benefit, if any, of net cost
reductions to the Landlord. Landlord shall have no obligation to implement any
change order unless it is in writing and specifies the method and time of
payment. All change orders shall specify in reasonable detail the changes to be
effected and whether such change is expected to affect the estimated
commencement date. Landlord shall have the right to refuse to implement such
change if, given the stage of construction, the proposed alterations cannot
reasonably be incorporated into the construction process. Landlord's overhead,
profit and general conditions for change orders, which shall also be deemed as
additional rent and paid by Tenant, shall be limited to eight percent (8%) of
the cost of the change order.
(4) Tenant shall hire an architect reasonably acceptable to Landlord
to prepare plans and specifications for the finishing of the Leased Premises
(the "TI Plans"). The TI
Plans shall be subject to the prior written approval of Landlord and ▇▇▇▇▇
▇▇▇▇▇▇▇▇ Architects ("Landlord's Architect") which approval shall not be
unreasonably withheld, delayed or conditioned. Such approval must be obtained
prior to Tenant submitting the same to the applicable governmental authorities
of the County for approval. Tenant shall hire a qualified general contractor
approved by Landlord and qualified finish subcontractors approved by Landlord to
finish the Leased Premises in accordance with the TI Plans. Manekin Corporation
will have the right to submit a bid to serve as general contractor. If Tenant
elects to use a general contractor other than Manekin Corporation, then Landlord
and/or Manekin Corporation shall supervise the finishing of the Leased Premises
for which supervision Tenant shall pay to Landlord, or if so designated by
Landlord, to Manekin Corporation, a supervisory fee (the "Fee") equal to the
hourly rate of the supervisory personnel. Landlord shall provide Tenant with
invoice(s) detailing the hourly rate and time involved related to said
supervisory personnel. The construction of the tenant improvements shall be
otherwise in accordance with the provisions of Section 6 below.
(5) All costs incurred for the finishing of the Leased Premises beyond
the cost of construction of the Base Building, shall be borne by Tenant and
Tenant shall indemnify and hold Landlord harmless from same. Tenant agrees that
Tenant shall bear full responsibility for the TI Plans and the Leased Premises
as improved by the TI Plans, as being in compliance with all applicable
requirements of law, including without limitation, the Americans With
Disabilities Act, as amended. Tenant releases Landlord from any claim by Tenant
arising out of the failure of the Leased Premises to be in compliance with all
applicable requirements of law.
2. Term. This Lease shall be for a term of approximately ten (10)
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years (the "Lease Term") commencing on the Commencement Date (as hereinafter
defined) and terminating at 11:59 p.m. of the last day of the tenth full
consecutive lease year thereafter, unless otherwise extended or terminated in
accordance with the provisions hereof. See Rider No. 1 - Renewal Option.
Each respective period of twelve (12) successive calendar months
during the Lease Term or any renewals thereof shall be hereinafter referred to
as the "lease year"; provided, however, the first lease year shall commence on
the Commencement Date and shall terminate on the last day of the twelfth (12th)
full calendar month following the Rent Commencement Date, as hereinafter
defined.
The "Commencement Date" shall be that date on which the work to be
done by Landlord in accordance with Section 1(b) of this Lease shall have been
completed, except for punch-list items scheduled by Landlord and Tenant (which
shall be deemed accomplished when Landlord's architect issues a statement of
substantial completion). Landlord estimates that the Commencement Date will be
approximately January 1, 1999, which date shall hereinafter be referred to as
the "estimated commencement date". Landlord agrees to use its reasonable
efforts to cause the Commencement Date to occur by the estimated commencement
date, subject however to force majeure factors.
Landlord and Tenant further acknowledge that delivery of the Building
will be in two phases. It is anticipated that the initial phase will include
the delivery by Landlord of approximately 69,890 square feet of the Building,
and the second phase will include delivery by Landlord of the balance of the
Building, all by the estimated commencement date of January 1, 1999.
In the event that Landlord shall be unable, by reason of construction
delays or otherwise, to substantially complete construction of the Base Building
by the estimated commencement date, then this Lease shall nevertheless continue
in full force and effect, and Tenant shall have no right to rescind, cancel or
terminate the same if Landlord substantially completes such construction within
sixty (60) days thereafter; provided, however, that in such event the date on
which Landlord substantially completes construction of the Base Building shall
thereafter be deemed the Commencement Date for all purposes of this Lease.
Whether or not Landlord shall substantially complete such construction on the
estimated commencement date, or within such additional sixty-day period, Tenant
agrees that in no event shall Landlord be liable for damages, if any, sustained
by Tenant as a result of Landlord's failure so long as Landlord has acted
diligently and in good faith.
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Should Landlord be unable to substantially complete construction of the Base
Building due solely to its actions by the sixtieth day, Tenant shall have the
right to terminate this Lease by providing Landlord with written notice, within
ten (10) days following the expiration of said (60) day period, subject,
however, to force majeure factors. If the Lease is so terminated, neither party
shall have any further right or obligation hereunder.
Tenant shall have the right to enter the Leased Premises thirty (30)
days prior to the Commencement Date in order to begin construction of the tenant
improvements, provided that such work is done under the general supervision of
Landlord and does not interfere with Landlord's work. Such entry shall be at
Tenant's sole risk and expense. Commencing on the first day of such early
access, Tenant agrees that all the terms and provisions of this Lease shall be
in full force and effect except that Tenant shall have no obligation to pay any
payments due under this Lease during such early access period. Tenant agrees to
indemnify and hold harmless Landlord for any damage or personal injury which may
occur as a result of Tenant's entry into the Leased Premises prior to the
Commencement Date. Tenant shall deliver to Landlord evidence of the insurance
required to be maintained by Tenant pursuant to Section 9 of this Lease prior to
Tenant's entry into the Leased Premises. In the event that Tenant or its
contractors interfere with Landlord's work so that the Commencement Date is
delayed, then the Commencement Date shall be the date that it would have
occurred but for such interference by Tenant.
On the Commencement Date or such later date as Landlord may request,
Tenant shall promptly enter into a supplementary written agreement (the "Lease
Commencement Agreement") in substantially the form attached hereto as "Exhibit
D", or in such other form as Landlord shall prescribe, thereby specifying, among
other matters, the Commencement Date, the Rent Commencement Date, and the date
as of which the Lease Term shall end.
1. Use. Landlord and Tenant expressly agree that the Leased Premises
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shall be used or occupied by Tenant for the following purposes and none other:
to install, operate, and maintain certain telecommunications, internet, and
similar property and equipment for use in connection with Tenant's
telecommunications/internet business, and to provide telecommunications and
internet services to its customers, as well as general office use.
Tenant may, if permitted by law and/or regulation, be permitted to
refer to the Leased Premises, for mailing purposes, by reference to a name other
than the Building's actual street address. Tenant may not include this other
name on its signage without Landlord's consent, which consent shall not be
unreasonably withheld or delayed.
The Real Property will be subject to certain covenants and
restrictions to be developed by Landlord and recorded among the Land Records of
the County (the "Restrictions"). Tenant agrees to be bound by the Restrictions,
so long as the same do not have a material adverse economic effect on Tenant.
2. Basic Annual Rent and Rent Commencement Date. Commencing on the
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Rent Commencement Date, Tenant shall pay to Landlord during the Lease Term
"Basic Annual Rent" in equal monthly installments as set forth below, without
any deductions, recoupments, or set-offs, and without demand, in advance on the
first day of each and every calendar month in each lease year during the Lease
Term; provided, however, that if the Rent Commencement Date should occur on a
day other than the first day of a month, Tenant shall pay on the Rent
Commencement Date for the fractional part of the month in which the Rent
Commencement Date occurs, a prorated amount of one month's rent.
The "Rent Commencement Date" shall be the Commencement Date of this
Lease (which is estimated to be January 1, 1999); provided however, that if the
Commencement Date fails to occur by January 1, 1999 due to delays attributable
to Tenant, then the Rent Commencement Date shall nevertheless be January 1,
1999, all as more particularly set forth in Section l(b) above. In the event
that the Commencement Date fails to occur by January 1, 1999 due to delays
attributable solely to Landlord, subject, however, to force majeure factors,
then the Rent
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Commencement Date will be one (1) day after the Commencement Date for each day
of Landlord's delay, for purposes of providing Tenant with one (1) day free of
the obligation to pay Basic Rent for each day of the delay. By way of example,
if the Commencement Date occurs on January 5, 1999 due to delays attributable
solely to Landlord, then the Rent Commencement Date shall be January 10, 1999.
If alternatively, the Commencement Date occurs on January 5, 1999 due to delays
attributable solely to Tenant, the Rent Commencement Date shall be January 1,
1999. Except for Tenant's termination rights set forth in Section 2 above, the
free rent as aforesaid shall be Tenant's sole remedy for Landlord's failure to
deliver the Leased Premises by the estimated commencement date of January 1,
1999.
Tenant shall pay Basic Annual Rent as follows:
Per Basic Monthly
Square Foot Annual Rent Installment
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1/st/ lease year $ 8.00 $ 867,936.00 $72,328.00
2/nd/ lease year $ 8.24 $ 893,974.08 $74,497.84
3/rd/ lease year $ 8.49 $ 921,097.08 $76,758.09
4/th/ lease year $ 8.74 $ 948,220.08 $79,018.34
5/th/ lease year $ 9.00 $ 976,428.00 $81,369.00
6/th/ lease year $ 9.27 $1,005,720.80 $83,810.07
7/th/ lease year $ 9.55 $1,036,098.60 $86,341.55
8/th/ lease year $ 9.84 $1,067,561.20 $88,963.43
9/th/ lease year $10.13 $1,099,023.90 $91,585.33
10/th/ lease year $10.44 $1,132,656.40 $94,388.03
2.1 Definitions. For purposes of this Lease, the following
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meanings or definitions shall apply:
(1) "Rentable Area of the Leased Premises" shall, for all purposes of
this Lease, be deemed to be the square footage of the Building as determined by
Landlord's architect utilizing the BOMA standard for a single tenant building,
which is hereby agreed to be 108,492 square feet.
(2) The term "Common Area Expenses" shall mean all reasonable and
necessary expenses paid or incurred by Landlord in connection with Landlord's
management of the Real Property, and the management, maintenance, operation and
repair of the exterior areas of the Real Property, including, but not limited
to, (i) keeping the driveways, parking areas, sidewalks and steps free and clear
of ice, snow and debris; (ii) maintaining all grass and landscaping on the Real
Property; (iii) repair of normal wear and tear of the roof and caulking; (iv)
trash removal from dumpsters on the Real Property, if any; (v) monitoring,
repairing and payment of water, sewerage, unmetered or metered sprinkler and
exterior electrical utilities; (vi) management fees not to exceed 2.5% of the
Basic Annual Rent payable by Tenant hereunder; and (vii) all structural repairs
not caused or necessitated by the acts of Tenant or Tenant's equipment. Common
Area Expenses shall exclude, or have deducted from them, as the case may be and
as shall be appropriate:
(1) Any cost or expense related to financing or
refinancing;
(2) Payment on ground leases;
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(3) Repairs or other work occasioned by fire, wind
storm, earthquakes or other casualty or hazard to the extent that Landlord shall
actually receive proceeds from insurance;
(4) Repairs or rebuilding necessitated by a condemnation to
the extent that Landlord has received condemnation proceeds for such repairs or
rebuilding;
(5) Depreciation of the Leased Premises or amortization of
any mortgage;
(6) Charges for Landlord's income tax, franchise tax or
similar taxes on Landlord's business;
(7) Fines, fees and penalties related to Landlord's
obligations under this Lease;
(8) Management fees in excess of 2.5% of the Basic Annual
Rent; and.
(9) Any cost incurred by the Landlord to correct the latent
defects for which it is responsible hereunder.
(3) "Taxes" shall mean any present or future federal, state,
municipal, local and/or any other taxes (including gross receipts or business
license taxes), assessments, levies, benefit charges and/or other governmental
or private impositions (including business park charges and dues), levied,
assessed and/or agreed to be imposed upon the Real Property of which the Leased
Premises are a part or any part or parts of said Real Property, or upon the rent
due and payable hereunder, whether or not now customary or within the
contemplation of the parties hereto and regardless of whether the same shall be
extraordinary or ordinary, general or special, foreseen or unforeseen, or
similar to any of the foregoing but shall not include any inheritance, estate,
succession, income, excise, capital, profits or franchise tax, provided,
however, if at any time during the Lease Term or any extension thereof the
method of taxation prevailing at the commencement of the term shall be altered
or eliminated so as to cause the whole or any part of the items listed in the
first sentence of this subsection (c) to be replaced by a levy, assessment or
imposition, wholly or partly as a capital levy, or otherwise, on the rents or
income (provided the tax on such income is not a tax levied on taxable income
generally) received from the Real Property, wholly or partly in place of an
imposition on or as a substitute for, or an in place of, taxes in the nature of
real estate taxes issued against the Real Property, then the charge to Landlord
resulting from such altered or replacement method of taxation shall be deemed to
be within the definition of "Taxes." All reasonable expenses incurred by
Landlord (including attorneys' fees and costs) in monitoring or contesting any
increase in the assessment of the Real Property shall be included as an item of
Taxes for the purpose of computing additional rent due hereunder.
(4) "Real Property" shall mean the Land, the Building, and all
fixtures, equipment and other improvements in or upon said Land, which have been
provided by Landlord and shall include the sidewalks, areaways, parking areas,
loading areas, gardens and lawns of the Leased Premises.
(5) "Insurance" shall mean all insurance of whatsoever nature kept or
caused to be kept by Landlord, or required by Landlord's lender to be kept, out
of or in connection with Landlord's ownership of the Building and/or the Real
Property, or the equipment, fixtures and other improvements installed and/or
owned by Landlord and used in connection with the Building and/or the Real
Property and/or all alterations, rebuildings, replacements and additions
thereto, insuring the same against loss or damage by fire, vandalism, malicious
mischief, sprinkler leakage (if sprinklered) and such other hazards, casualties,
risks and contingencies now covered by or that may hereafter be considered as
included within, the standard casualty insurance policy, or such other
casualties as Landlord's lender may require. Insurance shall include insurance
for loss of rent arising
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out of any of the occurrences covered by such insurance. Such casualty insurance
shall be carried in an amount at least equal to the Full Insurable Value
thereof. The term "Full Insurable Value" shall mean actual replacement costs of
the Building (exclusive of the costs and excavation, foundations and footings
below the lowest basement floor), or such other amounts as may be required by
Landlord's lender.
(6) The term "Operating Year" shall mean: (i) when used in the
context of Common Area Expenses and Insurance, each respective fiscal year
beginning October 1 during the Lease Term or, at the option of Landlord, such
other fiscal year as Landlord may adopt during the Lease Term and (ii) when used
in the context of Taxes, each respective tax year (i.e., the fiscal year
beginning July 1) during the Lease Term, except that, if the tax year changes to
begin on a date other than July 1, then appropriate adjustments will be made for
any additional rent or credits due as Taxes under this Lease.
(7) "Term" or "Lease Term" shall mean the initial lease term and
any renewals or extensions thereof.
(8) "Deed of Trust" shall mean the deed of trust or mortgage securing
Landlord's original, interim, and/or permanent financing for the Leased
Premises.
2.2 Rent Adjustment--Common Area Expenses, Insurance and Taxes.
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Commencing on the Rent Commencement Date, Tenant agrees to pay to Landlord, as
additional rent, with and at the same time as the payments of Basic Annual Rent,
the following amounts:
(1) Nine Thousand Six Hundred Seventy-Three Dollars and Eighty-Seven
Cents ($9,673.87) per month as one-twelfth of the estimated Common Area Expenses
(calculated on the basis of $1.07 multiplied by the Rentable Area of the Leased
Premises);
(2) Thirteen Thousand One Hundred Nine Dollars and Forty-Five Cents
($13,109.45) per month as one-twelfth of the estimated Taxes (calculated on the
basis of $1.45 multiplied by the Rentable Area of the Leased Premises); and
(3) Seven Hundred Twenty-Three Dollars and Twenty-Eight Cents
($723.28) per month as one-twelfth of the estimated cost of Insurance
(calculated on the basis of $0.08 multiplied by the Rentable Area of the Leased
Premises).
At any time during a Lease Year, Landlord may revise its estimate of
the Common Area Expenses, Insurance and Taxes (collectively, the "Expenses") as
set forth above and adjust Tenant's monthly installments to reflect the revised
estimates. Landlord will give Tenant prior written notice of the revised
estimates and the amount by which Tenant's monthly installments will be
adjusted, and Tenant will pay the adjusted installments with each payment of the
rent, beginning with the first payment of the Basic Annual Rent to come due
after Tenant's receipt of such notice.
Landlord will deliver to Tenant, within one hundred twenty (120) days
(or such longer time as is reasonable under the circumstances) after the end of
each applicable Operating Year for the Expenses, a statement for such Operating
Year (the "Statement") , showing such Expenses. Tenant will pay Landlord within
thirty (30) days of the receipt of the Statement such amounts as may be
necessary to adjust Tenant's estimated payments for such preceding Operating
Year so that such payments will equal the actual Expenses for such Operating
Year. If the actual amount of the Expenses is less than the amounts paid by
Tenant as installments, then Landlord will credit Tenant's account by the amount
of the excess or, if at the end of the Lease Term, refund to Tenant the amount
of the excess. Unless Tenant gives Landlord written notice of its exception to
any Statement for such preceding Operating Year within ninety (90) days after
delivery thereof, the same shall be conclusive and binding on Tenant; provided,
however, that in the event that Tenant shall give Landlord written notice of its
exception to such Statement within such ninety (90) day period, Tenant shall
nevertheless be obligated to pay the additional rent.
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Failure of Landlord to provide any Statement within the time
prescribed will not relieve Tenant of its obligations under this Section 4.2.
At its sole cost and expense and without unreasonable interference
with Landlord's business operations or waiving Tenant's obligation to pay the
amount shown on such Statement, Tenant shall have the right, upon at least ten
(10) business days prior written notice given to Landlord within sixty (60) days
after its receipt of a Statement, to examine the books, records and other papers
of Landlord used to compute the Expenses reflected on such Statement. Any such
examination shall be conducted only during Landlord's regular business hours,
and all information examined shall be kept by Tenant in the strictest
confidence. In the event as a result of such audit it shall be determined that
Landlord overcharged Tenant more than five percent (5%) of Tenant's share of
such Expenses, Landlord shall reimburse Tenant all reasonable costs incurred by
Tenant with respect to its audit.
2.3 Tax Adjustment. Tenant acknowledges that Landlord must pay the
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Taxes for an entire tax year (i.e., July 1-June 30) in advance. Therefore,
within thirty (30) days after the Rent Commencement Date, Tenant shall pay to
Landlord a sum equal the pre-paid Taxes paid by Landlord for the tax year in
which the Rent Commencement Date occurs (the "Commencement Tax Year"), pro-rated
from the Rent Commencement Date to the end of the Commencement Tax Year. During
the tax year immediately following the Commencement Tax Year (the "Second Tax
Year"), Tenant shall reimburse Landlord, upon receipt of an invoice therefor,
for any pre-paid Taxes paid by Landlord with respect to the Second Tax Year,
after subtracting therefrom the amount of any estimated payments made by Tenant
pursuant to Section 4.2(b) above with respect to such Second Tax Year.
Thereafter, Tenant's estimated monthly amount of Taxes as set forth in Section
4.2(b) above shall be adjusted to reflect the actual Taxes, which monthly
amounts shall be applied to the tax years immediately following the Second Tax
Year and succeeding tax years, subject to further adjustment. Following
termination of the Lease Term by passage of time or for any reason other than
Tenant's default of this Lease (the "Termination Date"), Tenant shall be
reimbursed by Landlord to the extent of Taxes which it has pre-paid as of such
Termination Date for the period beyond such Termination Date.
2.4 Utilities. From and after the Commencement Date, Tenant shall
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pay on a timely basis to the appropriate utility or other supplier, all charges
for gas, steam, electricity, light, heat, power, telephone, water, metered or
unmetered sprinkler, sewerage and all other utility and communication services,
used, rendered and/or supplied upon or in connection with the Leased Premises,
to the extent not paid by Tenant as a part of the Common Area Expenses. Upon
request, Tenant shall promptly furnish Landlord with copies of all paid receipts
for such utilities charges. All such utility charges shall be appropriately
adjusted between the parties as of the Commencement Date and the expiration or
sooner termination of this Lease.
2.5 Payments. All payments or installments of any rent hereunder
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other than Basic Annual Rent and all sums whatsoever due under this Lease
(including reasonable attorneys' fees) shall be deemed additional rent and shall
be paid to Landlord at the address designated for notice to Landlord herein, or
as otherwise designated by Landlord, and if any installment of Basic annual Rent
or additional rent is not paid within 5 days of the date when due, it shall bear
a late charge equal to five percent (5%) of the arrearage. In addition, the
arrearage shall bear interest calculated at the rate of eighteen percent (18%)
or the highest rate allowable by law, whichever is lower, per annum for each day
such sum is in arrears in consideration of Landlord's additional expense caused
by such failure to pay and shall be payable without demand simultaneously with
the rent arrearage. Time is of the essence in this Lease with respect to
Tenant's monetary obligations hereunder. Although the payments provided by
Section 4.2. hereof are measured and determined by the amount of Taxes, said
payments are, and shall be deemed to be, additional rent. Unless otherwise
provided, any such additional rent shall be due within thirty (30) days after
the Landlord has submitted a written statement to Tenant showing the amount due.
Such obligations shall survive the expiration or sooner termination of this
Lease. Any such statements shall be accompanied by a copy of the ▇▇▇▇ or other
invoice for such charge.
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3. Requirements of Law. Tenant shall, at the sole cost and expense
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of Tenant, observe and comply with all laws, requirements, rules, orders,
ordinances and regulations of any governmental, quasi-governmental entity or of
the local Board of Fire Underwriters applicable to the Leased Premises or any
portion(s) thereof. Tenant shall comply with Landlord's rules and regulations
for the Park, a copy of which is attached hereto as Exhibit E, as the same may
be reasonably amended, modified or supplemented from time to time by Landlord.
4. Tenant's Improvements.
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(1) Tenant agrees that it will not undertake any structural
alterations of any of the improvements, or any part thereof, now or hereafter
erected upon the Leased Premises, or construct any new structures or
improvements upon the Leased Premises or make any other alterations which would
materially change the character of the existing improvements or which would
weaken or impair the structural integrity or lessen the value of the existing
improvements, without the prior written consent of Landlord, which consent of
Landlord may be withheld in Landlord's sole discretion. Tenant shall give
Landlord notice of any alteration, addition, enlargement or improvement and
copies of plans and specifications therefor prior to commencing any work
thereon. Notwithstanding the foregoing, Tenant is permitted to make non-
structural alterations costing less than Ten Thousand dollars ($10,000.00)
without first seeking Landlord's prior consent.
(2) Subject to the limitation contained in the foregoing Section 6(a),
Tenant may, at any time during the term of this Lease, at Tenant's own cost and
expense make or permit to be made any alteration, change or addition of, in, or
to the Leased Premises or any part thereof or any building or improvement which
may hereafter be erected thereon, subject, however, to the following conditions,
each of which must be fully observed and performed by Tenant before the
commencement of any work whatsoever:
(1) That there is no existing and unremedied default on the part of
Tenant, of which Tenant has received notice, under the terms, covenants and
conditions herein on the part of Tenant to be observed and performed.
(2) That Tenant shall covenant that the same shall be performed with
diligence and in a first-class, workmanlike manner.
(3) That neither the interest of the Landlord nor the interest of the
holder of the Deed of Trust nor the Leased Premises nor any building in or
improvement on, under, or above the Leased Premises shall then be the
subject of any charge, liability, claim, or lien of whatsoever kind or
nature by reason of work undertaken by Tenant.
(4) That if under the provisions of any insurance policies required
to be provided and maintained hereunder, any consent to any alteration,
change or addition by the insurers therein shall be required to continue
and keep such policies in full force and effect, Tenant shall obtain such
consents and pay any premiums or charges that may be incurred therefor.
(5) Tenant shall covenant that in the alteration of the then existing
structures and/or the construction of any new building, it will comply with
all applicable requirements of the Building Code of the County and with all
other applicable laws, ordinances, rules and regulations of all
governmental authorities having jurisdiction thereof and of the local Board
of Fire Underwriters or of any similar body.
(6) Tenant shall procure all necessary permits for the alteration of
the then existing structures and for the construction of the new
improvements and shall deliver to Landlord a certificate of occupancy when
required by law, as a condition precedent to the use of the improvements
for their designated purpose. Upon completion of any new structural
improvements, Tenant shall deliver to Landlord a set of the "as built"
plans.
8
(7) All such work shall be done by Landlord or by contractors
approved by Landlord, which approval shall not be unreasonably withheld.
Notwithstanding the foregoing, Tenant understands that, in the event the
work is not performed by Landlord or its agents, such work shall
nevertheless be performed under the general supervision of Landlord or its
agent to assure standard quality improvements on the Real Property for
which Landlord or such agent shall be paid a reasonable supervisory fee
(which supervisory fee shall not exceed five percent of the cost of the
work).
(3) All such work, other than movable furniture, back up power
systems, raised flooring, supplemental HVAC units, or trade fixtures or other
items specifically designated at the time Landlord approves such work, done by
Tenant upon the Leased Premises, shall be the property of the Landlord at the
termination of this Lease; provided, however, that Landlord may require Tenant,
only at the time Landlord approves such work, to remove all or any part of said
work at the expiration of this Lease, in which event such removal shall be done
at Tenant's sole cost and expense. Tenant shall, at its sole cost and expense,
repair any damage to the Leased Premises and/or the Building caused by such
removal or by the removal of its personalty.
(4) Landlord hereby agrees that Tenant, at its sole cost and expense,
shall have the right to install, operate and maintain an underground fiber
optical cable to the Leased Premises, subject, however, to Tenant, at its sole
cost and expense, obtaining any and all necessary governmental approvals, as
well as Landlord's prior written consent as to the location of any such system
so as not to interfere with any existing easements or right-of-ways, underground
utilities or other conduits servicing the Park or any building therein. Tenant
shall promptly restore all areas damaged by the installation of such cable and
shall provide Landlord with as-built drawings of same. If requested by Landlord,
Tenant shall relocate such cables as required by Landlord in connection with
other development at the Park and shall remove such cables at the expiration of
the Lease Term, restoring promptly any and all damage caused by such removal.
5. Condition of Premises.
---------------------
(1) Tenant shall at all times during the Lease Term take good care of
and keep the Leased Premises and the improvements, fixtures, equipment and
appurtenances therein structural or non-structural (including, but not limited
to, interior and exterior walls and windows, interior and exterior doors, pipes,
plumbing, water and sewer connections, heating and air conditioning equipment
and machinery, electrical works, in good order and condition, free of debris,
and, at Tenant's sole cost and expense, shall make all necessary repairs
thereto, which repairs shall be in quality and class at least equal to the
original work. Tenant shall not commit or suffer any waste of the Leased
Premises and will assume responsibility for all maintenance and repair,
regardless of the nature, pertaining to the heating and/or air conditioning
equipment. Tenant shall install, operate and maintain, at its expense, HVAC
related equipment which may be located adjacent to the Building as permitted by
governmental authority, laws and regulations. The location of this equipment is
subject to Landlord's prior consent and Landlord retains the right to require
Tenant to make modifications to same for aesthetic and/or environmental reasons
at Tenant's expense. At the expiration of the Lease Term, or at the sooner
termination of this Lease as herein provided, Tenant shall deliver up the Leased
Premises in the same good order and condition, reasonable wear and tear
excepted, as at the beginning of the tenancy, broom clean and (subject to the
provisions of the preceding Section hereof) Tenant shall remove all of its
property and/or property maintained and/or stored for or on the account of
others therefrom prior to such termination. Any items of Tenant's personality
remaining in the Leased Premises after the termination of the Lease shall be
deemed abandoned by Tenant and become the sole property of Landlord.
Notwithstanding the foregoing, any costs incurred by Landlord in storing and/or
disposing of such abandoned property shall remain the sole obligation of Tenant,
which obligation shall survive the termination of this Lease.
(2) Except as otherwise set forth in this Lease, Landlord shall not be
required to furnish any services or facilities to the Leased Premises and
Landlord shall not be required to rebuild any improvements on the Leased
Premises or to make any repairs, replacements or renewals of any nature or
description to the Leased Premises or any improvement thereon,
9
whether ordinary or extraordinary, foreseen or unforeseen, or to maintain the
Leased Premises in any way.
(3) Landlord hereby agrees to and will assign to Tenant at the
termination of Landlord's Warranty Period (as defined below), to the extent they
exist and are assignable, and any and all written warranties and guarantees from
Landlord's contractors, subcontractors and suppliers of any materials and labor
to the Base Building for that portion, if any, of the Lease Term that such
warranties and guarantees are in effect. With respect to construction of the
Base Building, Landlord hereby warrants ("Landlord's Warranty") to Tenant that
Landlord will be responsible for a period of one (1) year ("Landlord's Warranty
Period") from the Commencement Date with respect to latent defects, to the
extent such defects are not caused by the negligence of Tenant or any of its
servants, employees or contractors (in which event such defects shall be
repaired at Tenant's sole cost.)
6. Conduct on Premises.
-------------------
(1) Tenant shall not do, or permit anything to be done in the Leased
Premises, or bring or keep anything therein which will, in any way, increase the
rate of fire or other insurance maintained on the Real Property by Landlord, or
invalidate or conflict with the fire insurance policies on the Real Property;
obstruct or interfere with the rights of Landlord; or interfere with the good
order of the Building. Tenant agrees that any increase in fire or other
insurance premiums on the Real Property and/or the contents thereof caused by
the use or occupancy of Tenant shall, as they occur or accrue, be added to the
rent heretofore reserved and be paid as a part thereof; and Landlord shall have
all the rights and remedies for the collection of same as are conferred upon
Landlord for the collection of rent provided to be paid pursuant to the terms of
this Lease.
(2) Collocation. Tenant shall have the right to collocate certain
-----------
customer equipment (which may include rooftop equipment, subject to Sections
37(a) and (b) hereunder) in the Leased Premises for the purpose of connecting
such customer equipment to facilities in the provision of telecommunications
services. Tenant shall have the right during the term of the Lease and any
renewal periods to offer to provide telecommunications services to other tenants
of the Park. Landlord shall not impose any charge upon Tenant or other tenants
for such services.
Said customer equipment shall be held by Tenant at its sole cost,
expense and risk and Tenant shall increase or modify its insurance as necessary
to cover said customer equipment, and Tenant shall indemnify, defend and hold
Landlord harmless from any claims regarding said customer equipment.
7. Insurance. At all times during the Lease Term, Tenant, at its
---------
sole cost and expense, shall provide and keep in full force and effect a policy
of public liability and property damage insurance, naming Landlord and Manekin
Corporation as additional insureds, with respect to the Leased Premises and the
business of Tenant in, on, within, from or connected with the Leased Premises,
pursuant to which the limits of liability shall be at least $1,000,000.00 in
respect to any one occurrence, and at least $2,000,000.00 in respect to the
general aggregate limit of liability, or in such amounts as Landlord may
reasonably require. Said insurance policy shall contain a clause that the
insurer will not cancel or change the insurance without first giving Landlord
thirty (30) days prior written notice. Said insurance policy shall be carried
with an insurance company approved by Landlord, and a certificate of insurance
shall be delivered to Landlord at the inception of each policy and renewal
thereof.
8. Mechanics' and Materialmen's Liens and Other Liens. Tenant shall
--------------------------------------------------
not do or suffer to be done any act, I matter or thing whereby the Leased
Premises (or Tenant's interest therein) or any part thereof, may be encumbered
by any mechanics' or materialmen's lien and/or any other lien or encumbrance.
Tenant shall bond or discharge, within ten (10) days after the date of filing,
any mechanics' or materialmen's liens filed against the Leased Premises (or
Tenant's interest therein), or any part thereof, purporting to be for work or
material furnished or to be furnished to Tenant.
10
9. Tenant's Failure to Perform. In the event that Tenant shall
---------------------------
fail, after fifteen (15) days written notice from Landlord, to keep the Leased
Premises in the state of condition and repair required by this Lease; to do any
act; make any payment; and/or perform any term or covenant on Tenant's part
required under this Lease, Landlord may (at its option, but without being
required to do so) immediately, or at any time thereafter and without notice,
perform the same for the account of Tenant (including, but not limited to,
entering upon the Leased Premises to make repairs). All rights given to
Landlord in this Section shall be in addition to any other right or remedy of
Landlord herein contained.
10. Loss, Damage, Injury.
--------------------
(1) Tenant hereby expressly agrees that Landlord and its managers and
agents shall not be liable or responsible in any manner for any damage or
destruction to the property of Tenant or of any other person or entity and/or
for injury or death to the person of Tenant or of any other person or entity
directly or indirectly due to any cause whatsoever other than the willful
misconduct or negligence of Landlord, its contractors, servants, employees,
agents, licensees or invitees.
(2) Tenant shall indemnify and hold harmless Landlord and its managers
and agents from and against all losses, costs and expenses, settlement payments
and all liabilities, damages and/or fines paid, incurred or suffered by Landlord
or its managers and agents, as the case may be: (i) by reason of any breach,
violation and/or nonperformance by Tenant and/or Tenant's servants, employees,
agents, licensees or invitees, of any covenant or provision of this Lease; (ii)
by reason of or arising out of the occupancy or use by Tenant of the Real
Property, or any part thereof, including any claim, action, suit or
proceeding, threatened, instituted and/or made against Landlord arising out of
or in connection therewith; and/or (iii) from any other cause whatsoever due to
the negligence, or willfull misconduct of Tenant and/or Tenant's contractors,
servants, employees, agents, licensees and/or invitees. This indemnification by
Tenant shall survive the termination or expiration of this Lease.
11. Destruction--Fire or or Other Casualty. In the event of partial or
--------------------------------------
total damage or destruction to the Leased Premises by fire, other casualty, or
any other cause whatsoever, then Tenant shall give immediate notice thereof to
Landlord and: (a) this Lease shall continue in full force and effect and (b)
Landlord, to the extent that insurance proceeds respecting such damage or
destruction are subject to being utilized for and, in fact, may be utilized by
Landlord therefor, shall thereupon cause such damage or destruction to property
owned by Landlord to be repaired with reasonable speed at the expense of
Landlord, due allowance being made for reasonable delay which may arise by
reason of adjustment of loss under insurance policies on the part of Landlord
and/or Tenant, and for reasonable delay on account of "labor troubles" or any
other cause beyond Landlord's control, and to the extent that the Leased
Premises are rendered untenantable, the rent shall proportionately ▇▇▇▇▇.
Landlord shall have no obligation to rebuild the Leased Premises if
the reasonably estimated cost of repair and reconstruction exceeds fifty percent
(50%) of the Full Insurable Value of the Leased Premises unless: (i) on the
date of such destruction there shall be four (4) or more years remaining in the
Lease Term or (ii) within thirty (30) days of the date of such destruction,
Tenant, at its option, shall enter into an agreement with Landlord to extend the
Lease Term for a period of at least four (4) years from the date of such
destruction. If Tenant so elects to extend the Lease Term, Landlord covenants
to promptly execute and deliver to Tenant a written agreement evidencing such
extension. In the event Tenant elects not to so extend this Lease, Landlord
shall have the right to either (i) waive the extension requirement and rebuild
the Leased Premises as set forth above, or (ii) terminate this Lease by giving
notice of such election to Tenant, in which event Landlord shall be entitled to
retain all insurance proceeds.
In the event that more than fifty percent (50%) of the Leased Premises
is destroyed by fire, other casualty, or any cause whatsoever, and within sixty
(60) days of such destruction, Landlord's architect determines that it would
take more than two hundred seventy (270) days from
11
the date of such destruction to rebuild the Leased Premises, Tenant shall have
the right to terminate the Lease by giving written notice to Landlord within ten
(10) days of the date of Tenant's receipt of the architect's determination.
12. Eminent Domain. If the entire Leased Premises shall be
--------------
substantially taken (either temporarily or permanently) for public purposes, or
in the event Landlord shall convey or lease the Real Property to any public
authority in settlement of a threat of condemnation or taking, the rent shall be
adjusted to the date of such taking or leasing or conveyance, and this Lease
shall thereupon terminate. If only a portion of the Leased Premises shall be so
taken, leased or condemned, and as a result of such partial taking, Tenant is
reasonably able to use the remainder of the Leased Premises for the purposes
intended hereunder, then this Lease shall not terminate but, effective as of the
date of such taking, leasing or condemnation, the rent hereunder shall be abated
in an amount thereof proportionate to the area of the Leased Premises so taken,
leased or condemned. If, following such partial taking Tenant shall not be
reasonably able to use the remainder of the Leased Premises for the purposes
intended hereunder, then this Lease shall terminate as if the entire Leased
Premises had been taken, leased or condemned. In the event of a taking, leasing
or condemnation as described in this Section, whether or not there is a
termination hereunder, Tenant shall have no claim against Landlord, other than
an adjustment of rent, to the date of taking, leasing or condemnation, and
Tenant shall not be entitled to any portion of any amount that may be awarded as
damages or paid as a result or in settlement of such proceedings or threat, but
Tenant will have the right to pursue a separate claim against the condemnation
authority for its own loss of business and moving expenses.
13. Assignment/Subletting. Tenant covenants and agrees that the
---------------------
Leased Premises shall be used and occupied only by Tenant or any permitted
sublessees or assigns and only for the purpose above mentioned, in a careful,
safe and proper manner. Tenant, for itself, its heirs, distributees, personal
representatives, legal representatives, successors and assigns, expressly
covenants that it shall not assign, mortgage or encumber this Lease, nor
sublease, or use or permit the Leased Premises or any part thereof to be used by
others, without the prior written consent of Landlord in each instance, which
consent shall not be unreasonably withheld delayed or conditioned. In the event
that Landlord shall give such consent, Tenant shall nevertheless remain
primarily liable for the terms of this Lease and shall not be relieved from any
liability whatsoever under this Lease. Tenant shall bear the reasonable and
actual legal review costs incurred by Landlord in connection with such
assignment or subleasing. Any consent by Landlord to an assignment or
subletting of this Lease shall not constitute a waiver of the necessity of such
consent as to any subsequent assignment or subletting.
Although an assignment includes an assignment of the Lease to any
subsidiary, parent or affiliate corporation of Tenant (a "Related Company"),
Landlord's consent shall not be required so long as Related Company shall have a
creditworthiness comparable to that of Tenant as of the date hereof and Tenant
shall have complied with all other provisions of this Section 15 with respect to
such assignment and the Related Company affirms, to Landlord's satisfaction, all
aspects of the Lease. Tenant shall give Landlord reasonable evidence that such
creditworthiness test has been met, together with such other detail as Landlord
may reasonably request.
Provided Tenant pays Landlord's costs in connection with any permitted
assignment or subletting, then in the event that the amount of the rent to be
paid to Tenant by an assignee or sublessee is greater than the rent required to
be paid by Tenant to Landlord pursuant to this Lease, excluding Tenant's
reasonable and actual expenses in marketing and transacting the sublease or
assignment, Tenant shall pay to Landlord fifty percent (50%) any such excess as
is received by Tenant from such assignee or sublessee. In the event Tenant
desires to assign this Lease or to sublease all or any portion of the Leased
Premises, Landlord shall have the right and option to terminate this Lease no
later than the proposed commencement date of the sublease, which right or option
shall be exercisable by written notice from Landlord to Tenant within thirty
(30) days from the date Tenant gives Landlord written notice in reasonable
detail of such proposed assignment or sublease.
12
Any levy or sale in execution, or any assignment or sale in bankruptcy
or insolvency, or the appointment of a receiver or trustee of any of the
property of Tenant by a state or federal court, or the transfer of any control
(whether by operation of law, sale, lease, transfer, gift, merger, consolidation
or otherwise) of Tenant to persons or entities other than those maintaining
control of Tenant on the date hereof shall be deemed an assignment within the
meaning of this Section.
If this Lease be assigned without Landlord's consent, or if the Leased
Premises or any part thereof be subleased or occupied by anybody other than
Tenant, without Landlord's consent, then (1) all expenses incurred by Landlord
in connection therewith, including but not limited to, brokerage fees, costs and
expenses incurred by Landlord's agents, servants, independent contractors, and
employees, shall be the obligation and shall be immediately paid by Tenant at
its sole cost and expense upon the receipt of a statement therefor from
Landlord, and (ii) Landlord may, after default by Tenant, collect rent from the
assignee, subtenant or occupant and apply the net amount collected to the rent
herein reserved, but no such collection shall be deemed a waiver of this
covenant, or the acceptance of the assignee, subtenant, or occupant as tenant,
or a release of Tenant from the further observance and performance by Tenant of
the covenants herein contained.
140 Defaults.
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(1) Each of the following shall be deemed a material default by Tenant
under this Lease and a substantial breach of this Lease, entitling Landlord to
all remedies set forth below or existing at law or in equity:
(1) The filing of a petition by or against Tenant for debtor
relief as defined under the Federal Bankruptcy Code, as now or hereafter amended
or supplemented, or for reorganization, arrangement or other rehabilitation
within the meaning of the Bankruptcy Code, or the commencement of any action or
proceeding for the dissolution or liquidation of Tenant, whether instituted by
or against Tenant, or for the appointment of a receiver or trustee of the
property of Tenant; for purposes of this subsection, the word "Tenant" shall
include any guarantor of Tenant's obligations under this Lease provided,
however, Tenant shall have sixty (60) days after the filing of an involuntary
bankruptcy to discharge same;
(2) The making by Tenant of an assignment for the benefit of
creditors,
(3) The suspension of business by Tenant or any act by Tenant
amounting to a business failure;
(4) The filing of a tax lien against any property of Tenant
located at the Leased Premises;
(5) Tenant's causing or permitting the Leased Premises to be
vacant, the abandonment of the Leased Premises by Tenant and/or the cessation by
Tenant of active use of the Leased Premises for the purpose specified herein.
Notwithstanding the foregoing, if Tenant causes or permits the Leased Premises
to be vacant, abandoned and/or Tenant ceases active use of the Leased Premises,
so long as Tenant continues to pay the rent and all other charges required
hereunder and to maintain all other Tenant obligations hereunder, the Landlord
has the option, as Landlord's sole remedy as the result of such default, to
terminate the Lease, at any time, upon no more than ninety (90) days advance
notice to Tenant.
(6) Tenant's failure to pay Rent or any part thereof, or all or
any part of any other sum (including late charges) required by this Lease within
five (5) days after Landlord has given Tenant notice that such payment is due,
provided, however, that no notice shall be required to be given to Tenant, and
Tenant shall be in immediate default, if Landlord has given such notice to
Tenant two (2) times in the preceding twelve months.
13
(7) A breach by Tenant in the performance of any other term,
covenant, agreement or condition of this Lease, on the part of Tenant to be
performed, for a period of fifteen (15) days after service of notice by Landlord
upon Tenant. Landlord shall extend this fifteen day period if Tenant is
diligently pursuing to correct said breach.
(2) All rights and remedies of Landlord in this Lease enumerated shall
be cumulative, and none shall exclude any other right or remedy, now or
hereafter allowed by or available under any statute, ordinance, rule of court,
or the common law, either at law or in equity or both. For the purposes of any
suit brought or based hereon, this Lease shall be construed to be a divisible
contract, to the end that successive actions may be maintained on this Lease as
successive periodic sums shall mature hereunder. The failure of Landlord to
insist, in any one or more instances upon a strict performance of any of the
covenants, terms and conditions of this Lease, or to exercise any right or
option herein contained, shall not be construed as a waiver, or a relinquishment
for the future, of such covenant, term, condition, right or option, but the same
shall continue and remain in full force and effect unless the contrary is
expressed by Landlord in writing. The receipt by Landlord of rent, with
knowledge of the breach of any covenant hereof, shall not be deemed a waiver of
such breach, and no waiver by Landlord of any provision hereof shall be deemed
to have been made unless expressed in writing and signed by Landlord.
(3) In the event of a default of the nature set forth in 16(a) above,
Landlord may, at any time thereafter, at its election, without further notice to
Tenant, terminate this Lease and Tenant's right to possession of the Leased
Premises, and take possession of the Leased Premises, and remove Tenant, any
occupant, and any property therefrom, without relinquishing any rights of
Landlord against Tenant.
(4) If Tenant breaches this Lease as set forth above, Tenant shall be
obligated to, and shall pay to Landlord as damages, upon demand, and Landlord
shall be entitled to recover of and from Tenant at the election of Landlord, all
expenses which shall have been incurred as a result of such breach, including
the costs of any proceedings which shall have been necessary in order for
Landlord to recover possession of the Leased Premises and the expenses of
rerenting the Leased Premises (including, but not limited to, any commissions
paid to any real estate agent in connection therewith and actual attorneys' fees
incurred at the standard hourly rates for such attorneys); plus, either:
(1) liquidated damages, in an amount which, at the time of such
termination is equal to the installments of Basic Annual Rent and the aggregate
of all sums payable hereunder as additional rental (the "Additional Rental")
(for such purpose considering the annual amount of such Additional Rental to be
equal to the amount thereof paid in the lease year or annualized portion thereof
immediately preceding such default) reserved hereunder, for the period which
would otherwise have constituted the unexpired portion of the then current term
of this Lease, said amount to be discounted at the discount rate then in effect
at the Federal Reserve Bank in Baltimore; or
(2) damages (payable in monthly installments, in advance, on the
first day of each calendar month following such termination and continuing until
the date originally fixed herein for the expiration of the then current term of
this Lease) in an amount or amounts equal to the sum of (i) the aggregate
expenses (other than Additional Rental) paid by Landlord during the month
immediately preceding such calendar month for all such items as, by the terms of
this Lease, are required to be paid by Tenant, plus (ii) an amount equal to the
amount of the installment of Basic Annual Rent which would have been payable by
Tenant hereunder in respect of such calendar month had this Lease and the Lease
Term not been so terminated, and (iii) the monthly average of the Additional
Rental payable in the lease year or annualized portion thereof immediately
preceding such default, over the rents, if any, in fact, collected by Landlord
in respect of such calendar month pursuant to either rerenting, or from any
existing permitted subleases, and any suit, action or proceeding brought to
collect the amount of the deficiency for any calendar month shall not prejudice
in any way the rights of Landlord to collect the deficiency for any subsequent
month by a similar proceeding.
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(5) No act or thing done by Landlord shall be deemed to be an
acceptance of a surrender of the Leased Premises, unless Landlord shall execute
a written release of Tenant. Tenant's liability hereunder shall not be
terminated by the execution of a new lease of the Leased Premises by Landlord,
regardless of the term of such new lease. Separate actions may be maintained
each month by Landlord against Tenant to recover the damages then due, without
waiting until the end of the Term of his Lease to determine the aggregate amount
of such damages.
(6) Landlord will use its reasonable efforts to mitigate its damages
hereunder, including using reasonable efforts to relet the Leased Premises,
provided, however, that Landlord shall have no obligation to attempt to relet
the Leased Premises ahead of any other then vacant space in the Park.
16(g). Landlord Default. Landlord shall be in default under this
----------------
Lease if Landlord has not commenced and pursued with reasonable diligence the
cure of any failure of Landlord to meet its obligations under this Lease within
fifteen (15) days of the receipt by Landlord of written notice from Tenant of
the alleged failure to perform (which 15-day period may be extended, if
necessary for whatever additional period of time may be reasonably required).
In the event of a default by Landlord as aforesaid, Tenant shall be entitled as
its sole remedy, without further notice to Landlord, to perform Landlord's
obligations for the account of Landlord and hold Landlord responsible for all
reasonable costs associated with such performance. In no event, however, shall
Tenant be entitled to set-off or ▇▇▇▇▇ rent as a result of the foregoing
provision.
[Remainder of Page Intentionally Left Blank]
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15. Acceptance of Leased Premises. Tenant's occupancy of the Leased
-----------------------------
Premises shall constitute acceptance thereof as complying with all requirements
of Tenant and Landlord with respect to the condition, order and repair thereof.
16. Access to Premises and Change in Services. Landlord and/or the
-----------------------------------------
authorized representative of Landlord or any mortgagee or deed of trust holder
shall have the right without abatement of rent, to enter the Leased Premises at
any reasonable hour upon twenty-four (24) hours advance written or verbal notice
(except in emergencies when no advance notice shall be required) to examine the
same and/or to make such repairs improvements and alterations as Landlord and/or
such authorized representative shall deem necessary (but Landlord shall not be
obligated to do so) for the safety and preservation of the Building, or for any
other reasonable purpose whatsoever, including exhibiting the Leased Premises to
prospective purchasers or tenants, during the last six (6) months of the Lease
term.
17. Estoppel Certificates. Tenant agrees at any time and from time
---------------------
to time upon not less than seven (7) business days prior notice by Landlord to
execute, acknowledge and deliver to Landlord a statement in writing certifying
that this Lease is unmodified and in full force and effect (or if there have
been modifications, that the same is in full force and effect as modified and
stating the modifications) and the dates to which the rent and other charges
have been paid in advance, if any, and stating whether or not, to the best
knowledge of the signer of such certificate, Landlord is in breach and/or
default in performance of any covenant, agreement or condition contained in this
Lease and, if so, specifying each such breach and/or default of which the signer
may have knowledge, and any other matters reasonably requested in such estoppel
certificate, it being intended that such statement delivered hereunder may be
relied upon by any party not a party to this Lease. Tenant's failure to deliver
such estoppel certificate within said 7-day period shall be deemed a material
default by Tenant under this Lease.
18. Subordination. Tenant accepts this Lease, and the tenancy
-------------
created hereunder, subject and subordinate to any ground leases, security
interests, mortgages, deeds of trust or other financing arrangements now or
hereafter a lien upon or affecting the Leased Premises or any part or parts
thereof and to any extensions, modifications or amendments thereof, provided,
however, that so long as Tenant is not in default of any provision of this
Lease, its rights under this Lease shall not be diminished. Tenant shall, at
any time hereafter, on request, execute any instruments which may be necessary
to subordinate, or render prior Tenant's interest hereunder to such lien and the
failure of Tenant to execute any such instruments shall constitute a default
hereunder. If applicable, Landlord agrees to use its reasonable efforts, at
Tenant's cost and expense, to obtain a nondisturbance agreement in form and
substance acceptable to Landlord's lender.
19. Attornment. Tenant agrees that upon any termination
----------
of Landlord's interest in the Leased Premises Tenant shall, upon request, attorn
to the person or entity then holding title to the reversion of the Leased
Premises (the "Successor") and to all subsequent Successors, and shall pay to
the Successor all rents and other monies required to be paid by the Tenant,
hereunder and perform all of the other covenants, agreements, provisions,
conditions, obligations and/or duties of Tenant in this Lease contained.
20. Notices. All notices, demands and requests required under this
-------
Lease shall be in writing and shall be mailed by United States registered or
certified mail, return receipt requested, postage prepaid, or sent by Federal
Express, or some other nationally recognized overnight courier service, or hand
delivered with a receipt and addressed (i) if to Landlord, c/o Manekin
Corporation, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
Attention: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, with a copy to Manekin Corporation, ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel, with a copy
to ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, Esquire, c/▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ or (ii) if to Tenant, at the Leased
Premises with a copy to Intermedia Communications Inc., ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: Legal Department. All notices delivered in the
foregoing manner shall be deemed received by the other party on the earliest of:
(i) three (3) business days after the notice is sent; (ii) if applicable, the
date the return receipt is executed; or (iii) if
16
applicable, the date delivered as documented by the overnight courier service.
All rental payments and all charges due under this Lease shall be delivered to
Landlord at the address of Landlord set forth above, Attention: Accounting
Department. Either party may designate a change of address by written notice to
the other party.
21. Landlord's Liability. The term "Landlord" as used in this Lease
--------------------
means only the owner, the mortgagee, or the trustee or the beneficiary under a
deed of trust, as the case may be, for the time being, of the Building (or the
owner of a lease of the Building), so that in the event of any transfer of title
to Landlord's estate and interest in the Leased Premises, the transferring
entity shall be and hereby is entirely freed and relieved of all covenants and
obligations of Landlord hereunder thereafter accruing. It is understood that
Landlord on the date hereof is a Maryland limited partnership, and that no
partner of said limited partnership, as it may now or hereafter be constituted,
shall have any personal liability to Tenant and/or any person or entity claiming
under, by or through Tenant and as to Landlord, recourse for such liability
shall be limited to Landlord's interest in the Building.
22. Separability, Enforceability. 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
application of such term or provision to persons or circumstances other than
those as to which it is held invalid or unenforceable, shall not be affected
thereby, and each term and provision of this Lease shall be valid and
enforceable to the fullest extent permitted by law. Notwithstanding any
language in this Lease to the contrary, if the Lease Term does not commence on
or before January 1, 2010, this Lease shall terminate automatically and neither
party shall have any further liability to the other.
23. Captions. All headings anywhere contained in this Lease are
--------
intended for convenience of reference only and are not to be deemed or taken as
a summary of the provisions to which they pertain or as a construction thereof.
24. Recordation. Tenant covenants that if at any time any mortgagee
-----------
of Landlord's interest in the Leased Premises, any trustee or beneficiary under
a deed of trust constituting a lien upon the Building of which deed of trust
Landlord is grantor, or a landlord of Landlord in respect of the real property
upon which the Building is situate, shall require the recordation of this Lease,
or 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 such taxes on this Lease, Tenant shall execute such acknowledgments as may
be necessary to effect such recordation and whichever party requires such
recordation shall pay all recording fees, transfer taxes and documentary stamp
taxes payable on, or in connection with, this Lease or such recordation.
25. Successors and Assigns. The covenants, conditions and agreements
----------------------
contained in this Lease shall bind and inure to the benefit of Landlord and
Tenant, and their respective heirs, distributees, executors, administrators,
successors, personal and legal representatives and their permitted assigns.
26. Waiver of Jury Trial. Landlord and Tenant desire a prompt
--------------------
resolution of any litigation between them with respect to this Lease. To that
end, Landlord and Tenant waive trial by jury in any action, suit, proceeding
and/or counterclaim brought by either against the other on any matters
whatsoever arising out of or in any way connected with this Lease, the
relationship of Landlord and Tenant, Tenant's use or occupancy of the Leased
Premises, any claim of injury or damage and/or any statutory remedy. This
waiver is knowingly, intentionally and voluntarily made by Tenant. Tenant
acknowledges that neither Landlord nor any person acting on behalf of Landlord
has made any representations of fact to induce this waiver of trial by jury or
in any way to modify or nullify its effect. Tenant further acknowledges that it
has been represented (or has had the opportunity to be represented) in the
signing of this Lease and the making of this waiver by independent legal
counsel, selected of its own free will, and that it has had the opportunity to
discuss
17
this waiver with counsel. Tenant further acknowledges that it has read and
understands the meaning and ramifications of this waiver of jury trial.
27. Miscellaneous.
-------------
(1) As used in this Lease, and where the context requires: (1) the
masculine shall be deemed to include the feminine and neuter and vice-versa; and
(2) the singular shall be deemed to include the plural and vice-versa.
(2) This Lease was made in the State of Maryland and shall be governed
by and construed in all respects in accordance with the laws of the State of
Maryland.
(3) Tenant covenants and agrees that it shall not inscribe, affix, or
otherwise display signs, advertisements or notices in, on, upon or behind any
windows or on any door, partition or other part of the interior or exterior of
the Building without the prior written consent of Landlord. If such consent be
given by Landlord, any such sign, advertisement, or notice shall be inscribed,
painted or affixed by Landlord, or a company approved by Landlord, but the cost
of the same shall be charged to and be paid by Tenant, and Tenant agrees to pay
the same promptly, on demand. Notwithstanding the foregoing, Tenant shall have
the right, at its sole cost and expense, to erect up to three (3) identification
signs on the fascia of the Building and a monument sign at the entrance to the
Building, subject, however, to Tenant obtaining the prior written approval for
such signs from Landlord, the applicable governmental authorities of the County
and the Maryland-National Capital Park and Planning Commission. Such signs
shall be installed by a reputable contractor reasonably acceptable to Landlord.
Tenant shall hold Landlord harmless from any damage caused to the Building as a
result of the installation of such signs. Upon termination of the lease, it
shall be Tenant's obligation, at its sole expense, to remove such signs and to
restore the exterior face of the Building to its condition prior to erecting
such signs, normal wear and tear excepted.
(4) Landlord will provide a minimum of 5.5 parking spaces at the
Leased Premises for every 1000 square feet of Rentable Area of the Leased
Premises, subject to the provisions of Section 37 below. Tenant further agrees
that Landlord will not be responsible for any loss of parking arising from
changes to the Base Building Plans required by Tenant.
(5) Except as otherwise specifically provided in this Lease, no
abatement, refund, offset, diminution or reduction of rent, charges or other
compensation shall be claimed by or allowed to Tenant, or any person claiming
under it, under any circumstances, whether for inconvenience, discomfort,
interruption of business, or otherwise, arising from the making of alterations,
changes, additions, improvements or repairs to the Building or the Leased
Premises, by virtue or because of any present or future governmental laws,
ordinances, or for any other cause or reason.
(6) Landlord covenants and agrees that, upon the payment of the rent
herein provided and the performance by Tenant of all the covenants, agreements
and provisions hereof on Tenant's part to be kept and performed, Tenant shall
have, hold and enjoy the Leased Premises, free from any interference by, from or
through Landlord except as may be otherwise expressly provided herein.
(7) Landlord represents and warrants to Tenant that, to its knowledge,
as of the Rent Commencement Date, the exterior of the Building and access
thereto will comply with the Americans with Disabilities Act and the regulations
promulgated thereunder.
(8) In the event that any action shall be instituted by either of the
parties hereto for the enforcement of any of its rights or remedies in and under
this Lease, the prevailing party, whether in court or by way of out-of-court
settlement, shall be entitled to recover from the non-prevailing party or
parties such prevailing party's attorneys' fees, court costs, expert witness
fees
18
and/or other expenses relating to such controversy, including attorneys' fees,
court costs and/or expenses on appeal, if any.
28. Environmental Assurances.
------------------------
(1) Covenants. Tenant covenants with Landlord:
---------
(1) that it shall not Generate (as defined below) Hazardous Substances
(as defined below) at, to or from the Leased Premises unless the same is
specifically approved in advance by Landlord in writing;
(2) to comply with all obligations imposed by applicable law, and
regulations promulgated thereunder, and all other restrictions and regulations
upon the Generation of Hazardous Substances (whether or not at, to or from the
Leased Premises);
(3) to deliver promptly to Landlord true and complete copies of all
notices received by Tenant from any governmental authority with respect to the
Generation by Tenant of Hazardous Substances (whether or not at, to or from the
Leased Premises);
(4) to complete fully, truthfully and promptly any questionnaires sent
by Landlord with respect to Tenant's use of the Leased Premises and Generation
of Hazardous Substances;
(5) to permit entry onto the Leased Premises by Landlord or Landlord's
representatives at any reasonable time upon twenty-four (24) hours advance
written or verbal notice (except in emergencies, when no advance notice shall be
required) to verify and monitor Tenant's compliance with its representations,
warranties and covenants set forth in this Section;
(6) to pay to Landlord, as additional rent, the reasonable and
necessary costs incurred by Landlord hereunder, including the costs of such
monitoring and verification; and
(7) to furnish to Landlord, at the expiration of the Lease Term or at
the sooner termination of the Lease Term as herein provided, a certification in
form and content acceptable to Landlord from an environmental audit company
acceptable to Landlord to the effect that, based upon an inspection conducted by
such environmental audit company not more than thirty (30) days prior to the
expiration or termination of the Lease Term, the generators and fuel tanks
described below have been properly removed and the Leased Premises are free from
Hazardous Substances.
Notwithstanding the foregoing, Tenant shall have the right to install,
operate and maintain, at its sole cost and expense, at the Leased Premises, one
(1) or more diesel generators with above ground fuel tanks provided that (a) the
generators and fuel tanks shall be in compliance with all applicable
environmental laws; (b) Tenant shall maintain such environmental liability
insurance as Landlord may reasonably request with respect thereto; (c) the
generators and/or fuel tanks shall be placed in a location, and shielded in a
manner, acceptable to Landlord in its reasonable discretion; and (d) Tenant
shall remove the same from the Leased Premises upon the expiration of the Lease
Term and repair all damage caused by such removal.
(2) Indemnification. Tenant agrees to indemnify and defend Landlord,
---------------
its managers and agents (with legal counsel reasonably acceptable to Landlord)
from and against any costs, fees or expenses (including, without limitation,
environmental assessment, investigation and environmental remediation expenses,
third party claims and environmental impairment expenses and reasonable
attorneys' fees and expenses) incurred by Landlord or its managers and agents,
as the case may be, in connection with Tenant's Generation of Hazardous
Substances at, to or from the Leased Premises or in connection with Tenant's
failure to comply with its representations, warranties and
19
covenants set forth in this Section. The indemnification by Tenant under this
Section 30 will remain in effect after the termination or expiration of this
Lease.
(3) Definitions. The term "Hazardous Substance" means (i) any
-----------
"hazardous waste" as defined by the Resource Conservation and Recovery Act of
1976 (42 U.S.C. (S) 6901 et seq.), as amended from time to time, and regulations
promulgated thereunder; (ii) any "hazardous substance" as defined by the
Comprehensive Environmental Response, Compensation and Liability Act of 1980 (42
U.S.C. (S) 9601 et seq.), as amended from time to time, and regulations
------
promulgated thereunder; (iii) any "oil, petroleum products, and their by-
products" as defined by the Maryland Environment Code ▇▇▇. (S) 4-411(3)(i), as
amended from time to time, and regulations promulgated thereunder; (iv) any
"controlled hazardous substance" or "hazardous substance" as defined by the
Maryland Environment Code ▇▇▇., Title 7, subtitle 2, as amended from time to
time, and regulations promulgated thereunder; (v) any "infectious waste as
defined by the Maryland Environment Code ▇▇▇. (S) 9-227, as amended from time to
time, and regulations promulgated thereunder; (vi) any substance the presence of
which on the Real Property is prohibited, regulated or restricted by any local
law or regulation or any other law or regulation similar to those set forth in
this definition; and (vii) any other substance which by law or regulation
requires special handling in its Generation. The term "To Generate" means to
use, collect, generate, store, transport, treat or dispose of.
29. Lender's Requirements. Tenant agrees to execute and deliver to
---------------------
Landlord an amendment to this Lease incorporating such modifications of, and
additions to, the terms and provisions of this Lease as the parties secured by
the Deed of Trust shall require as a condition precedent to their approving this
Lease. Notwithstanding the foregoing, Tenant shall not be required to execute
any such amendment which shall modify the provisions of this Lease as to the
amounts of Basic Annual Rent or additional rent, or other sums payable by Tenant
hereunder.
30. Authority. Tenant warrants to Landlord that Tenant is a
---------
corporation organized and validly existing in good standing under the laws of
the State of Delaware and qualified to transact business in the State of
Maryland. In addition, Tenant warrants to Landlord that this Lease has been
properly authorized and executed by Tenant and is binding upon Tenant in
accordance with its terms. Tenant's resident agent's name and address in the
State of Maryland are Prentice Hall Corporation System, Md., ▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇. Tenant agrees to notify Landlord in writing of any
change with respect to its resident agent.
31. Force Majeure. In the event that either party hereto shall be
-------------
delayed or hindered in or prevented, by reason of weather, strikes, lock-outs,
labor troubles, inability to procure materials, failure of power, restrictive
governmental laws or regulations, riots, insurrection, war, Acts of God or other
reason of a like nature (excluding lack of funds) not the fault of the party
delayed from performing work or doing any act required under the terms of this
Lease, then performance of such act shall be excused for the period of the delay
and the period of the performance of any such act shall be extended for a period
equivalent to the period of such delay. The party so delayed shall give prompt
notice thereof to the other party, stating the force majeure event, and its
beginning and ending dates. The provisions of this Section 33 shall not operate
to excuse Tenant from prompt payment of rent, additional rent or any other
payments required by the terms of this Lease.
32. Real Estate Broker. Landlord and Tenant warrant to the other
------------------
that no real estate broker other than Manekin Corporation and CB ▇▇▇▇▇▇▇ ▇▇▇▇▇,
Inc. has been employed, caused to be employed, or otherwise utilized in bringing
about this Lease, and agrees to hold harmless and indemnify the other with
respect to the foregoing warranty. Landlord shall pay the commissions due by it
pursuant to the terms of the letter agreement dated June 2, 1998 between
Landlord and CB ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc.
20
33. Intentionally Deleted.
---------------------
34. Holding Over. If Tenant holds possession of the Leased Premises
------------
after the termination of this Lease without Landlord's written consent, Tenant
shall become a tenant from month to month at one hundred seventy-five percent
(175%) the rent payable during the final lease year and upon all other terms
herein specified and shall continue to be such tenant from month to month until
such tenancy shall be terminated by either party giving the other a written
notice at least thirty (30) days prior to the date of its intended termination
of such tenancy. Nothing contained in this Lease shall be construed as a
consent by Landlord to the occupancy or possession of the Leased Premises by
Tenant after termination of this Lease. Upon the termination of this Lease,
Landlord shall be entitled to the benefit of all public general or public local
laws relating to the speedy recovery of the possession of lands and tenements
held over by tenants, that may now or hereafter be in force.
35. Equipment.
---------
(1) Antenna. So long as this Lease is in full force and effect and
-------
Tenant is not in default of any obligation on its part to be performed
hereunder, Tenant shall have the right to install, operate and maintain, at its
sole cost and expense, at the Leased Premises: one or more antenna(s) in an
"antenna field" of approximately 100 x 100; and one or more, but not more than
five (5) antenna(s) on the roof of the Building provided that (a) all antennas
shall be installed in compliance with all applicable legal requirements, and
Tenant shall obtain all necessary permits and zoning approvals required with
respect thereto; (b) all antennas shall be placed in a location, and shielded in
a manner, acceptable to Landlord in its sole and absolute discretion; and (c)
Tenant shall remove the same from the Leased Premises upon the expiration of the
Lease Term and repair all damage caused by such removal. Tenant further
acknowledges and agrees that the antenna field may result in a loss of parking
spaces which shall not be the responsibility of the Landlord. Tenant shall be
responsible, at its sole cost and expense, for obtaining any necessary
governmental or zoning approvals as a result of the loss of parking spaces.
Tenant may submit for Landlord approval, which shall not be unreasonably
withheld or delayed, a request for more than five (5) antennas.
(2) Rooftop Equipment License. So long as this Lease is in full force
-------------------------
and effect and Tenant is not in default of this Lease, Tenant may erect, from
time to time, at its expense, with Landlord's consent, which consent shall not
be unreasonably withheld, unreasonably delayed or unreasonably conditioned,
satellite dishes, and other light equipment on the roof of the Building (the
"Roof Equipment") so long as the same do not negatively impact the aesthetics or
functional integrity of the Building in Landlord's reasonable opinion, and
subject to the terms and conditions set forth below. Furthermore, Tenant shall
make every effort to place the Roof Equipment within the boundaries of the
existing roof screen.
(1) Landlord hereby grants to Tenant the exclusive right to
use and occupy the roof of the Building (the "Licensed Space") for the purpose
only of operating and maintaining the Roof Equipment.
(2) Tenant for itself, its employees, agents and contractors
shall have free access to the Licensed Space to install, service, operate, and
maintain the Roof Equipment subject to the reasonable rules and regulations of
Landlord promulgated from time to time.
(3) The term of this License shall be the Lease Term.
(4) Upon the termination of the License, Tenant shall remove
the Roof Equipment and repair any damage caused by said removal at the License
expiration and leave the Licensed Space in the same order and repair as when
received by Tenant, reasonable wear and tear excepted. Tenant covenants to pay
to Landlord within twenty (20) days of written notice, the cost of repairing any
damage to the Building resulting from the operation or maintenance of the Roof
Equipment.
21
(5) Tenant shall throughout the term of this License maintain
the Roof Equipment in accordance with reasonable and customary engineering
standards and in conformity with any requirements of the Federal Communications
Commission and with the requirements of all other public authorities having
jurisdiction over Tenant.
(6) Tenant, at its expense, must obtain all necessary zoning
and government approvals, as well as approvals required by any Park covenants.
(7) The Roof Equipment must be limited to Tenant's business
and Tenant shall not license the Licensed Space to others.
(8) This License is not assignable by Tenant.
36. Net Lease. It is the purpose and intent of Landlord and Tenant
---------
that the Basic Annual Rent shall be net to Landlord, so that this Lease shall
yield, net, to Landlord, the Basic Annual Rent specified in Section 4 hereof in
each lease year during the Term of this Lease, and that all costs, expenses and
charges of every kind and nature relating to the Leased Premises which may arise
or become due during the Term of this Lease shall be paid by Tenant, except as
otherwise provided for herein and that Landlord shall be indemnified and saved
harmless by Tenant from and against the same.
37. Riders. Two (2) riders, comprised of three (3) pages, are
------
attached hereto and made a part hereof.
(signatures appear on following page]
22
IN WITNESS WHEREOF, Landlord and Tenant have respectively signed this Lease
under seal as of the day and year first above written.
WITNESS/ATTEST 1111 19/th/ STREET ASSOCIATES LIMITED PARTNERSHIP
By: ▇▇▇▇▇ PROPERTY COMPANY,
General Partner
By: (SEAL)
--------------------- ---------------------
Landlord
INTERMEDIA COMMUNICATIONS INC.
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇▇ (SEAL)
--------------------- ---------------------
Name:
Title:
Tenant
23
RIDER NO. 1
RENEWAL OPTION
Rider to Section 2 (Term)
Provided (i) this Lease is then in full force and effect, (ii) Tenant is
not in default respecting any provision or condition of this Lease either on the
date Tenant elects to renew or on the date the renewal term commences, and,
(iii) Tenant has not failed more than one time per Lease Year during the
original term of the Lease to pay any payments called for by this Lease on the
date such payment is due, then Tenant shall have the right to renew this Lease,
then Tenant shall have the right to renew this Lease for two (2) renewal terms
of five (5) years each immediately following the expiration of the original term
on the same terms, conditions, and provisions as are set forth in this Lease
with the same force and effect as though this Lease had originally provided for
an approximately fifteen (15) year and two (2) month term or twenty (20) year
and two (2) month term, except that the Basic Annual Rent payable during the
first year of each renewal term with respect to the Leased Premises shall be
adjusted to reflect ninety-five percent (95%) of the then prevailing rental rate
for comparable office space within the Beltsville/Calverton submarket of the
County. The Basic Annual Rent shall increase thereafter by 3% per annum on the
first day of each lease year throughout each renewal term.
Tenant shall be deemed to have waived the right to exercise this renewal
option unless not less than six (6) months prior to the date of termination of
the original term or the first renewal term, as the case may be, Tenant shall
have notified Landlord in writing of Tenant's election to renew (the "Renewal
Notice"). Landlord shall give Tenant written notice of the prevailing rental
rate within thirty (30) days after Landlord's receipt of the Renewal Notice (the
"Rent Notice"). Tenant may elect to have the prevailing rental rate determined
as set forth below if it does not agree with Landlord's determination thereof by
giving Landlord written notice (the "Appraisal Notice") within ten (10) business
days after Tenant's receipt of the Rent Notice.
Within five (5) business days after the Landlord receives the Appraisal
Notice from Tenant, Landlord and Tenant shall give written notice to the other
that each, at its own expense, has hired and appointed a disinterested real
estate broker of recognized competence and professional experience as a broker
of comparable commercial and industrial real estate in the BaltimoreWashington
Metropolitan Area. The two brokers thus appointed shall mutually agree upon the
appointment of a third broker, the cost of which shall be shared equally by
Landlord and Tenant, which broker shall also be a disinterested person of
recognized competence and professional experience as a broker of comparable
commercial and industrial real estate in the Baltimore-Washington Metropolitan
Area. In the event that the two brokers shall be unable to agree, within ten
(10) days after their appointment, on the appointment of the third broker, then
Tenant shall choose three brokers meeting the above criteria from whom Landlord
shall choose one who shall serve as the third broker. Landlord shall notify
Tenant of the selection of the third broker within ten (10) days of Tenant's
notice to Landlord of the selection of such three brokers from which Landlord is
to choose. The third broker shall as promptly as possible, but in no event more
than thirty (30) days after the date of his selection, conduct an appraisal of
the Building for purposes of determining the then prevailing rent therein. Upon
completion of his appraisal, the third broker shall immediately give written
notice to the parties hereto stating his determination, and shall furnish to
each party hereto a copy of such determination signed by him which determination
shall be final and binding on the parties.
Time is of the essence with respect to Tenant's exercise of its rights
under this Rider and Tenant acknowledges that Landlord requires strict adherence
to the requirement that the Renewal Notice and Appraisal Notice be timely made
and in writing.
24
RIDER NO. 2
Provided this Lease is in full force and effect and Tenant is not in
default of any obligation its part to be performed hereunder, Tenant shall have
the exclusive right for a period of one hundred eighty (180) days from the date
of this Lease (the "Negotiation Term") to enter into negotiations with Landlord
for an agreement (the "Expansion Lease") pursuant to which Tenant shall lease
from Landlord a building to be constructed by Landlord, containing 200,000-
250,000 square feet, in the approximately 800,000 square foot project to be
developed by Landlord north of Muirkirk Road. The parties hereby agree to
negotiate in good faith the terms of the Expansion Lease during the Negotiation
Term. Except for the Tenant's exclusive right to negotiate as set forth above,
the terms of this Rider No. 2 shall not be deemed to create a binding agreement
upon the parties with respect to the Expansion Lease unless and until a mutually
acceptable binding agreement is fully executed and delivered by the parties
thereto.
25
EXHIBIT A
Leased Premises
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Map of Leased Property Omitted
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EXHIBIT B
Engineered Site Plan
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EXHIBIT C
Plans and Specifications for Base Building
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EXHIBIT D
LEASE COMMENCEMENT AGREEMENT
THIS LEASE COMMENCEMENT AGREEMENT, made this _______ day of
______________,199___ , by and between ▇▇▇▇ ▇▇/▇▇/ ▇▇▇▇▇▇ ASSOCIATES LIMITED
PARTNERSHIP ("Landlord") and INTERMEDIA COMMUNICATIONS INC. ("Tenant").
WITNESSETH:
WHEREAS, Landlord and Tenant have entered into that certain Lease Agreement
dated July ___, 1998, (the "Lease") for the premises located at ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Road, Konterra Business Campus, Prince George's County, Maryland (the
"Leased Premises"); and
WHEREAS, Landlord and Tenant wish to set forth their agreements as to the term
of the Lease, as well as certain other matters, all as more particularly set
forth below.
NOW, THEREFORE, in consideration of the Leased Premises as described in the
Lease and the covenants set forth therein, Landlord and Tenant agree as follows:
1. The "Commencement Date" for all purposes of the Lease is
___________, 1999.
2. The "Rent Commencement Date" for all purposes of the Lease is
___________, 1999.
3. The initial Lease Term shall expire on ___________, 2009.
IN WITNESS WHEREOF, the parties hereto have executed this Commencement
Agreement as of the day and year first above written.
LANDLORD: TENANT:
1111 ▇▇/▇▇/ ▇▇▇▇▇▇ ASSOCIATES INTERMEDIA COMMUNICATIONS, INC.
LIMITED PARTNERSHIP
By: ▇▇▇▇▇ Property Company, By:___________________________________
General Partner
______________________________________
By: ________________________________ Its:
Its: _______________________________
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EXHIBIT E
Rules and Regulations
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1. The delivery, shipping, loading and unloading of goods, wares,
merchandise, equipment, supplies, fixtures and all other items to and from the
Leased Premises will be subject to the rules and regulations Landlord may
promulgate from time to time with respect to deliveries and shipments.
2. All garbage and refuse will be kept in the kind of container
specified by Landlord, and will be placed outside of the Building for collection
in the manner, in such containers and at the times and places reasonably
specified by Landlord. Tenant will not burn any trash or garbage of any kind in
or around the Leased Premises.
3. No radio, speakers, television, phonograph or other sound or
similar device will be installed or operated in the Leased Premises without
Landlord's prior written approval. Tenant will prevent sounds emanating from the
Leased Premises from being heard outside the Leased Premises or otherwise
unreasonably disturbing or annoying other tenants.
4. The plumbing facilities will not be used for any purpose other
than that for which they are constructed. No foreign substance of any kind will
be thrown into the plumbing facilities. The expense of any breakage, stoppage
or damage resulting from a violation of this provision by Tenant or any of its
servants, agents, invitees, employees and/or licensees will be borne solely by
Tenant.
5. Tenant will not place a load upon the floor of the Leased
Premises exceeding the floor load per square foot area which the floor of the
Leased Premises has been designed to carry.
6. Tenant will not permit anyone to lodge, sleep or ▇▇▇▇ in the
Leased Premises. Tenant is responsible for all persons whom it invites and/or
admits to the Leased Premises and will be liable to Landlord for all acts of
such persons.
7. Landlord reserves to itself all rights not granted to Tenant
under this Lease, including, but not limited to, the following: (a) the right
to change the address of the Building, without liability to Tenant for so doing;
(b) the right to install; and (c) the right to grant to anyone the right to
conduct any particular business or undertaking in the Building.
8. Except as provided in Section 37 of the Lease, Tenant will not
attach or place awnings, antennas or other projections to the outside walls or
any exterior portion of the Building, without the prior written consent of
Landlord. No curtains, blinds, shades or screens shall be attached to or hung
in, or used in connection with, any window or door of the Leased Premises,
without the prior written consent of Landlord.
9. Tenant will not pile or place or permit to be placed any goods on
the sidewalks or parking lots in the front, rear or sides of the Building or in
a place in any manner so as to block said sidewalks, parking lots and loading
areas and/or not to do anything that directly or indirectly will take away any
of the rights of ingress or egress or of light from any other tenant of Landlord
in the Project.
10. Tenant, Tenant's servants, agents, invitees, employees and/or
licensees shall not park on, store on, or otherwise utilize any parking or
loading areas on the Real Property, except as shown on Exhibit A and then only
in the parking places designated by Landlord for such parking and in accordance
with such rules and regulations as Landlord may from time to time promulgate
with respect thereto.
11. No animals of any kind shall be brought into or kept in or about
the Project.
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