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OFFICE LEASE
BETWEEN
WGP ASSOCIATES, LLC,
A VIRGINIA LIMITED LIABILITY COMPANY
(AS LANDLORD)
AND
SAVVIS COMMUNICATIONS CORPORATION, A MISSOURI CORPORATION
(AS TENANT)
Section Page
1. PRINCIPAL TERMS 1
2. GENERAL COVENANTS 2
3. TERM 3
4. RENT 3
5. COMPLETION OR REMODELING OF THE PREMISES 3
6. OPERATING EXPENSES 3
7. SERVICES 3
8. QUIET ENJOYMENT 6
9. DEPOSIT 6
10. CHARACTER OF OCCUPANCY 7
11. MAINTENANCE, ALTERATIONS AND REENTRY BY LANDLORD8
12. ALTERATIONS AND REPAIRS BY TENANT 9
13. CONSTRUCTION LIENS 9
14. SUBLETTING AND ASSIGNMENT 10
15. DAMAGE TO PROPERTY 12
16. INDEMNITY TO LANDLORD 12
17. SURRENDER AND NOTICE 12
18. INSURANCE, CASUALTY, AND RESTORATION OF PREMISES 12
19. CONDEMNATION 13
20. DEFAULT BY TENANT 14
21. DEFAULT BY LANDLORD 16
22. SUBORDINATION AND ATTORNMENT 17
23. REMOVAL OF TENANT'S PROPERTY 18
24. HOLDING OVER: TENANCY MONTH-TO-MONTH 18
25. PAYMENTS AFTER TERMINATION 18
26. STATEMENT OF PERFORMANCE 19
27. MISCELLANEOUS 19
28. AUTHORITIES FOR ACTION AND NOTICE 21
29. PARKING 21
30. SUBSTITUTE PREMISES 22
31. BROKERAGE 22
32. COUNTERPARTS 22
33. ADDENDUM/EXHIBITS 22
1
<PAGE>
LEASE AGREEMENT
THIS LEASE, dated as of January 24, 2000, is by and between WGP ASSOCIATES, LLC,
a Virginia limited liability company ("Landlord") and SAVVIS COMMUNICATIONS
CORPORATION, a Missouri corporation ("Tenant").
W I T N E S S E T H :
1. PRINCIPAL TERMS. Capitalized terms, first appearing in quotations in
this Section, elsewhere in the Lease or any Exhibits, are definitions of such
terms as used in the Lease and Exhibits and shall have the defined meaning
whenever used.
1.1 "BUILDING": Worldgate Plaza II, 12851 Worldgate
Drive, Herndon, Virginia
1.2 "PREMISES": approximately 80,582 rentable
square feet located on the 5th,
6th, 7th, and 8th floors, which
comprise the entirety of the
Building
1.3 "INITIAL TERM": 10 years, 3 months
"Commencement Date": March 1, 2000
"Expiration Date": May 31, 2010
1.4 "BASE RENT": Annual Per Rentable
Period Square Foot Rate Monthly
------ ------------------- -------
Months 1-12: $25.85 $173,587.06 [See
Section 4]
Months 13-24: $26.68 $179,160.65
Months 25-36: $27.53 $184,868.54
Months 37-48: $28.41 $190,777.89
Months 49-60: $29.32 $196,821.54
Months 61-72: $31.24 $209,781.81
Months 73-84: $32.18 $216,094.06
Months 85-96: $33.15 $222,607.78
Months 97-108: $34.14 $229,255.79
Months 109-120: $35.16 $236,105.26
Months 121-122: $36.21 $243,156.19
1.5 OPERATING EXPENSES: Base Year: 2000
Pro Rata Share: 100%
1.6 DEPOSIT": $738,668.32 See Section 9
1.7 "PERMITTED USE": Primarily as general offices with
ancillary use for related uses in
accordance with Section 10
1.8 "GUARANTOR": Bridge Information Systems, Inc., a
Missouri corporation
1.9 PARKING: 322 spaces in the Parking Garage or
surface parking for the Building in
accordance with Section 29
1.10 LANDLORD'S NOTICE ADDRESS: WGP ASSOCIATES, LLC, c/o Miller
Global Properties, LLC, 4643 S.
Ulster Street, Suite 1500, Denver,
CO 80237, Attn: Donald E.
Spiegleman, Esq. or Mr. Paul Hogan
Facsimile: 303 694-0082 Telephone:
303 773-0369
<PAGE>
with a copy to Building Manager: [name, address and phone numbers to be provided by Landlord]
Facsimile: _____________________
Telephone: ____________________
1.11 RENT PAYMENT ADDRESS: WGP ASSOCIATES, LLC, c/o Miller
Global Properties, LLC, 4643 S.
Ulster Street, Suite 1500, Denver,
CO 80237
1.12 LANDLORD'S TAX I.D.: 84-1474051
1.13 TENANT'S NOTICE ADDRESS: Steven Gallant, Esq.
Vice President and General Counsel
Savvis Communications Corporation
717 Office Parkway
St. Louis, Mo. 63141
Facsimile: 314 468-7550
Telephone: 314 468 7517
with a copy to: Richard A. Cohn
Bryan Cave LLP
700 Thirteenth Street, N.W.
Washington, DC 20005-3960
Facsimile: 202 508-6200
Telephone: 202 508-6019
1.14 TENANT'S TAX I.D.: 43-1727675
1.15 LANDLORD'S BROKER: Charles E. Smith Real Estate
Services, L.P.
1.16 COOPERATING BROKER: Fred Ezra Company
1.17 ATTACHMENTS: [check if applicable]
x Addendum
x Work Letter
x Exhibit A - The Premises
x Exhibit A-1 - Building and
Plaza I
x Exhibit B - Real Property
x Exhibit C - Operating
Expenses
Exhibit D - [Intentionally
Deleted]
x Exhibit E - Rules and
Regulations
x Exhibit F - Janitorial
Specification
x Exhibit G - HVAC Rates
x Exhibit H - Parking
x Exhibit I - Generator,
Generator Fuel Tank and UPS
Locations
x Exhibit J - Subordination,
Non-Disturbance and
Attornment Agreement
2. GENERAL COVENANTS. Tenant covenants and agrees to pay Rent and perform
the obligations hereafter set forth and in consideration therefor Landlord
leases to Tenant the Premises as depicted on the plat attached as
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<PAGE>
EXHIBIT A, together with a non-exclusive right, subject to the provisions
hereof, to use exterior plazas, common areas, or other areas on the real
property legally described on EXHIBIT B and all other common areas of the
Building and the Building Complex (including, without limitation, parking areas,
sidewalks, lobby and corridors), (the "Real Property") and such other areas
designated by Landlord for the exclusive or non-exclusive use of the tenants of
the Building and Plaza I (as hereinafter defined), including the Parking Garage
("Common Areas"). The "Building" includes the building depicted and labeled as
Worldgate Plaza Tower II on the attached EXHIBIT A-1, inclusive of the 5th, 6th,
7th and 8th floors, the elevators and stairs serving such floors, and the
elevator lobby on the first floor, exclusive of the parking garage portion lying
within the footprint of the Building depicted on EXHIBIT A-1. The Building and
the adjacent building to be constructed as depicted and labeled on EXHIBIT A-1
as Worldgate Plaza Tower I ("Plaza I"), Real Property, Common Areas, and
appurtenances are hereinafter collectively sometimes called the "Building
Complex." The mechanical rooms constituting Common Areas on floors 5,6,7 and 8
of the Building shall be reserved to Landlord's use for Building operations and
for Tenant's use, not the use of third parties, and use of the roof is subject
to the provisions of the Addendum. The mechanical rooms constituting Common
Areas elsewhere in the Building shall be reserved for Landlord's use for
Building Complex operations (including permitting the use by Tenant and tenants
of Plaza I, subject to Landlord's control of access and use).
3. TERM. The Initial Term of the Lease commences at 12:01 a.m. on the
Commencement Date and terminates at 12:00 midnight on the Expiration Date (the
Initial Term together with any extensions thereof is herein referred to as the
"Term.").
4. RENT. Subject to the provisions below, commencing on the Commencement
Date and on the first day of each month thereafter, Tenant shall pay Base Rent
in the amount stated in Section 1.4, in advance without notice (all amounts,
including Base Rent, to be paid by Tenant pursuant to this Lease as the context
requires are sometimes referred to collectively as "Rent(s)"). Rents shall be
paid without set off, abatement, or diminution, at the address set forth in
Section 1.11 above, or at such other place as Landlord from time to time
designates in writing. Notwithstanding anything to the contrary set forth in
Section 1.4 above, Tenant's obligation to pay Base Rent for the Premises shall
be phased in on a floor by floor basis for the Premises in accordance with the
following: Tenant's obligation to pay Base Rent for the 5th, 7th and 8th floors
(calculated on the basis of $25.85 annually per rentable square foot) shall
commence on March 1, 2000; Tenant's obligation to pay Base Rent for the 6th
floor (calculated on the basis of $25.85 annually per rentable square foot)
shall commence on June 1, 2000 and thereafter Tenant shall pay Rent in
accordance with Section 1.4.
5. COMPLETION OR REMODELING OF THE PREMISES. Provisions regarding
Landlord's obligation to complete the Building and the Premises and regarding
the completion of tenant finish work in the Premises are set forth in a work
letter attached to this Lease (the "Work Letter"). "Initial Tenant Finish" means
the Premises in its as-is condition as modified by all work, if any, performed
by Landlord at its expense prior to the respective Delivery Dates in accordance
with the Work Letter. Except as provided in and subject to the Work Letter,
Landlord has no obligation for the completion or remodeling of the Premises.
Tenant will accept the Premises in its "as is" condition on the Delivery Date.
6. OPERATING EXPENSES. Tenant shall pay additional Rent in accordance with
EXHIBIT C attached hereto.
7. SERVICES.
7.1 Subject to the provisions below, Landlord agrees, without charge, in
accordance with standards reasonably determined by Landlord from time to time
for the Building consistent with the standards observed by operators of first
class office buildings in the northern Virginia market: (1) at all hours to
furnish running water at those points of supply for general use of tenants of
the Building; (2) during Ordinary Business Hours and such other times as may be
required by Tenant to furnish to interior Common Areas heated or cooled air (as
applicable), electrical current, janitorial services, and maintenance;
(3) during Ordinary Business Hours and such other times as may be required by
Tenant to furnish heated or cooled air to the Premises consistent with the
design capacity of the Building HVAC; (4) to furnish, subject to capacity of
building systems, unfiltered treated chilled water for use in Tenant's packaged
HVAC systems
3
<PAGE>
provided that such systems are approved by Landlord, including strainers,
pumping systems and controls; (5) to provide, during Ordinary Business Hours,
the general use of passenger elevators for ingress and egress to and from the
Premises (at least one such elevator shall be available at all times except in
the case of emergencies or repair); (6) to provide janitorial services for the
Premises in accordance with the attached EXHIBIT F (including window washing of
the outside of exterior windows and relamping and replacement of ballasts in
flourescent ceiling light fixtures in the Premises); and (7) to cause electric
current to be supplied to the Premises for Tenant's Standard Electrical Usage
(items (1) through (7) are collectively called "Services"). "Tenant's Standard
Electrical Usage" means electricity for normal office purposes including
fluorescent and incandescent lighting (including task and task ambient lighting
systems) and for normal office equipment, including duplicating (reproduction)
machines and personal computers (provided they do not require any additional
voltage, special electrical or HVAC requirements beyond the systems existing in
the Premises), and internal communications systems. "Ordinary Business Hours"
means 8:00 a.m. to 6:00 p.m. Monday through Friday and 8:00 a.m. to 1:00 p.m. on
Saturdays, Legal Holidays excepted. "Legal Holidays" mean New Year's Day, Martin
Luther King Day, Inauguration Day, Presidents' Day, Memorial Day, Independence
Day, Labor Day, Columbus Day, Veterans Day, Thanksgiving Day, Christmas Day, and
such other national holidays hereafter established by the United States
Government. The security system shall be operative at all times except as
required for repair or maintenance and shall restrict access (in accordance with
the security system specifications) to the main Building lobby and access to
individual floors from the elevator on such days and at such hours as Tenant may
request by notice to Landlord; Tenant shall have access to the Building 24 hours
a day, 7 days a week (subject to the provisions of this Lease). Any security
system or other security measures (collectively "security") that Landlord may
undertake are for protection of the physical structures only and shall not be
relied upon by Tenant, its agents, employees or invitees to protect their
person, or property, including Tenant's Property. Tenant shall not do anything
to circumvent or allow others to circumvent security. Tenant shall have a right
to install its own security system in the Building provided that such system is
installed in such a manner as to permit the continued operation of Landlord's
security and life safety systems or is a substitute security system (for the
Building and Premises and Tenant's allocated portion of parking level four of
the parking garage, as referred to in Section 29, but excluding the security
system for the main access controls for the parking garage), reasonably approved
by Landlord, that interfaces with Landlord's life safety systems to permit their
continued operation. Tenant shall provide Landlord with keys, access cards or
access numbers for any security system installed by Tenant to permit Landlord to
have access to the Building and Premises. If a substitute security system is
used, Tenant shall deliver to Landlord, at the expiration or earlier termination
of the Lease, all manuals and other equipment required for operation of the
system and leave in place all cabling and related equipment installed in the
Building. Landlord shall not be liable for any failure of any security to
operate or for any breach or circumvention of the security by others, and
Landlord makes no representations or warranties concerning the installation,
performance and monitoring of the security or that it will detect or avert
occurrences which any such security is intended or expected to detect or avert.
Landlord shall maintain the security which it elects to install in good repair.
7.2 Electricity for the Building, including the entirety of the Premises
shall be separately metered and paid by Tenant upon billing by service provider
of Landlord (based on the actual costs incurred to the provider, without markup
or profit to Landlord) and electricity shall not be included in amounts required
to be paid by Tenant as Operating Expenses under EXHIBIT C. In addition, Tenant
shall be responsible for and shall pay promptly, directly to the appropriate
supplier, all charges for telephone, interior landscape maintenance, and other
materials and services furnished directly to Tenant or the Premises, or used by
Tenant in or about the Premises during the Term, together with any taxes
thereon. Tenant shall have the right to contract for fiber optic cable to be
installed, at Tenant's expense, from the street right-of-way to the Premises
using existing conduits installed by Landlord for use of this Building or by
installation of additional conduits, subject to Landlord's reasonable approval
based on the capacity, design and location of such conduits. "Excess Usage"
means any usage of electricity (1) during other than Ordinary Business Hours;
(2) in an amount in excess of Tenant's Standard Electrical Usage; or (3) for
Special Equipment or for standard HVAC services during other than Ordinary
Business Hours. "Special Equipment" means (a) any equipment consuming more than
0.5 kilowatts at rated capacity, (b) any equipment requiring a voltage other
than 120 volts, single phase, or (c) equipment that requires the use of
self-contained HVAC units. If Tenant desires Excess Usage, Landlord will use
reasonable efforts to supply the same. Tenant shall reimburse Landlord for all
Landlord's costs of providing services for Excess Usage, including costs for
materials, additional wear and tear on equipment, utilities, and labor
(including fringe and overhead costs). Computation of such costs will be made by
Landlord's engineer, based on his engineering survey of Tenant's Excess Usage.
4
<PAGE>
Tenant shall reimburse Landlord for all additional costs, if any, incurred by
Landlord as a result of Tenant's installation or use of Special Equipment, other
than electrical costs (which shall be included in the metered electricity), as
reasonably determined by Landlord's engineer, including all costs of
supplementing the Building HVAC Systems and/or extending or supplementing any
electrical service, as Landlord determines is necessary, as a result of such
Special Equipment. "Special Equipment" means (a) any equipment requiring
modification or supplementation of the Building HVAC or electrical systems, (b)
any equipment requiring a voltage other than 120 volts, single phase, or (c)
equipment that requires the use of self-contained HVAC units. If Tenant desires
use of Building services after Ordinary Business Hours, Tenant shall give
Landlord such prior notice as is reasonably required to arrange for such
after-hours services; provided, however, that only 2 hours prior notice shall be
required if such notice is given during Ordinary Business Hours during Monday
through Friday (or such lesser notice as is required so long as after hours HVAC
is under the control of the Charles E. Smith Environmental Control Center,
pursuant to the applicable Building engineering services agreement). Charges for
Building HVAC use after Ordinary Business Hours, to be used in determining the
charges referred to above, are set forth on the attached EXHIBIT G. Tenant shall
also reimburse Landlord for all costs of supplementing the Building HVAC System
and/or extending or supplementing any electrical service, as Landlord determines
is necessary, as a result of Tenant's Excess Usage. Prior to installation or use
of Special Equipment or operation of the Premises for extended hours on an
ongoing basis, Tenant shall notify Landlord of such intended installation or use
and obtain Landlord's consent. Tenant may request that Landlord install at
Tenant's cost a check meter and/or flow meter to determine the cost of Tenant's
Excess Usage. Tenant shall also pay the cost of replacing light bulbs and/or
tubes and ballast used in all lighting in the Premises other than that provided
by Landlord to all tenants of the Building.
7.3 If Tenant requires janitorial services other than those included as
standard Services, Tenant shall separately pay for such services monthly upon
billings by Landlord, or Tenant shall, at Landlord's option, separately contract
for such services with the same company used by Landlord to furnish janitorial
services to the Building.
7.4 Landlord may discontinue, reduce, or curtail Services (either
temporarily or permanently) when necessary due to accident beyond the reasonable
control of Landlord, repairs, strikes, lockouts, Applicable Laws, or any other
happening beyond Landlord's reasonable control. Landlord is not liable for
damages to Tenant or any other party as a result of any interruption, reduction,
or discontinuance of Services (either temporary or permanent) nor shall the
occurrence of any such event be construed as an eviction of Tenant, cause or
permit an abatement, reduction or setoff of Rent, or operate to release Tenant
from Tenant's obligations; provided, however, that notwithstanding the
foregoing, if the Premises should become unsuitable for Tenant's use as a
consequence of a cessation of Services (other than an interruption resulting
from a fire or other casualty, which shall be governed by the provisions of
Section 18) (excluding, however, acts or omissions of Tenant or Tenant's Agents,
as defined below) and persists for more than three (3) consecutive business days
(an "Interfering Event"), then Tenant shall be entitled to an equitable
abatement of Rent to the extent of the interference with Tenant's use of the
Premises occasioned thereby from the date of the Interfering Event until the
date the Services are restored to the Premises. If Tenant continues to use any
part of the Premises to conduct its business, the Rent will only abate for the
untenantable part not used. Should any
5
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malfunction of the Building improvements or facilities required to be maintained
by Landlord occur that affect such Services, Landlord shall repair such
malfunction as soon as reasonably practicable with reasonable diligence and in
the event of the discontinuance, reduction or curtailment of Services for any
reason, Landlord shall use commercially reasonable efforts to have such services
restored as soon as reasonably practicable.
7.5 Tenant shall promptly notify Landlord of any accidents or defects in
the Building of which Tenant has actual knowledge, including defects in pipes,
electric wiring, and HVAC equipment, and of any condition which is likely to
cause injury or damage to the Building or any person or property therein.
8. QUIET ENJOYMENT. So long as an Event of Default has not occurred and
which is continuing, Tenant is entitled to the quiet enjoyment and peaceful
possession of the Premises subject to the provisions of this Lease. Landlord
shall under no circumstances be held responsible for restriction or disruption
of access to the Building from public streets caused by construction work or
other actions taken by or on behalf of governmental authorities, or for actions
taken by other tenants (their employees, agents, visitors, contractors or
invitees), or any other cause not entirely within Landlord's direct control, and
same shall not constitute a constructive eviction of Tenant nor give rise to any
right or remedy of Tenant against Landlord of any nature or kind. This covenant
of quiet enjoyment is in lieu of any covenant of quite enjoyment provided or
implied by law, and Tenant expressly waives any such other covenant of quiet
enjoyment to the extent broader than the covenant contained in this Section.
9. DEPOSIT.
9.1 By not later than 10 days following the delivery by Landlord of the
fully executed Lease to Tenant, Tenant shall deposit, and will keep on deposit
at all times during the Initial Term, with Landlord the Deposit as security for
the payment and performance of Tenant's obligations under this Lease. If, at any
time, after an Event of Default by Tenant, Landlord has the right to use the
Deposit, or so much thereof as necessary, in payment of Rent, in reimbursement
of any expense incurred by Landlord, and in payment of any damages incurred by
Landlord by reason of such Event of Default. In such event, Tenant shall on
demand of Landlord forthwith remit to Landlord a sufficient amount in cash to
restore the Deposit to the original amount. If the entire Deposit has not been
utilized, the remaining amount will be refunded to Tenant or to whoever is then
the holder of Tenant's interest in this Lease, without interest, within 60 days
after expiration of the Initial Term. Landlord may deliver the Deposit (or
rights to the Deposit account, as referred to above) to any purchaser of
Landlord's interest in the Premises and Landlord shall be discharged from
further liability therefor following actual delivery of such Deposit and
assumption by the transferee of Landlord's obligations with respect thereto.
Tenant agrees that if a Mortgagee succeeds to Landlord's interest in the
Premises by reason of foreclosure or deed in lieu of foreclosure, Tenant has no
claim against the Mortgagee for the Deposit or any portion thereof unless such
Mortgagee has actually received the same from Landlord. If claims of Landlord
exceed the Deposit, Tenant shall remain liable for the balance.
9.2 Subject to the provisions of Section 9.4, if there is no Event of
Default by Tenant as of the end of the end of the 36th month following the
Commencement Date or circumstances which with the mere passage of time or giving
of notice would constitute an Event of Default following such date, the Deposit
shall be reduced by $184,667.08; if there is Event of Default by Tenant as of
the end of the end of the 36th month following the Commencement Date or
circumstances which with the mere passage of time or giving of notice would
constitute an Event of Default, such reduction shall occur thereafter only upon
the curing of such Event of Default or circumstances, as applicable. The
remaining Deposit shall then be held for the balance of the Initial Term until
the Expiration Date (as provided in Section 1.3), subject to application in
accordance with this Section.
9.3 The Deposit shall be in the form of immediately available funds
deposited in a separate interest-bearing account in Landlord's name, which
interest shall be considered additional Deposit or, alternatively Tenant shall
have the right to request Landlord's consent to the substitution of an
irrevocable transferable letter of credit for the Deposit and Landlord shall not
withhold consent to such substitution subject to such letter of credit being
issued by a lending institution approved by Landlord and the letter of credit
being in a form approved by Landlord ("Letter of
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Credit"), such approval not to be unreasonably withheld, conditioned or delayed,
in the amount of the Deposit, subject to reduction as provided above. If the
Letter of Credit would otherwise expire prior to the Expiration Date, Tenant
shall present Landlord with an extension or renewal of the initial Letter of
Credit, or a substitute Letter of Credit in the same form, not later than 60
days prior to the expiration date of such initial Letter of Credit, from a
lending institution subject to Landlord's reasonable approval; such extension,
renewal or substitute Letter of Credit shall be effective no later than the day
prior to the expiration of the initial Letter of Credit and shall continue in
effect for not less than the period ending with the Expiration Date and shall be
in the amount provided above. Tenant agrees that in an Event of Default by
Tenant (as defined in Section 20), Landlord shall have a right to present the
Letter of Credit (or the renewal, extension or substitute) for payment, with
amounts received to be held and applied in accordance with this Section. Any
failure of Tenant to provide Landlord with an extension, renewal or substitute
Letter of Credit, as required hereunder, shall be deemed an Event of Default
under the Lease and Landlord shall have a right to present the Letter of Credit
in accordance with the foregoing provision. If the Letter of Credit has not been
presented for payment in accordance with this Section on or before the
Expiration Date, Landlord shall return the Letter of Credit to Tenant within
thirty (30) days after the Expiration Date. Tenant agrees that in the event of
any assignment or this Lease or mortgage, Landlord shall have the right to
transfer the Letter of Credit or substitute to the assignee or mortgagee (and
Tenant shall pay any costs or fees charged by the issuer to permit such
transfer), and if the Letter of Credit has been transferred as provided above,
Tenant shall look solely to such transferee for the return of the Letter of
Credit (or substitute), provided that Landlord shall give written notice to
Tenant of transfer of Landlord's interest resulting in transfer of the Letter of
Credit and the transferee shall assume the obligation to return the same to
Tenant in accordance with this Lease. Landlord shall deliver the then-current
effective Letter of Credit to Tenant upon receipt of any conforming renewal or
substitute Letter of Credit provided in accordance with this Paragraph and
cooperate with the issuing bank to effect the release of such then-current
effective Letter of Credit.
9.4 In accordance with Paragraph 6 of the Addendum, the obligations of
Tenant are guaranteed by the Guarantor, Bridge Information Systems, Inc., a
Missouri corporation, pursuant to the terms of the Guaranty. The Guaranty
provides for the ability to substitute Tenant's parent corporation, Savvis
Communications Corporation, a Delaware corporation, as Guarantor, subject to
increasing the amount of the Deposit to a total of $3,196,419.30 in the form of
the Letter of Credit referred to above; the effective date of such substitution
is referred to as the Substitution Date. In such event, the following provision
shall be applicable, in substitution for the provisions of Section 9.2 above:
(i) if there is no Event of Default (or circumstances which with the mere
passage of time or giving of notice would constitute an Event of Default) by
Tenant as of the end of the 12th month following the Substitution Date or
circumstances which with the mere passage of time or giving of notice would
constitute an Event of Default following such date, the Deposit shall be reduced
by $351,107.29; (ii) likewise, on each anniversary thereafter of the
Substitution Date through and including the 7th anniversary, if there is no
Event of Default (or circumstances which with the mere passage of time or giving
of notice would constitute an Event of Default) as of such date, the Deposit
shall be additionally reduced by $351,107.29 (however, in no event shall such
reductions result in reduction below $738,668.32); (iii) if there are
circumstances which with the mere passage of time or giving of notice would
constitute an Event of Default as of the respective anniversary of the
Substitution Date, the respective reduction shall occur thereafter only upon the
curing of such Event of Default or circumstances, as applicable; (iv) the
remaining Deposit as of the 7th anniversary of $738,668.32 shall then be held
until the Expiration Date of the Initial Term, subject to application in
accordance with this Section. The reduction of the amount of the Deposit shall
be effected by amendment of the then-effective Letter of Credit (by amendment
executed by the issuer and Landlord) or by Tenant's substitution of a substitute
Letter of Credit in the respective reduced amount (in which event Landlord shall
surrender the Letter of Credit being held as of the substitution upon receipt of
the substitute).
10. CHARACTER OF OCCUPANCY. Tenant shall occupy the Premises for the
Permitted Use and for no other purpose, and use it in a careful, safe, and
proper manner and pay on demand for any damage to the Premises caused by misuse
or abuse by Tenant, Tenant's agents or employees, or any other person entering
upon the Premises under express or implied invitation of Tenant (collectively,
"Tenant's Agents"). The term "Permitted Use" shall mean: general office use for
administrative, clerical, and professional office purposes and the operation of
internet and telecommunications services and Collocation Services (as defined in
Section 14.7) (collectively, the "Primary Use") and for activities ancillary
thereto (the "Ancillary Uses") provided that Ancillary Uses shall not be the
primary use of
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the Premises, are permitted by Applicable Laws (as hereinafter defined), and are
expressly approved by Landlord, which approval shall not be unreasonably
withheld if such uses are consistent with first class suburban general office
building uses and so long as in keeping with Building's first-class quality and
allowed under PDC zoning applicable to the Building. Tenant shall be responsible
for obtaining any approvals or permits required for the Ancillary Uses under
Applicable Laws and the Declaration. Tenant, at Tenant's expense, shall comply
with all applicable federal, state, city, quasi-governmental and utility
provider laws, codes, rules, and regulations now or hereafter in effect
("Applicable Laws") which impose any duty upon Landlord or Tenant with respect
to the occupation or alteration of the Premises. Tenant shall not commit or
permit waste or any nuisance on or in the Premises. Tenant agrees not to store,
keep, use, sell, dispose of or offer for sale in, upon or from the Premises any
article or substance prohibited by any insurance policy covering the Building
Complex nor shall Tenant keep, store, produce or dispose of on, in or from the
Premises or the Building Complex any substance which may be deemed an infectious
waste or hazardous substance under any Applicable Laws, except customary office
and cleaning supplies or supplies customarily associated with the Primary Use of
the Premises that are disclosed to Landlord and are stored and used in
accordance with Applicable Laws and applicable industry standards. Landlord is
responsible for complying with Applicable Laws relating to the Building
(excluding the Premises) and its Common Areas, including Title III of the
Americans with Disabilities Act of 1990 (the "ADA") and the costs of such
compliance with existing Applicable Laws as of the date hereof will be paid by
Landlord and will not be charged back to Tenant. The method and timing of
compliance will be within Landlord's discretion. Tenant is responsible for
compliance with all existing and any new Applicable Laws, including ADA, within
the Premises. Landlord will include Landlord's future compliance costs due to
changes in or new Applicable Laws as an Operating Expense in accordance with
Exhibit C. To the extent that Tenant is responsible for compliance with
Applicable Laws, Tenant shall have the right to contest by appropriate
proceedings diligently conducted in good faith, in the name of Tenant or, with
the prior written consent of Landlord, in the name of Landlord, or both, the
validity or application of any Applicable Laws of any nature affecting Tenant or
its use of the Premises. If compliance with any of such Applicable Laws legally
may be delayed pending the prosecution of any proceeding, without incurring any
lien, charge or liability of any kind against the Building and/or the Premises,
or against Landlord's interest in the Building and/or the Premises or sale of
the Building and/or the Premises, and without subjecting Tenant or Landlord to
any liability, civil or criminal, interest or penalty for failure to comply,
Tenant may delay compliance until the final determination of the proceeding.
11. MAINTENANCE, ALTERATIONS AND REENTRY BY LANDLORD.
11.1 Landlord will (i) make repairs and replacements to HVAC, mechanical,
life safety and electrical systems in the Premises (to the extent such systems
are Building standard) deemed necessary by Landlord for normal operations of the
Building Complex; and (ii) provide upkeep, maintenance, and repairs to all
Common Areas of the Building Complex, including without limitation the Parking
Facilities, and all structural elements of the Building, including without
limitation the roof, exterior walls (including windows and glass), interior
bearing walls, foundations, footings, and all exterior surfaces of the Building.
Landlord shall perform its obligations under this Section 11.1 in a manner
consistent with other first class office buildings in the northern Virginia area
and in accordance with Applicable Laws. Except as provided in this Section or
otherwise expressly required in this Lease, Landlord is not required to make
improvements or repairs to the Premises during the Term.
11.2 Landlord or Landlord's agents may at any time enter the Premises
without notice in case of emergency and for performance of janitorial services
and in all other instances after reasonable prior oral or written notice to
Tenant and subject to compliance with Tenant's reasonable security measures
(which may include an escort) for examination and inspection, or to perform, if
Landlord elects, any obligations of Tenant which Tenant fails to perform or such
cleaning, maintenance, janitorial services, repairs, replacements, additions, or
alterations as Landlord deems necessary for the safety, improvement, or
preservation of the Premises or other portions of the Building Complex or as
required by Applicable Laws. Landlord or Landlord's agents may also show the
Premises to prospective purchasers, Mortgagees and during the last 12 months of
the Term, to prospective tenants, upon not less than 48 hours prior notice. Any
such reentry does not constitute an eviction or entitle Tenant to abatement of
Rent. Landlord may make such alterations or changes in other portions of the
Building Complex as Landlord desires so long as such alterations and
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changes do not unreasonably interfere with Tenant's occupancy of the Premises or
use of the Common Areas or conflict with the other provisions of this Lease.
Landlord may use the Common Areas and one or more street entrances to the
Building Complex as may be necessary in Landlord's judgment to complete such
work.
12. ALTERATIONS AND REPAIRS BY TENANT.
12.1 Tenant shall not make any alterations to the Premises during the Term,
including installation of equipment or machinery which requires modifications to
existing electrical outlets or increases Tenant's usage of electricity beyond
Tenant's Standard Electrical Usage (collectively "Alterations") without in each
instance first obtaining the written consent of Landlord, which consent shall
not be unreasonable withheld, conditioned or delayed. Landlord's consent or
approval of the plans, specifications and working drawings for any Alterations
shall not constitute any warranty or representation by Landlord (and shall not
impose any liability on Landlord) as to their completeness, design sufficiency,
or compliance with Applicable Laws; provided, however, Tenant may, without
Landlord's consent, perform interior non-structural Alterations not involving
modifications to the Base Building plumbing, electrical, mechanical or life
safety systems (as distinguished from the portions of such systems located
within the Premises that are installed by Tenant as Initial Tenant Finish)
provided the cost of any particular Alterations (taking into account together
all Alterations being made as part of a common or phased plan) does not exceed
Seventy Five Thousand Dollars ($75,000)(such cost limit shall not, however, be
applicable to Alterations on the 6th floor). Tenant shall at its cost: pay all
engineering and design costs incurred by Landlord as to all Alterations, obtain
all governmental permits and approvals required, and cause all Alterations to be
completed in compliance with Applicable Laws and requirements of Landlord's
insurance. All such work relating to Alterations shall be performed in a good
and workmanlike manner, using new materials and equipment at least equal in
quality to the Initial Tenant Finish. All Alterations, repair and maintenance
work performed by Tenant shall be done at Tenant's expense by Landlord's
employees or, with Landlord's prior consent, which shall not be unreasonably
withheld, conditioned or delayed, by other persons requested by Tenant; however,
if such work is not performed by Landlord's employees, Tenant shall pay Landlord
a supervisory fee upon receipt of an invoice. If Landlord authorizes such
persons to perform work, Tenant shall deliver to Landlord prior to commencement
certificates issued by insurance companies qualified to do business in the state
in which the Premises are located, evidencing that worker's compensation, public
liability insurance, and property damage insurance (in amounts, with companies
and on forms satisfactory to Landlord) are in force and maintained by all
contractors and subcontractors engaged to perform such work. All liability
policies shall name Landlord, Building Manager, and Mortgagee as additional
insureds. Each certificate shall provide that the insurance may not be canceled
or modified without 10 days' prior written notice to Landlord and Mortgagee.
Landlord also has the right to post notices in the Premises in locations
designated by Landlord stating that Landlord is not responsible for payment for
such work and containing such other information as Landlord deems necessary. All
such work shall be performed in a manner which does not unreasonably interfere
with the performance of Landlord's rights and obligations under this Lease, or
impose additional expense upon Landlord in the operation of the Building
Complex.
12.2 Tenant shall keep the Premises in as good order, condition, and repair
and in an orderly state, as on the Commencement Date, loss by fire or other
casualty or ordinary wear excepted.
12.3 All Alterations, including partitions, paneling, carpeting, drapes or
other window coverings, and light fixtures (but not including movable office
furniture, equipment and other property not permanently attached to the
Building), are deemed a part of the real estate and the property of Landlord and
remain upon and be surrendered with the Premises at the end of the Term, whether
by lapse of time or otherwise, unless Landlord notifies Tenant no later than 15
days prior to the end of the Term that it elects to have Tenant remove all or
part of such Alterations, and in such event, Tenant shall at Tenant's expense
promptly remove the Alterations specified and restore the Premises to its prior
condition, reasonable wear and tear excepted.
13. CONSTRUCTION LIENS. Tenant shall pay for all work done on the
Premises by Tenant or at its request (other than the Initial Tenant Finish) of a
character which may result in liens on Landlord's or Tenant's interest and
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Tenant will keep the Premises free of all construction liens, and other liens on
account of such work. Tenant indemnifies, defends, and saves Landlord and all
Mortgagees harmless from all liability, loss, damage, or expenses, including
attorneys' fees, on account of any claims of laborers, materialmen or others for
work performed or for materials or supplies furnished to Tenant or persons
claiming under Tenant. If any lien is recorded against the Premises or Building
or any suit affecting title thereto is commenced as a result of such work, or
supplying of materials, Tenant shall cause such lien to be removed of record
within 10 days after notice from Landlord. If Tenant desires to contest any
claim, Tenant must either arrange for release of such lien and substitution of a
bond or other collateral (in accordance with Applicable Laws) or furnish
Landlord adequate security of at least 150% of the amount of the claim, plus
estimated costs and interest and, if a final judgment establishing the validity
of any lien is entered, Tenant shall immediately pay and satisfy the same. If
Tenant fails to proceed as aforesaid, Landlord may pay such amount and any
costs, and the amount paid, together with reasonable attorneys' fees incurred,
shall be immediately due Landlord upon notice.
14. SUBLETTING AND ASSIGNMENT.
14.1 Except as provided in Section 14.7, Tenant shall not sublet any part
of the Premises nor assign or otherwise transfer this Lease or any interest
herein (sometimes referred to as "Transfer," and the subtenant or assignee may
be referred to as "Transferee") without the consent of Landlord first being
obtained, which consent will not be unreasonably withheld, conditioned or
delayed provided that: (1) Tenant complies with the provisions of Section 14.4;
(2) Landlord declines to exercise its rights under Section 14.3; (3) the
Transferee is engaged in a business and the portion of the Premises will be used
for the Permitted Use in a manner which is in keeping with the then standards of
the Building and does not conflict with any exclusive use rights granted to any
other tenant of the Building Complex; (4) the Transferee has reasonable
financial worth in light of the responsibilities involved; (5) Tenant is not in
default at the time it makes its request; (6) the Transferee is not a
governmental or quasi-governmental agency; and (7) the Transferee is not a
tenant or currently negotiating a lease with Landlord in any building owned by
Landlord in the metropolitan area of the Building Complex (including the
Building Complex). Transfer includes a sale by Tenant of substantially all of
its assets or stock if Tenant is a publicly traded corporation, a merger of
Tenant with another corporation, the transfer of 49% or more of the stock in a
corporate tenant whose stock is not publicly traded, or transfer of 49% or more
of the beneficial ownership interests in a partnership or limited liability
company tenant. If any Alterations to the Premises or the Common Areas are
required by Applicable Laws in connection with such Transfer or the particular
business of such Transferee, such Alterations shall be subject to the prior
approval of Landlord (which approval shall not be unreasonably withheld) and
Tenant shall bear the cost of such Alterations.
14.2 Following any Transfer in accordance with this Section 14, Landlord
may, during the continuance of an Event of Default by Tenant, collect rent from
the Transferee or occupant and apply the net amount collected to the Rent, but
no Transfer or collection will be deemed an acceptance of the Transferee or
occupant as Tenant or release Tenant from its obligations. Consent to a Transfer
shall not relieve Tenant from obtaining Landlord's consent to any other
Transfer. Notwithstanding Landlord's consent to a Transfer, Tenant shall
continue to be primarily liable for its obligations. If Tenant collects any rent
or other amounts from a Transferee in excess of the Rent (after deduction of the
reasonable costs of such Transfer) for any monthly period, Tenant shall pay
Landlord fifty percent (50%) of the excess monthly, as and when received.
14.3 Notwithstanding the above (and except for a Transfer permitted under
Section 14.7), if Tenant requests Landlord's consent to sublet 49% or more of
the Premises for all or substantially all of the remainder of the then-current
Term of the Lease or assign Tenant's interest in the Lease, Landlord may refuse
to grant such consent in its sole discretion and terminate this Lease as to the
portion of the Premises with respect to which such consent was requested;
provided, however, if Landlord does not consent and elects to terminate the
Lease as to such portion, Tenant may within 15 days after notice from Landlord
to this effect withdraw Tenant's request for consent. If such termination
occurs, it shall be effective on the date designated in a notice from Landlord
and shall not be more than 30 days following such notice.
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14.4 Tenant must notify Landlord at least 30 days prior to the desired date
of the Transfer ("Tenant's Notice"), excluding a Transfer permitted under
Section 14.7. Tenant's Notice shall describe the portion of the Premises to be
transferred and the terms and conditions. Landlord has, without obligation, 15
days following receipt of Tenant's Notice to (i) propose a subtenant for such
space (which subtenant shall be subject to reasonable approval of Tenant) or
(ii) exercise its rights pursuant to Section 14.3 if Tenant's Notice discloses
that 49% or more of the Premises is involved; provided, however, that Landlord's
option in clause (i) shall not be applicable until 24 months following the
Commencement Date so long as the Transfers are subleases for a period not to
exceed 36 months which which do not involve more than 33% of the Premises in the
aggregate. If the space covered by Tenant's Notice is subleased to a sublessee
proposed by Landlord, rent and other sums due from the subtenant will be paid to
Tenant directly and Landlord has no responsibility for the performance by such
subtenant of its obligations under its sublease with Tenant. If Landlord does
not exercise its rights under clause (i) or clause (ii) within 15 days after
receipt of Tenant's Notice, Landlord shall be deemed to have waived its rights
under those clauses with respect to the proposed transaction and Tenant shall be
free to sublet the specified portion of the Premises to any third party on terms
substantially identical to those described in Tenant's Notice, subject to
Landlord's consent as set forth above. If Tenant does not sublet such portion of
the Premises within 180 days following Landlord's notice to Tenant, Tenant must
reoffer the Premises to Landlord in accordance with the provisions hereof prior
to subleasing to a third party.
14.5 All documents utilized by Tenant to evidence a Transfer are subject to
approval by Landlord. Tenant shall pay Landlord's reasonable expenses, including
reasonable attorneys' fees, of determining whether to consent and in reviewing
and approving the documents. Tenant shall provide Landlord with such information
as Landlord reasonably requests regarding a proposed Transferee, including
financial information.
14.6 If a trustee or debtor in possession in bankruptcy is entitled to
assume control over Tenant's rights under this Lease and assigns such rights to
any third party notwithstanding the provisions hereof, the rent to be paid by
such party shall be increased to the current Base Rent (if greater than that
being paid for the Premises) which Landlord charges for comparable space in the
Building as of the date of such third party's occupancy. If Landlord is entitled
under the Bankruptcy Code to "Adequate Assurance" of future performance of this
Lease, the parties agree that such term includes the following:
(1) Any assignee must demonstrate to Landlord's reasonable satisfaction a
net worth (as defined in accordance with generally accepted accounting
principles consistently applied) at least as large as the net worth of Tenant on
the Commencement Date [increased by 4%, annually, for each year thereafter
through the date of the proposed assignment] or other equivalent financial
capacity. Tenant's financial condition was a material inducement to Landlord in
executing this Lease.
(2) The assignee must assume and agree to be bound by the provisions of
this Lease.
14.7 Notwithstanding anything to the contrary contained hereinabove but
subject to Section 14.2 and provided that the conditions of clauses (3) and (5)
of Section 14.1 are met, Tenant may, without obtaining Landlord's prior written
consent, assign or sublease all or any portion of the Premises to the following
parties on the following conditions: (1) any subsidiary or affiliate in which
Tenant has, directly or indirectly, an ownership interest of more than 50%; (ii)
any direct or ultimate parent of Tenant; (iii) any subsidiary or affiliate in
which Tenant's parent owns, directly or indirectly, by means of an ownership
interest of more than 50%; or (iv) any corporation into which Tenant may be
merged or consolidated or which purchases all or substantially all of the assets
or stock of Tenant provided that the resulting corporation has a net worth at
least equal to Tenant's net worth as of the date hereof. A sale or transfer of
stock in Tenant pursuant to a public offering, including publicly traded stock
or Tenant, shall be permitted without obtaining Landlord's prior written
consent. As soon as practicable prior to the effective date of a transaction
permitted under this Section 14.7, Tenant will provide Landlord with
documentation evidencing such transaction and such other evidence as Landlord
may reasonably require to establish that such transaction falls within the terms
and provisions of this Section. Furthermore, Tenant may allow employees of
companies to whom Tenant is providing products or services (including the
maintenance
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and operation of computer servers for such companies) or with which Tenant is
collaborating in the development or provision of products or services
(collectively referred to as "Collocation Services") to work in the Premises
without Landlord's consent and without being deemed to have sublet any portion
of the Premises, so long as such employees do not occupy space which is
separated from that occupied by Tenant by demising walls and the number of such
employees whose primary place of employment is the Premises does not exceed ten
percent (10%) of the total number of persons regularly occupying the Premises.
15. DAMAGE TO PROPERTY. Tenant agrees Landlord is not liable for any injury
or damage, either proximate or remote, occurring through or caused by fire,
water, steam, or any repairs, alterations, injury, accident, or any other cause
to the Premises, to any furniture, fixtures, Tenant improvements, or other
personal property of Tenant kept or stored in the Premises, or in other parts of
the Building Complex, whether by reason of the negligence or default of
Landlord, other occupants, any other person, or otherwise; and the keeping or
storing of all property of Tenant in the Premises and Building Complex is at the
sole risk of Tenant.
16. INDEMNITY TO LANDLORD.
16.1 Tenant agrees to indemnify, defend, and hold Landlord and Building
Manager harmless from all liability, costs, or expenses, including attorneys'
fees, on account of damage to the person or property of any third party,
including any other tenant in the Building Complex, to the extent caused by the
negligence or breach of this Lease by the Tenant or Tenant's Agents.
16.2 Tenant shall maintain throughout the Term a commercial general
liability policy, including protection against death, personal injury and
property damage, issued by an insurance company qualified to do business in the
state in which the Premises are located, with a single limit of not less than
$1,000,000.00. Such policy shall name Landlord, Building Manager, and Mortgagee
as additional insureds, be primary to any other similar insurance of such
additional insureds, and provide that it may not be cancelled or modified
without at least 20 days' prior notice to Landlord and Mortgagee. The minimum
limits of such insurance do not limit the liability of Tenant hereunder. Prior
to occupancy of the Premises, and prior to expiration of the then-current
policy, Tenant shall deliver certificates evidencing that insurance required
under this Lease is in effect.
16.3 Landlord agrees to indemnify, defend, and hold Tenant harmless from
all liability, costs, or expenses, including attorneys' fees, on account of
damage to the person or property of any third party (excluding Tenant's Agents)
including any other tenant in the Building Complex, to the extent caused by the
negligence or breach of this Lease by Landlord, subject to the provisions of
Section 18.6
17. SURRENDER AND NOTICE. Upon the expiration or other termination of this
Lease, Tenant shall immediately quit and surrender to Landlord the Premises
broom clean, in good order and condition, ordinary wear and tear and loss by
fire or other casualty excepted, and Tenant shall remove all of its movable
furniture and other effects, all telephone cable and related equipment in the
Building installed for Tenant, and such Alterations, as Landlord requires. If
Tenant fails to timely vacate the Premises as required, Tenant is responsible to
Landlord for all resulting costs and damages of Landlord, including any amounts
paid to third parties who are delayed in occupying the Premises.
18. INSURANCE, CASUALTY, AND RESTORATION OF PREMISES.
18.1 Landlord shall maintain property insurance for the Building Complex,
the shell and core of the Building and the Premises in such amounts, from such
companies, and on such terms and conditions, sufficient to prevent Landlord from
being a coinsurer under its policy of insurance, for property loss equal to the
full replacement value of the Building Complex and public liability insurance in
an amount customary for first class office properties in the Northern Virginia
area.
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18.2 Tenant shall maintain throughout the Term insurance coverage at least
as broad as ISO Special Form Coverage against risks of direct physical loss or
damage (commonly known as "all risk") for the full replacement cost of Tenant's
property and betterments in the Premises, including tenant finish in excess of
the Initial Tenant Finish.
18.3 If the Building is damaged by fire or other casualty which renders the
Premises wholly untenantable and the damage is so extensive that an architect
selected by Landlord certifies in writing to Landlord and Tenant within 30 days
of said casualty (or such longer period, not to exceed a total of 45 days, if
Landlord is unable to obtain such certification within the 30 day period for
causes beyond Landlord's reasonable control) that the Premises cannot, with the
exercise of reasonable diligence, be made fit for occupancy within 180 working
days from the happening thereof, then, at the option of Landlord or Tenant
exercised in writing to the other within 30 days of such determination, this
Lease shall terminate as of the occurrence of such damage. In the event of
termination, Tenant shall pay Rent duly apportioned up to the time of such
casualty and forthwith surrender the Premises and all interest. If Tenant fails
to do so, Landlord may reenter and take possession of the Premises and remove
Tenant. If, however, the damage is such that the architect certifies that the
Premises can be made tenantable within such 180-day period or neither Landlord
or Tenant elects to terminate the Lease despite the extent of damage, then the
provisions below apply.
18.4 If the Premises are damaged by fire or other casualty that does not
render it wholly untenantable and require a repair period in excess of 180 days,
Landlord shall with reasonable promptness except as hereafter provided repair
the Premises up to the level of the Initial Tenant Finish.
18.5 If the Parking Garage or portions of the Building Complex required for
support or operation of the Building is damaged (though the Premises may not be
affected, or if affected, can be repaired within 180 days) and within 30 days of
said casualty (or such longer period, not to exceed a total of 45 days, if
Landlord is unable to obtain such certification within the 30 day period for
causes beyond Landlord's reasonable control) Landlord decides not to reconstruct
or rebuild the Building, then, notwithstanding anything contained herein, upon
notice to that effect from Landlord within said period, Tenant shall pay the
Rent apportioned to the later of such casualty or the date that Tenant ceases to
use the Premises, this Lease shall terminate from the date of such notice, and
both parties discharged from further obligations except as otherwise expressly
provided.
18.6 Landlord and Tenant waive all rights of recovery against the other and
its respective officers, partners, members, agents, representatives, and
employees for loss or damage to its real and personal property kept in the
Building Complex which is capable of being insured against under ISO Special
Form Coverage, or for loss of business revenue or extra expense arising out of
or related to the use and occupancy of the Premises. Tenant also waives all such
rights of recovery against Building Manager and Building Manager waives all
rights to recovery against Tenant. Each party shall, upon obtaining the property
damage insurance required by this Lease, notify the insurance carrier that the
foregoing waiver is contained in this Lease and use reasonable efforts to obtain
an appropriate waiver of subrogation provision in the policies.
18.7 Rent shall abate from the later of the date of such casualty or the
date that Tenant ceases to use the Premises and continuing until substantial
completion during any period of repair and restoration up to the level of the
Initial Tenant Finish permitting occupancy by Tenant, any recovery by Landlord
under its loss of rent insurance related to the Premises in the same proportion
that the part of the Premises rendered untenantable bears to the whole;
provided, however, if the casualty is the fault of Tenant or Tenant's agents,
then the Rent will abate during any such period of repair and restoration but
only to the extent of any recovery by Landlord under its rental insurance
related to the Premises.
19. CONDEMNATION. If the Premises or substantially all of it or any portion
of the Building Complex which renders the Premises untenantable is taken by
right of eminent domain, or by condemnation (which includes a conveyance in lieu
of a taking), this Lease, at the option of either Landlord or Tenant exercised
by notice to the other within 30 days after the taking, shall terminate and Rent
shall be apportioned as of the date of the taking. Tenant shall forthwith
surrender the Premises and all interest in this Lease, and, if Tenant fails to
do so, Landlord may reenter and take
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possession of the Premises. If less than all the Premises is taken, Landlord
shall promptly repair the Premises as nearly as possible to its condition
immediately prior to the taking, unless Landlord elects not to rebuild under
Section 18.5. Landlord shall receive the entire award or consideration for the
taking, except with respect to the value of Tenant's improvements and fixtures
and for any separate award made to Tenant for its relocation expenses pursuant
to a separate independent action taken by Tenant against the condemning
authority.
20. DEFAULT BY TENANT.
20.1 Each of the following events is an "Event of Default":
(1) Any failure by Tenant to pay Rent on the due date unless such failure
is cured within 5 business days after notice by Landlord; however, Tenant is not
entitled to more than 2 notices of delinquent payments during any calendar year
and, if thereafter during such calendar year any Rent is not paid when due, an
Event of Default shall automatically occur;
(2) Tenant vacates (other than temporary vacation during which period
Tenant is engaged in trying to relet the Premises) or abandons the Premises (as
evidenced by vacating the Premises with the intent by Tenant not to be bound by
the terms of the Lease, as evidenced by a breach of any of its other obligations
under the Lease, including the payment of Rent);
(3) This Lease or Tenant's interest is transferred whether voluntarily or
by operation of law except as permitted in Section 14;
(4) This Lease or any part of the Premises is taken by process of law
against Tenant and is not released within 15 days after a levy;
(5) Commencement by Tenant of a proceeding under any provision of federal
or state law relating to insolvency, bankruptcy, or reorganization ("Bankruptcy
Proceeding");
(6) Commencement of a Bankruptcy Proceeding against Tenant, unless
dismissed within 60 days after commencement;
(7) The insolvency of Tenant or execution by Tenant of an assignment for
the benefit of creditors; or the failure of Tenant generally to pay its debts as
they mature, or the occurrence of any of the foregoing with respect to any
Guarantor, if any, of Tenant's obligations;
(8) The admission in writing by Tenant (or any general partner of Tenant if
Tenant is a partnership), that it is unable to pay its debts as they mature or
it is generally not paying its debts as they mature;
(9) Tenant fails to take possession of the Premises by the 90th day
following the Commencement Date (which deadline may be extended by delays beyond
the reasonable control of Tenant, provided that Tenant is proceeding with due
diligence to complete the Finish Work and move into the Premises);
(10) Tenant fails to perform any of its other obligations and
non-performance continues for 30 days after notice by Landlord or, if such
performance cannot be reasonably had within such 30 day period, Tenant does not
in good faith commence performance within such 30 day period and diligently
proceed to completion; provided, however, that if Tenant's failure would
constitute a violation of Applicable Law and Landlord would be subject to fines
or penalties or use of the Building Complex by another tenant would be adversely
affected, Tenant's right to cure shall not exceed the period provided by
Applicable Law;
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(11) Any event which is expressly defined as or deemed an Event of Default
under Sections 9 and 27.22 of this Lease.
20.2 Remedies of Landlord. If an Event of Default occurs, Landlord may then
or at any time thereafter, either:
(1) (a) Without further notice except as required by Applicable Laws,
reenter and repossess the Premises or any part and expel Tenant and those
claiming through or under Tenant and remove the effects of both without being
deemed guilty of any manner of trespass and without prejudice to any remedies
for arrears of Rent or preceding breach of this Lease. Should Landlord reenter
or take possession pursuant to legal proceedings or any notice provided for by
Applicable Law, Landlord may, from time to time, without terminating this Lease,
relet the Premises or any part, either alone or in conjunction with other
portions of the Building Complex, in Landlord's or Tenant's name but for the
account of Tenant, for such periods (which may be greater or less than the
period which would otherwise have constituted the balance of the Term) and on
such conditions and upon such other terms (which may include concessions of free
rent and alteration and repair of the Premises) as Landlord, in its reasonable
discretion, determines and Landlord may collect the rents therefor. Landlord is
not in any way responsible or liable for failure to relet the Premises, or any
part thereof, or for any failure to collect any rent due upon such reletting,
but Landlord shall use commercially reasonable efforts to mitigate its damages.
If there is other unleased space in the Worldgate complex (consisting of the
Building, Plaza I and building that may be built on the property known as
Worldgate Parcel 12; collectively, the "Worldgate Complex"), Landlord may lease
such other space without prejudice to its remedies against Tenant. No such
reentry or repossession or notice from Landlord shall be construed as an
election by Landlord to terminate this Lease unless specific notice of such
intention is given Tenant. Acts of maintenance or preservation or efforts to
relet the Premises or the appointment of a receiver upon initiative of Landlord
to protect Landlord's interest under this Lease shall not constitute a
termination of Tenant's contractual liability under this Lease unless written
release of liability is given by Landlord to Tenant. Landlord reserves the right
following any reentry and/or reletting to exercise its right to terminate this
Lease by giving Tenant notice, in which event this Lease will terminate as
specified in the notice.
(b) If Landlord takes possession of the Premises without terminating this
Lease, Tenant shall pay Landlord (i) the Rent which would be payable if
repossession had not occurred, less (ii) the net proceeds, if any, of any
reletting of the Premises after deducting all of Landlord's expenses incurred in
connection with such reletting, including all reasonable repossession costs,
brokerage commissions, attorneys' fees, expenses of employees, alteration, and
repair costs (collectively "Reletting Expenses"). If, in connection with any
reletting, the new lease term extends beyond the Term or the premises covered
thereby include other premises not part of the Premises, a fair apportionment of
the rent received from such reletting and the Reletting Expenses, will be made
in determining the net proceeds received from the reletting. In determining such
net proceeds, rent concessions will also be apportioned over the term of the new
lease. Tenant shall pay such amounts to Landlord monthly on the days on which
the Rent would have been payable if possession had not been retaken, and
Landlord is entitled to receive the same from Tenant on each such day; or
(2) Give Tenant notice of termination of this Lease on the date specified
and, on such date, Tenant's right to possession of the Premises shall cease and
the Lease will terminate except as to Tenant's liability as hereafter provided
as if the expiration of the term fixed in such notice were the end of the Term.
If this Lease terminates pursuant to this Section, Tenant remains liable to
Landlord for damages in an amount equal to the Rent which would have been owing
by Tenant for the balance of the Term had this Lease not terminated, less the
net proceeds, if any, of reletting of the Premises by Landlord subsequent to
termination after deducting Reletting Expenses. Landlord may collect such
damages from Tenant monthly on the days on which the Rent would have been
payable if this Lease had not terminated and Landlord shall be entitled to
receive the same from Tenant on each such day. Alternatively, if this Lease is
terminated, Landlord at its option may recover forthwith against Tenant as
damages for loss of the bargain and not as a penalty an amount equal to the
worth at the time of termination of the excess, if any, of the Rent reserved in
this Lease for the balance of the Term over the then Reasonable Rental Value of
the Premises for the same period plus all Reletting Expenses. "Reasonable Rental
Value" is the amount of rent Landlord can obtain for the remaining balance of
the Term.
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20.3 Cumulative Remedies. Suits to recover Rent and damages may be brought
by Landlord, from time to time, and nothing herein requires Landlord to await
the date the Term would expire had there been no Event of Default or
termination, as the case may be. Each right and remedy provided for in this
Lease is cumulative and non-exclusive and in addition to every other right or
remedy now or hereafter existing at law or equity, including suits for
injunctive relief and specific performance. The exercise or beginning of the
exercise by Landlord of one or more rights or remedies shall not preclude the
simultaneous or later exercise by Landlord of other rights or remedies. All
costs incurred by Landlord to collect any Rent and damages or to enforce this
Lease are also recoverable from Tenant. If any suit is brought because of an
alleged breach of this Lease, the prevailing party is also entitled to recover
from the other party all reasonable attorneys' fees and costs incurred in
connection therewith.
20.4 No Waiver. No failure by Landlord to insist upon strict performance of
any provision or to exercise any right or remedy upon a breach thereof, and no
acceptance of full or partial Rent during the continuance of any breach
constitutes a waiver of any such breach or such provision, except by written
instrument executed by Landlord. No waiver shall affect or alter this Lease but
each provision hereof continues in effect with respect to any other then
existing or subsequent breach thereof.
20.5 Bankruptcy. Nothing contained in this Lease limits Landlord's right to
obtain as liquidated damages in any bankruptcy or similar proceeding the maximum
amount allowed by law at the time such damages are to be proven, whether such
amount is greater, equal to, or less than the amounts recoverable, either as
damages or Rent, referred to in any of the preceding provisions of this Section.
Notwithstanding anything in this Section to the contrary, any proceeding
described in Section 20.1(5),(6),(7) and (8) is an Event of Default only when
such proceeding is brought by or against the then holder of the leasehold estate
under this Lease.
20.6 Late Payment Charge. Any Rent not paid within 5 business days after
the due date shall thereafter bear interest at 5 percentage points above the
Prime Rate or the highest rate permitted by law, whichever is lower, until paid.
Further, if such Rent is not paid within 5 business days after notice, Tenant
agrees Landlord will incur additional administrative expenses, the amount of
which will be difficult to determine; Tenant therefore shall also pay Landlord a
late charge for each late payment of 5% of such payment. Any amounts paid by
Landlord to cure a default of Tenant which Landlord has the right but not the
obligation to do, shall, if not repaid by Tenant within 5 days of demand by
Landlord, thereafter bear interest at 5 percentage points above the Prime Rate
until paid. "Prime Rate" means that rate announced by Wells Fargo Bank, N.A. as
its prime rate on the date closest to the date interest commences.
20.7 Waiver of Jury Trial. Tenant and Landlord waive any right to a trial
by jury in suits arising out of or concerning the provisions of this Lease.
20.8 Self-Help. Notwithstanding anything in the Lease to the contrary, the
use of force by Landlord or its agents shall not be included among the remedies
available to Landlord. Landlord reserves the right to use other self-help
remedies provided that they do not disturb the peace.
21. DEFAULT BY LANDLORD. In the event of any alleged default on the part of
Landlord, Tenant shall give notice to Landlord and afford Landlord a reasonable
opportunity to cure such default, provided Landlord commences such cure on or
before the Fifth (5th) day following Tenant's notice and diligently pursues such
cure to completion using commercially reasonable efforts. Such notice shall be
ineffective unless a copy is simultaneously also delivered in the manner
required in this Lease to any holder of a mortgage and/or deed of trust
affecting all or any portion of the Building Complex (collectively,
"Mortgagee"), provided that prior to such notice Tenant has been given written
notice in accordance with the notice provisions of this Lease of the identity
and the address of such Mortgagee. Within such Five (5) day period, Landlord
shall provide written notice to Tenant of Landlord's intended actions and
schedule for completion of such cure and regular progress reports regarding the
same. If Landlord fails to cure such default in accordance with the requirements
set forth above or within 30 days following the notice to Landlord, whichever is
earlier,
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then Mortgagee shall have an additional 30 days following a second notice from
Tenant or, if such default cannot be cured within that time, such additional
time as may be necessary to effect a cure, provided Mortgagee commences such
cure on or before the Fifth (5th) day following such second notice and
diligently pursues such cure to completion using commercially reasonable efforts
(which pursuit shall include, without limitation, commencing foreclosure
proceedings and seeking relief in any applicable bankruptcy or insolvency
proceedings, if necessary to effect such cure). If Landlord fails to cure within
Landlord's cure period, Tenant shall be entitled to relief against Landlord for
such default (other than termination of the Lease) for so long as the
Mortgagee's cure period remains in effect. If such default involves Landlord's
failure to make repairs, provide essential services, pay utility bills as are
required under this Lease or any other circumstance that would materially impair
Tenant's ability to continue operating its business on and from the Premises,
then, if such default or failure is not cured within Five (5) days following the
date of such notice to Landlord, Tenant also shall have the right (but shall not
be obligated to) to undertake such repairs (in such manner as to not to void
applicable warranties), provide services or pay such bills or take such other
actions as are reasonably required to enable Tenant to avoid such material
impairment and to continue operating its business activities on and from the
Premises (consistent with the Permitted Uses under this Lease), provided that
such undertakings by Tenant do not materially interfere with such actions by
Landlord to effect a cure as are (1) actually being undertaken by Landlord at
such time and (2) as are equally likely and expeditious in effecting a complete
cure as those which could be taken or are proposed to be taken by Tenant and,
further provided, that Tenant's undertakings to effect a cure do not result in
any permanent material damage to the Building or Building Complex. As to all
such undertakings by Tenant, Landlord shall reimburse Tenant within 30 days of
receipt of Tenant's invoice the full amount of such reasonable out-of-pocket
costs and expenses incurred by Tenant; provided, however, that if Landlord
disputes that such default exists or disputes the reasonableness of all or a
portion of the amount to be paid, by notice to Tenant prior to the expiration of
the 30 day period, then Landlord shall have no obligation to pay the amount
disputed until such dispute is determined by final decision of a court or
agreement of the parties. If any such repairs will affect the HVAC, plumbing,
electrical or mechanical systems of the Building (the "Building Systems "), the
structural integrity of the Building, or the exterior appearance of the
Building, Tenant shall use only those contractors used by Landlord in the
Building for work on the Building Systems, or its structure, provided that
Landlord provides Tenant (upon Tenant's request) with notice identifying such
contractors and any changes to the list of such contractors, unless such
contractors are unwilling or unable to perform such work or the cost of such
work is not competitive, in which event Tenant may utilize the services of any
other qualified contractors which normally and regularly performs similar work
on comparable buildings. To the extent any sum thus reimbursed to Tenant by
Landlord represents an amount that would have been included in the Operating
Expenses of the Building if paid by Landlord to perform the obligation in
question, Landlord shall be entitled to include in Operating Expenses the sum
reimbursed to Tenant. Tenant's sole additional remedy will be equitable relief
or actual damages but in no event is Landlord or any Mortgagee responsible for
consequential damages or lost profit incurred by Tenant as a result of any
default by Landlord. If a Mortgagee, or transferee under such Mortgage
(hereafter defined), succeeds to Landlord's interest as a result of foreclosure
or otherwise, such party shall not be: (i) liable for any default, nor subject
to any setoff or defenses that Tenant may have against Landlord except for a
reimbursement obligation arising under this Section as to which such Mortgagee
has been given notice and the opportunity to dispute as provided herein or
except for obligations arising or continuing after the date such Mortgagee or
transferee succeeds to Landlord's interest; (ii) bound by any amendment
(including an agreement for early termination) without its consent made at any
time after notice to Tenant that such Mortgage requires such consent; and (iii)
bound by payment of Rent in advance for more than 30 days. Tenant agrees to pay
Rent (and will receive credit under this Lease) as directed in any Mortgagee's
notice of Landlord's default under the Mortgage reciting that Mortgagee is
entitled to collect Rent. The terms of Section 7 of this Lease shall be subject
to the terms of this Section.
22. SUBORDINATION AND ATTORNMENT.
22.1 This Lease at Landlord's option will be subordinate to any mortgage,
deed of trust and related documents now or hereafter placed upon the Building
Complex (including all advances made thereunder), and to all amendments,
renewals, replacements, or restatements thereof (collectively, "Mortgage").
Tenant agrees that no documentation other than this Lease is required to
evidence such subordination, provided, however, that the subordination by Tenant
to any such future mortgage, deed of trust or related documents shall be subject
to Tenant obtaining a non-
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disturbance agreement, on such lender's standard form agreement, with changes
are Tenant may reasonably require (to the extent such changes are consistent
with provisions in forms customarily executed by credit-worthy full-floor
tenants) whereby such lender agrees, provided Tenant is not then in default
under this Lease, that Tenant's occupancy of the Premises and rights and
privileges under this Lease shall not be disturbed or impaired in connection
with any proceeding to enforce or foreclose any such mortgage, trust indenture
or other lien and if such party succeeds to the interests of Landlord by reason
of such proceedings or conveyance in lieu thereof, Tenant shall attorn hereunder
directly to such party; provided, however, such party shall not be (i) liable
for any act or omission of any prior landlord or (ii) subject to any offsets or
defenses which Tenant might have against any prior landlord, including Landlord
(but such limitation shall not relieve such party from the responsibility to
perform the obligations as successor to Landlord applicable during its period of
ownership); or (iii) bound by any rental which Tenant might have paid for more
than one (1) month in advance to any prior landlord; or (iv) bound by any
amendment or modification of the Lease made without its consent.
22.2 If any Mortgagee elects to have this Lease superior to the lien of its
Mortgage and gives notice to Tenant, this Lease will be deemed prior to such
Mortgage whether this Lease is dated prior or subsequent to the date of such
Mortgage or the date of recording thereof.
22.3 In confirmation of subordination or superior position, as the case may
be, Tenant will execute such documents as may be required by Mortgagee and if it
fails to do so within 10 days after demand, Tenant hereby irrevocably appoints
Landlord as Tenant's attorney-in-fact and in Tenant's name, place, and stead, to
do so.
22.4 Tenant hereby attorns to all successor owners of the Building, whether
such ownership is acquired by sale, foreclosure of a Mortgage, or otherwise.
22.5 Upon the execution hereof, Tenant and Landlord's Mortgagee shall
execute the form of nondisturbance agreement in the form attached hereto as
EXHIBIT J and thereafter Landlord promptly shall provide Tenant such document as
executed by Landlord's Mortgagee.
23. REMOVAL OF TENANT'S PROPERTY.
23.1 All movable personal property of Tenant not removed from the Premises
upon vacation, abandonment, or termination of this Lease shall be conclusively
deemed abandoned and may be sold, or otherwise disposed of by Landlord without
notice to Tenant and without obligation to account; Tenant shall pay Landlord's
expenses in connection with such disposition.
23.2 Tenant shall have the right to collaterally assign Tenant's interest
in its furniture, fixtures, and equipment that are not considered part of the
Premises; Landlord agrees to execute documents, subject to Landlord's reasonable
approval, evidencing that Landlord does not have a pre-existing lien on such
personal property.
24. HOLDING OVER: TENANCY MONTH-TO-MONTH. If, after the expiration or
termination of this Lease, Tenant remains in possession of the Premises without
a written agreement as to such holding over and continues to pay rent and
Landlord accepts such rent, such possession is a tenancy from month-to-month,
subject to all provisions hereof but at a monthly rent equivalent to 150% of the
monthly Rent paid by Tenant immediately prior to such expiration or termination.
Rent shall continue to be payable in advance on the first day of each calendar
month. Such tenancy may be terminated by either party upon 10 days' notice prior
to the end of any monthly period. Nothing contained herein obligates Landlord to
accept rent tendered after the expiration of the Term or relieves Tenant of its
liability under Section 17.
25. PAYMENTS AFTER TERMINATION. No payments by Tenant after expiration or
termination of this Lease or after any notice (other than a demand for payment
of money) by Landlord to Tenant reinstates, continues, extends the Term, or
affects any notice given to Tenant prior to such payments. After notice,
commencement of a suit, or
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final judgment granting Landlord possession of the Premises, Landlord may
collect any amounts due or otherwise exercise Landlord's remedies without
waiving any notice or affecting any suit or judgment.
26. STATEMENT OF PERFORMANCE. Tenant and Landlord agree at any time upon
not less than 10 business days' written notice to execute and deliver to the
requesting party a written statement 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 stating the modifications); that
there have been no defaults by Landlord or Tenant and no event which with the
giving of notice or passage of time, or both, would constitute such a default
(or, if there have been defaults, setting forth the nature thereof); the date to
which Rent has been paid in advance and such other information relating to the
Lease as the requesting party requests. Such statement from Tenant may be relied
upon by a prospective purchaser of Landlord's interest or Mortgagee. The failure
of either party when requested to timely deliver such statement is conclusive
upon the failing party that: (i) this Lease is in full force and effect without
modification except as may be represented by the requesting party; (ii) there
are no uncured defaults in the requesting party's performance; and (iii) not
more than 1 month's Rent has been paid in advance. Upon request, the certifying
party will furnish Landlord an appropriate certificate confirming that the party
signing the statement is authorized to do so.
27. MISCELLANEOUS.
27.1 Transfer by Landlord. The term "Landlord" means so far as obligations
of Landlord are concerned, only the owner of the Building at the time in
question and, if any transfer of the title occurs, Landlord herein named (and in
the case of any subsequent transfers, the then grantor) is automatically
released from and after the date of such transfer of all liability as respects
performance of any obligations of Landlord thereafter to be performed. Any funds
in Landlord's possession at the time of transfer in which Tenant has an interest
will be turned over to the grantee and any amount then due Tenant under this
Lease will be paid to Tenant.
27.2 No Merger. The termination or mutual cancellation of this Lease will
not work a merger, and such termination or cancellation will at the option of
Landlord either terminate all subleases or operate as an automatic assignment to
Landlord of such subleases.
27.3 Common Area Use. Landlord may use any of the Common Areas for the
purposes of completing or making repairs or alterations in any portion of the
Building Complex, subject to the provisions of Section 11.
27.4 Independent Covenants. This Lease is to be construed as though the
covenants between Landlord and Tenant are independent and not dependent and
Tenant is not entitled to any setoff of the Rent against Landlord if Landlord
fails to perform its obligations; provided, however, the foregoing does not
impair Tenant's right to commence a separate suit against Landlord for any
default by Landlord so long as Tenant complies with Section 21.
27.5 Validity of Provisions. If any provision is invalid under present or
future laws, then it is agreed that the remainder of this Lease is not affected
and that in lieu of each provision that is invalid, there will be added as part
of this Lease a provision as similar to such invalid provision as may be
possible and is valid and enforceable.
27.6 Captions. The caption of each Section is added for convenience only
and has no effect in the construction of any provision of this Lease.
27.7 Construction. The parties waive any rule of construction that
ambiguities are to be resolved against the drafting party. Any words following
the words "include," "including," "such as," "for example," or similar words or
phrases shall be illustrative only and are not intended to be exclusive, whether
or not language of non-limitation is used.
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27.8 Applicability. Except as otherwise provided, the provisions of this
Lease are applicable to and binding upon Landlord's and Tenant's respective
heirs, successors and assigns. Such provisions are also considered to be
covenants running with the land to the fullest extent permitted by law.
27.9 Authority. Tenant and the party executing this Lease on behalf of
Tenant represent to Landlord that such party is authorized to do so by requisite
action of Tenant and agree, upon request, to deliver Landlord a resolution,
similar document, or opinion of counsel to that effect.
27.10 Severability. If there is more than one party which is the Tenant,
the obligations imposed upon Tenant are joint and several.
27.11 Acceptance of Keys, Rent or Surrender. No act of Landlord or its
representatives during the Term, including any agreement to accept a surrender
of the Premises or amend this Lease, is binding on Landlord unless such act is
by a partner, member or officer of Landlord, as the case may be, or other party
designated in writing by Landlord as authorized to act. The delivery of keys to
Landlord or its representatives will not operate as a termination of this Lease
or a surrender of the Premises. No payment by Tenant of a lesser amount than the
entire Rent owing is other than on account of such Rent nor is any endorsement
or statement on any check or letter accompanying payment an accord and
satisfaction. Landlord may accept payment without prejudice to Landlord's right
to recover the balance or pursue any other remedy available to Landlord.
27.12 Building Name and Size. Landlord may change the name of the Building
and as it relates to the Building Complex other than the Building: change the
name, increase the size by adding additional real property, construct other
buildings or improvements, change the location and/or character, or make
alterations or additions subject to the provisions of Section 11.1. If
additional buildings are constructed or the size is increased, Landlord and
Tenant shall execute an amendment that incorporates any necessary modifications
to Tenant's Pro Rata Share. Tenant may not use the Building's name for any
purpose other than as part of its business address.
27.13 Diminution of View. Tenant agrees that no diminution of light, air,
or view from the Building entitles Tenant to any reduction of Rent under this
Lease, results in any liability of Landlord, or in any way affects Tenant's
obligations.
27.14 Limitation of Liability. Notwithstanding anything to the contrary
contained in this Lease, Landlord's liability is limited to Landlord's interest
in the Building and Landlord shall never be personally liable for recovery of
any judgment.
27.15 Non-Reliance. Tenant confirms it has not relied on any statements,
representations, or warranties by Landlord or its representatives except as set
forth herein.
27.16 Written Modification. No amendment or modification of this Lease is
valid or binding unless in writing and executed by the parties.
27.17 Lender's Requirements. Tenant will make such modifications to this
Lease as may hereafter be required to conform to any lender's reasonable
requirements, so long as such modifications do not increase Tenant's obligations
or materially alter its rights, as reasonably determined by Tenant.
27.18 Effectiveness. Submission of this instrument for examination or
signature by Tenant does not constitute a reservation of or option to lease and
it is not effective unless and until execution and delivery by both Landlord and
Tenant.
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27.19 Survival. This Lease, notwithstanding expiration or termination,
continues in effect as to any provisions requiring observance or performance
subsequent to termination or expiration.
27.20 Time of Essence. Time is of the essence herein.
27.21 Rules and Regulations. If rules and regulations are attached hereto,
they are a part of this Lease and Tenant agrees that Tenant and Tenant's Agents
shall at all times abide by such rules and regulations.
27.22 Recording. Tenant will not record this Lease. Recording of the Lease
by or on behalf of Tenant is an Event of Default.
27.23 Consent. Where either party's consent is required under the Lease,
such consent shall not be unreasonably withheld, delayed or conditioned, except
as expressly provided.
28. AUTHORITIES FOR ACTION AND NOTICE.
28.1 Unless otherwise provided, Landlord may act through Landlord's
Building Manager or other designated representatives from time to time.
28.2 All notices or other communications required or desired to be given to
Landlord must be in writing, addressed as set forth in Section 1.10 and shall be
deemed received when: (i) delivered personally to any officer, partner, or
member of Landlord (depending upon the nature of Landlord) or the manager of the
Building (the "Building Manager") whose office is in the Building, or (ii) if
deposited in the United States mail, postage prepaid, certified or registered,
return receipt requested, when such notice is received or receipt is refused, or
(iii) if deposited with a nationally recognized courier service providing
confirmation of receipt, when such notice is received or receipt is refused, or
(iv) if sent by facsimile transmission, when received and oral confirmation by
telephone of such receipt has been given by the recipient. All notices or
communications required or desired to be given to Tenant must be in writing,
addressed as set forth in Section 1.13 and shall be deemed received when:
(i) delivered personally to any officer, partner, or member of Landlord
(depending upon the nature of Landlord) or the manager of the Building (the
"Building Manager") whose office is in the Building, or (ii) if deposited in the
United States mail, postage prepaid, certified or registered, return receipt
requested, when such notice is received or receipt is refused, or (iii) if
deposited with a nationally recognized courier service providing confirmation of
receipt, when such notice is received or receipt is refused, or (iv) if sent by
facsimile transmission, when received and oral confirmation by telephone of such
receipt has been given by the recipient. Either party may designate in writing
served as above provided a different address to which notice is to be mailed.
The foregoing does not prohibit notice from being given as provided in the rules
of civil procedure, as amended from time to time, for the state in which the
Real Property is located.
29. PARKING. Landlord shall control parking in the Parking Garage by
Tenant's employees and employees of tenants in Plaza II by issuance of parking
passes; Landlord will make available the number of parking spaces set forth in
Section 1.9 without charge for parking by Tenant's employees by issuing passes
to employees designated by Tenant for the applicable number of spaces. Landlord
shall have the right to control or limit parking by visitors to the Building in
a manner consistent with policies at similar first-class buildings in the
suburban northern Virginia area; the visitor spaces for Tenant shall be in the
surface spaces adjacent to the entry to the Building, as shown on the site plan
attached as EXHIBIT H (which spaces shall be a portion of the 322 spaces
allocated to Tenant in accordance with Section 1.9) designated by signage as
visitor parking spaces for Tenant's visitors only (but Landlord shall have no
obligation to police the use of such visitor spaces); the remaining parking
spaces shall be in the parking garage located in the lower level and the 1st
through 4th floors of the Building and of the Plaza I Building (the "Parking
Garage") and in surface parking spaces in the Building Complex as depicted on
the attached EXHIBIT H. All Tenant's parking spaces shall be in and out,
non-assigned, however, at Tenant's request, Landlord shall label by signage all
spaces allocated to Tenant (other than handicapped spaces) as depicted on the
attached EXHIBIT H and Tenant shall have the right to install control gates
limiting
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access to Tenant's parking spaces on parking level four (subject to Landlord's
reasonable approval of such system and subject to the provisions of Section
7.1); the costs of such signage and control gates shall be paid by Tenant.
Notwithstanding the above, Landlord's inability to make such spaces available at
any time for reasons beyond Landlord's reasonable control is not a material
breach by Landlord of its obligations hereunder and Tenant has no rights to use
the parking garage except as provided in this Section. If Landlord is unable to
make all such spaces available for reasons beyond Landlord's reasonable control,
Landlord shall take reasonable steps to make all such spaces available as
provided herein. All vehicles parked in the parking facilities and the personal
property therein shall be at the sole risk of Tenant, Tenant's Agents and the
users of such spaces and Landlord shall have no liability for loss or damage
thereto for whatever cause.
30. SUBSTITUTE PREMISES. INTENTIONALLY OMITTED.
31. BROKERAGE. Tenant represents it has not employed any broker with
respect to this Lease and has no knowledge of any broker's involvement in this
transaction except those listed in Sections 1.15 and 1.16 (collectively, the
"Brokers"). Tenant shall indemnify Landlord against any expense incurred by
Landlord as a result of any claim for commissions or fees by any other broker,
finder, or agent, whether or not meritorious, employed by Tenant or claiming by,
through, or under Tenant, other than the Brokers. Tenant acknowledges Landlord
is not liable for any representations by the Brokers regarding the Premises,
Building, Building Complex, or this Lease. Landlord represents that it has not
employed any broker with respect to this Lease and has no knowledge of any
broker's involvement in this transaction except those listed in Section 1.15 and
1.16 (collectively, the "Brokers"). Landlord shall indemnify Tenant against any
expense incurred by Tenant as a result of any claim for commissions or fees by
any other broker, finder, or agent, whether or not meritorious, employed by
Landlord or claiming by, through, or under Landlord, other than the Brokers.
Landlord shall pay commissions due Brokers in connection with this Lease
pursuant to separate written agreement
32. COUNTERPARTS. This Lease may be executed in two or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Any one or more counterpart signature
pages may be removed from one counterpart of the Lease and annexed to another
counterpart of the Lease to form a completely executed original instrument
without impairing the legal effect of the signature thereon.
33. ADDENDUM/EXHIBITS. Any Addenda and/or Exhibits referred to herein and
attached hereto are incorporated herein by reference.
IN WITNESS WHEREOF, the parties have executed this Lease as of the day and
year first above written and it is effective upon delivery of a fully-executed
copy to Tenant.
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SAVVIS COMMUNICATIONS CORPORATION, WGP ASSOCIATES, LLC, a Virginia
a Missouri corporation limited liability company
By:/s/ Greg Pohle
-----------------
By:/s/ David J. Frear Authorized Signatory
----------------------- "Landlord"
Print Name: David J. Frear
---------------
Print Title: Executive Vice President
-------------------------
Chief Financial Officer
ATTEST:
By:/s/ Steven M. Gallant
---------------------
Print Name: Steven M. Gallant
-----------------
Print Title: Vice President
-----------------
"Tenant"
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ADDENDUM
THIS ADDENDUM is to that certain lease agreement (the "Lease") by and
between WGP ASSOCIATES, LLC, a Virginia limited liability company ("Landlord"),
and SAVVIS COMMUNICATIONS CORPORATION, a Missouri corporation ("Tenant"), with
respect to approximately 80,580 rentable square feet of space (the "Premises")
in the Building. In the event of any conflict between the terms and provisions
of the Lease and the terms and provisions of this Addendum, the terms and
provisions of this Addendum shall control.
1. Landlord grants Tenant an option (the "Option") to extend the term of
the Lease for one (1) additional term of five (5) years (the "Option Term"). The
Option applies only to the Premises and is on the following conditions:
A. Notice of Tenant's interest in exercising the Option must be given to
Landlord no earlier than 12 months and no later than 9 months prior to the
Expiration Date ("Tenant's Notice"). Not later than thirty (30) days after
receiving Tenant's Notice, Landlord will notify Tenant of the Base Rent
applicable during the Option Term in accordance with subparagraph E below
("Landlord's Notice").
B. Tenant shall have 15 days following Tenant's receipt of Landlord's
Notice within which to exercise the Option for the Option Term by delivering
written notice of such exercise to Landlord at the Base Rent, allowances and
concessions, if any, set forth in Landlord's Notice or delivering notice of such
exercise but reserving the right to final determination of the Base Rent to be
paid in accordance with subparagraphs E below ("Tenant's Dispute Notice"). If
Tenant timely exercises the Option for the respective Option Term, the Lease
shall be deemed extended and thereafter the parties shall execute an amendment
to the Lease setting forth the extension for the Option Term and the rental rate
applicable upon determination of the Base Rent applicable in accordance with
subparagraph E below.
C. Unless Landlord is timely notified by Tenant in accordance with
subparagraphs A and B above, it will be conclusively deemed that Tenant has not
exercised the Option and the Lease will expire in accordance with its terms on
the Expiration Date.
D. Tenant's rights pursuant to this Paragraph are personal to Tenant and
may not be assigned. Tenant's right to exercise the Option is conditioned on:
(i) Tenant not being in default at the time of exercise or at the time of
commencement of the Option Term; (ii) Tenant not having subleased or vacated
more than 33% of the Premises or assigned its interest under the Lease as of the
commencement of the Option Term; and (iii) Tenant having the financial ability
to perform its obligations under the Option Term. Upon an assignment of the
Lease, this Paragraph is null and void.
E. Following delivery of Tenant's Dispute Notice, Landlord and Tenant shall
promptly initiate negotiations to determine a mutually acceptable Base Rent. If
the parties mutually agree upon a Base Rent rate, such agreed rate shall be the
Base Rent rate applicable during the Option Term. If the parties have not agreed
upon the terms as of the 20th day after the date of Tenant's Dispute Notice,
then Landlord and Tenant shall, within thirty (30) days after Tenant's delivery
of Tenant's Dispute Notice, agree upon a qualified commercial real estate broker
of good reputation, having at least five (5) years' experience in the northern
Virginia real estate market; if Landlord and Tenant cannot agree upon the
broker, then they shall each select, within the foregoing thirty-day period, a
real estate broker who meets the above qualifications and together such brokers
will then select as the arbitrator a real estate broker who meets the above
qualifications (the broker selected shall be deemed the "Arbitrator" hereunder).
Within ten (10)) days of selection of the Arbitrator, Landlord and Tenant each
shall state, in writing, their determination of the Prevailing Market Rental
Rate supported by the reasons therefor and shall make counterpart copies for
each other and the Arbitrator, under an arrangement for simultaneous exchange of
the determinations. The Arbitrator will review each party's declaration of the
Prevailing Market Rental Rate and select the one which he determines most
accurately reflects such Arbitrator's determination of the Prevailing Market
Rental Rate. The Arbitrator shall have no right to propose a middle ground or
any
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modifications of either of the two proposed resolutions. The Base Rent to paid
during the Option Term shall be the Prevailing Market Rental Rate so determined
and Tenant shall have the right to receive the allowance and concessions, if
any, set forth in Landlord's Notice. The costs incurred in connection with
engaging the Arbitrator shall be shared equally by Landlord and Tenant, and
shall be determined at the time the Arbitrator is selected. For purposes of this
Paragraph, Prevailing Market Rental Rate shall mean the annual amount per square
foot (including the then-current Operating Expenses) that a willing tenant would
pay and a willing landlord would accept following arms-length negotiations with
respect to an "Assumed Lease" (as defined below) under the circumstances then
obtaining. "Assumed Lease" means (i) a lease or renewal having a commencement
date within 6 months of Tenant's Notice for space of approximately the same size
as the Premises of the Building or a "Comparable Building," as hereinafter
defined, located in a portion of the Building or such Comparable Building, and
with a view and floor height similar to the portion of the Premises for which
Prevailing Market Rental Rate is being determined, for a term equal in length to
the Option Term; (ii) assuming that a real estate commission is payable with
respect to such lease to the extent a third-party commission with respect to
extension is agreed or obligated to be paid by Landlord; and (iii) taking into
consideration and making adjustment to reflect allowances and concessions
provided in Landlord's Notice, if any, and the use of the Base Operating
Expenses provided in Section 1.5 during the Option Term. "Comparable Building"
shall mean any existing building or building hereafter constructed in the Dulles
corridor of northern Virginia which is of a size, location, quality and prestige
comparable to, and with a size and efficiency of floor plate, amenities, and
with tenants of a stature reasonably comparable with the Building, provided that
appropriate adjustments shall be made to adjust for differences in the size,
location, age, efficiency of floorplate, and quality between such other
buildings and the Building.
F. After exercise, or failure to exercise the Option, Tenant shall have no
further rights to extend the Term.
2. In accordance with the Work Letter, as part of the Finish Work, Tenant
shall have the right to have signage installed on a monument to be constructed
by Landlord, which monument shall be constructed at Landlord's cost; such
signage shall be subject to approval by Landlord of the exact location and
details, which approval shall not be unreasonably withheld, conditioned or
delayed. Further, the monument and Tenant's signage on the monument is subject
to approval under Applicable Law and under the declaration of protective
covenants applicable to the Real Property (the "Declaration"), all of which
approvals shall be diligently pursued by Landlord. The monument, which shall be
designed and constructed by Landlord at Landlord's cost, is intended for a
building name/address identifier for the entire 4 tower Worldgate Plaza I, II,
III, and IV complex and for tenants of the complex, and notwithstanding the
above, is not exclusively for Tenant's signage; however, Tenant shall have the
right to use 25% of such monument signage area; the monument shall not be used
for Tenant's signage if only the Building name/address identifier is permitted
on such monument under the Declaration and Applicable Law. The costs for the
design, fabrication and installation of such Tenant's signage shall be borne by
Tenant (subject to the allowance provisions of the Work Letter). Tenant will
bear the costs of removal of any signage at the termination or expiration of the
Lease, including restoring or repairing damages to the monument caused by such
removal to the condition at the time of installation. In addition, if Landlord
is required at any time to remove any signage, including any approved signage,
due to any Applicable Law or if Tenant elects to remove or change the signage at
any time, Tenant shall bear the costs of such change or removal. Tenant will be
responsible at its cost to maintain its signage in reasonably good condition
acceptable to Landlord at Landlord's reasonable discretion; Landlord shall
maintain the monument as part of the Common Areas and shall require other
tenants to maintain their respective signage. In addition to the monument
signage, Tenant shall have the right to install a corporate identification sign
on the exterior of the Building facing the Dulles Toll/Access Roads out of the
Allowance or, if there is no balance of the Allowance available, at Tenant's
expense. Such Building signage shall be subject to approval (including with
respect to location, style, size, material, and method of application) by
Landlord, which approval shall not be unreasonably withheld, conditioned or
delayed, and under Applicable Laws and under the Declaration (which approvals
shall be diligently pursued by Landlord). Tenant shall not otherwise affix
signage to the outside of the Building and no signage shall be affixed to the
inside of the Building that is visible outside the Building without the approval
of Landlord, which approval shall not be unreasonably withheld or delayed. The
rights granted to Tenant pursuant to this Paragraph are personal to Tenant and
any assignees (except an assignee permitted under Section 14.7 of the Lease) or
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subtenants of Tenant have no rights under this Section. Tenant shall have the
right to erect temporary construction identification signage, at Tenant's sole
cost and expense, during the period prior to the Commencement Date identifying
the Building as Tenant's future location, subject to approval (including with
respect to location, style, size, material, and method of application) by
Landlord which approval shall not be unreasonably withheld, conditioned or
delayed, and approval under Applicable Laws and under the Declaration (which
approvals shall be diligently pursued by Landlord).
3. During the Term, Tenant shall have a right to use the roof of the
Building for the purpose of installing, maintaining and operating the following
described equipment on a portion of the roof of the Building ("Roof")
anticipated to be within the area labeled "(1)" on the roof plan attached as
part of EXHIBIT I, with the actual location to be designated by Landlord, in
Landlord's reasonable discretion ("Roof Space"): (1) chillers, as referred to on
EXHIBIT 5 to the Work Letter, to service equipment in the Premises ("Chillers")
and (2) non-penetrating (or alternative attachment methods approved by Landlord)
microwave/satellite dishes, not to exceed approximately one meter in diameter
(or such larger dimensions as shall be subject to Landlord's prior written
consent, not to be unreasonably withheld, conditioned or delayed) (the "Dishes")
and antennae not to exceed approximately one meter in height (the
"Antennae")(the foregoing height and size limitations shall be exclusive of
dimensions of any customary pedestals, platforms, supports or other mounting
devic |
