U.S. SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM 10-Q
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended: March 31, 1999
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR
15(D) OF THE SECURITIES EXCHANGE ACT OF 1934 For
the transition period from __________ to
__________
COMMISSION FILE NUMBER 0-25314
e.spire COMMUNICATIONS, INC.
(Exact name of registrant as specified in its charter)
Delaware 52-1947746
(State or other (I.R.S.
jurisdiction of Employer
incorporation or Identification
organization) No.)
133 National Business Parkway, Annapolis
Junction, MD 20701 (Address of
principal executive offices)
(301) 361-4200
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports
required to be filed by Section 13 or 15(d) of the Securities Exchange Act of
1934 during the preceding 12 months (or for such shorter period that the
registrant was required to file such reports), and (2) has been subject to such
filing requirements for the past 90 days. Yes [X] No [ ]
Indicate the number of shares outstanding of each of the issuer's classes of
common stock, as of the latest practicable date:
The number of shares of e.spire Common Stock, Par Value $0.01, outstanding
on May 12, 1999 was 50,025,996.
<PAGE>
e.spire COMMUNICATIONS, INC.
FORM 10 -- Q
INDEX
PART I. FINANCIAL INFORMATION
Item 1. Financial Statements
Condensed Consolidated Balance Sheets -- March 31, 1999 (unaudited)
and December 31, 1998 3
Condensed Consolidated Statements of Operations --
Three Months Ended March 31, 1999 and 1998 (unaudited) 4
Condensed Consolidated Statements of Cash Flows --
Three Months Ended March 31, 1999 and 1998 (unaudited) 5
Notes to Unaudited Condensed Consolidated Interim Financial Statements 6
Item 2. Management's Discussion and Analysis of Financial Condition and
Results of Operations 8
Item 3. Quantitative and Qualitative Disclosures about Market Risk 15
PART II. OTHER INFORMATION
Item 1. Legal Proceedings 16
Item 2. Changes in Securities 16
Item 6. Exhibits and reports on Form 8-K 17
Signatures................................................................ 18
Index of Exhibits......................................................... 19
<PAGE>
PART I
FINANCIAL INFORMATION
ITEM 1 -- Financial Statements
e.spire COMMUNICATIONS, INC.
CONDENSED CONSOLIDATED BALANCE SHEETS
($ in thousands, except share data)
March 31, December 31,
1999 1998
-------------- ---------------
(unaudited)
ASSETS
Current Assets:
Cash and cash equivalents $216,276 $328,758
Restricted cash and investments 31,191 30,769
Trade accounts receivable, net of allowance
for doubtful accounts of $10,325 and $5,581
at March 31, 1999 and December 31, 1998, 64,351 42,254
respectively
Unbilled revenue 10,947 12,093
Other current assets 6,839 8,742
------------ -------------
Total current assets 329,604 422,616
------------ -------------
Networks, equipment and furniture, gross 625,791 561,954
Less: accumulated depreciation and amortization (94,266) (76,020)
------------ -------------
531,525 485,934
Deferred financing fees, net of accumulated
amortization of $9,106 and $7,855 at
March 31, 1999 and December 31, 1998, 41,303 42,184
respectively
Intangible assets, net of accumulated amortization
of $5,823 and $3,897 at March 31, 1999
and December 31, 1998, respectively 12,831 14,743
Restricted cash and investments 0 15,125
Other assets 2,449 2,355
------------- -------------
Total assets $917,712 $982,957
============ =============
LIABILITIES, REDEEMABLE STOCK AND OPTIONS,
AND STOCKHOLDERS' DEFICIT
Current Liabilities:
Notes payable - current portion $ 2,625 $ 2,188
Obligations under capital leases
- current portion 4,420 3,607
Accounts payable 39,610 66,647
Accrued interest 6,302 13,864
Accrued employee costs 5,109 1,682
Other accrued liabilities 8,381 8,894
------------ -------------
Total current liabilities 66,447 96,882
------------ -------------
Long Term Liabilities:
Notes payable, less current portion 736,277 723,105
Obligations under capital leases,
less current portion 27,756 20,915
Other long-term liabilities 3,081 2,745
------------ -------------
Total liabilities 833,561 843,647
------------ -------------
Redeemable stock
14 3/4% Redeemable Preferred Stock due 2008 74,169 70,136
12 3/4% Junior Redeemable Preferred Stock
due 2009 176,555 170,908
------------ -------------
Total redeemable stock 250,724 241,044
Stockholders equity (deficit):
Common Stock, $0.01 par value, 125,000,000
shares authorized, 49,288,086 and
48,446,064 shares, respectively,
issued and outstanding 493 484
Additional paid-in capital 250,657 258,317
Accumulated deficit (417,723) (360,535)
------------ -------------
Total stockholders' deficit (166,573) (101,734)
------------- -------------
Total liabilities, redeemable stock and
options and stockholders' deficit $917,712 $982,957
deficit ============ =============
See accompanying notes to consolidated financial statements.
<PAGE>
e.spire COMMUNICATIONS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF OPERATIONS
($ in thousands, except share data)
For the three months ended March 31,
--------------------------------------
1999 1998
----------------- -----------------
(unaudited)
Revenues:
Telecommunications services $ 40,033 $ 26,144
Network technologies services 18,040 1,325
----------- -------------
Total revenues 58,073 27,469
Cost of sales:
Telecommunications services 28,134 19,118
Network technologies services 9,103 135
---------- ------------
Total cost of sales 37,237 19,253
Gross margin:
Telecommunications services 11,899 7,026
Network technologies services 8,937 1,190
------------ ------------
Total gross margin 20,836 8,216
Operating Expenses
Selling, general and administrative 36,222 19,806
Noncash compensation expense 3,049 1,633
Depreciation and amortization 20,175 8,251
---------- ------------
Total Operating Expenses 59,446 29,690
Loss from Operations (38,610) (21,474)
Nonoperating income/expense
Interest and other income (4,267) (4,376)
Interest and other expense 22,845 14,997
------------ ------------
Net loss (57,188) (32,095)
Preferred stock dividends
and accretion 9,697 8,493
------------ -----------
Net loss applicable to
common stockholders $(66,885) $(40,588)
============ ==============
Basic and diluted net loss per
common share $ (1.37) $ (1.08)
============= ==============
Weighted average number of common
shares outstanding 48,687,218 37,709,282
=============== ===============
See accompanying notes to consolidated financial statements.
<PAGE>
e.spire COMMUNICATIONS, INC.
CONDENSED CONSOLIDATED STATEMENTS OF CASH FLOWS
($ in thousands)
For the three months ended March 31,
1999 1998
------------ ------------
Cash flows from operating activities
Net Loss $ (57,188) $ (32,095)
Adjustments to reconcile net loss to
net cash used in operating activities
Depreciation and amortization 20,175 7,487
Interest deferral and accretion 14,046 6,881
Amortization of deferred
financing fees 1,251 764
Noncash compensation 3,049 1,633
Non-monetary revenue (5,621) -
Changes in operating assets
and liabilities:
Trade accounts receivable (15,330) (5,839)
Other current assets 1,903 2,275
Other assets (94) 54
Accounts payable (27,037) 2,984
Other accrued liabilities (6,437) (3,724)
-------------- -------------
Net cash used in operating activities (71,283) (19,580)
Cash flows from investing activities
Payments for networks, equipment
and furniture (54,983) (27,600)
------------- --------------
Net cash used in investing activities (54,983) (27,600)
Cash flows from financing activities
Payment of dividends for
preferred stock (17) -
Payment of notes payable (437) -
Payment of lease obligation (1,200) -
Payment of deferred financing fees (370) (13,482)
Restricted cash related to
financing activities 14,703 14,544
Exercise of warrants, options and other 1,105 1,932
------------ ------------
Net cash provided by financing
activities 13,784 2,994
Net decrease in cash & cash
equivalents (112,482) (44,186)
Cash and cash equivalents -
beginning of period 328,758 260,837
=============== ================
Cash and cash equivalents -
end of period $ 216,276 $ 216,651
=============== ================
Supplemental disclosure of cash flow information:
Interest paid $ 16,378 $ 15,359
Assets acquired under capital lease $ 8,854 $ 27,604
Dividends declared with
preferred stock $ 9,680 $ 8,493
Increase in goodwill $ 14 $ -
Accrual of stock bonuses $ 2,100 $ 1,009
<PAGE>
e.spire COMMUNICATIONS, INC.
NOTES TO UNAUDITED CONDENSED CONSOLIDATED
INTERIM FINANCIAL STATEMENTS
Note 1: Basis of Presentation
The condensed consolidated financial statements include the accounts of
e.spire Communications, Inc. ("e.spire" or the "Company") and its wholly-owned
subsidiaries. All material intercompany accounts and transactions have been
eliminated in consolidation.
The condensed consolidated balance sheet as of March 31, 1999, the condensed
consolidated statements of operations for the three months ended March 31, 1999
and 1998, and the condensed consolidated statements of cash flows for the three
months ended March 31, 1999 and 1998 have been prepared by the Company, without
audit. In the opinion of management, all adjustments, which include normal
recurring adjustments necessary to present fairly the financial position,
results of operations and cash flows at March 31, 1999, and for all periods
presented, have been made. Certain amounts in the 1998 condensed consolidated
statements have been reclassified to conform to the 1999 presentation. Operating
results for the three months ended March 31, 1999, are not necessarily
indicative of the operating results for the full year.
Certain information and footnote disclosures normally included in financial
statements prepared in accordance with generally accepted accounting principles
have been condensed or omitted. The Company believes that the disclosures
provided are adequate to make the information presented not misleading. These
financial statements should be read in conjunction with the audited financial
statements and the related notes included in the Company's Annual Report on Form
10-K for the fiscal year ended December 31, 1998.
Note 2: Significant Accounting Policies
Restricted Cash and Investments
The Company has provided performance bonds and letters of credit in various
cities in connection with its operations, resulting in a restriction to cash
amounting to approximately $3,581,000 at March 31, 1999, and $2,081,000 at
December 31, 1998. The face amount of all bonds and letters of credit is
approximately $13,678,000 as of March 31, 1999, and $12,292,000 as of December
31, 1998. In addition, as of March 31, 1999, the Company currently has
approximately $27,610,000 in an escrow account to fund the next two interest
payments of its 13 3/4 % senior notes due 2007. The escrow account is invested
in cash equivalents consisting of government and commercial securities.
Use of Estimates
The preparation of the condensed consolidated financial statements in
conformity with generally accepted accounting principles requires management to
make estimates and assumptions that affect the reported amounts of assets and
liabilities; and disclosure of contingent assets and liabilities at the dates of
the consolidated financial statements and the reported amounts of revenue and
expenses during the reporting period. Actual results may differ from those
estimates.
Risks and Uncertainties
The Company has recorded revenue of approximately $8.2 million and $2.4
million, respectively, for the three months ended March 31, 1999 and 1998 for
reciprocal compensation relating to the transport and termination of local
traffic primarily to Internet service providers ("ISPs") from customers of
incumbent local exchange carriers ("ILECs") pursuant to various interconnection
agreements. These ILECs have not paid and have disputed the majority of these
charges, based on the belief that such calls are not local traffic, as defined
by the various agreements and under state and federal laws and public policies.
The resolution of these disputes will be based on rulings by state public
utility commissions ("PUCs"), the Federal Communications Commission ("FCC"), the
courts and/or commercial arbitrators. On February 26, 1999, the FCC ruled that
ISP-bound traffic is jurisdictionally "interstate in nature", but delegated to
state PUCs the decision of whether reciprocal compensation must be paid under
the terms of local interconnection agreements. To date, there have been no
unfavorable final rulings concerning payment of past due reciprocal compensation
amounts for ISP traffic in states that e.spire billed reciprocal compensation
through March 31, 1999. The Company has outstanding trade accounts receivable
related to reciprocal compensation of approximately $22.8 million at March 31,
1999. Although, there can be no assurance that future regulatory rulings will be
favorable to the Company, and, the timing of receipts cannot be predicted at
this time. The Company believes that all of these amounts are ultimately
collectible.
Certain of the Company's interconnection agreements with the ILECs have
expired or soon will expire. The Company believes that there is risk that the
future rates for reciprocal compensation under new interconnection agreements,
some of which are currently in negotiation, may be significantly less than
current rates.
Note 3: Financing Activities
To date, the Company has funded the construction of its networks and its
operations with external financings, as described in the Liquidity and Capital
Resources section of Management's Discussion and Analysis of Financial Condition
and Results of Operations.
Note 4: New Accounting Pronouncements
On March 4, 1998, the American Institute of Certified Public Accountants
issued Statement of Position ("SOP") 98-1, "Accounting for the Costs of Computer
Software Developed or Obtained for Internal Use." This SOP provides guidance on
capitalizing certain costs related to computer software developed or obtained
for internal use. The SOP is effective for financial statements for fiscal years
beginning after December 15, 1998. The Company implemented SOP 98-1 in the first
quarter of 1999 and the effect was immaterial.
In April 1998, the American Institute of Certified Public Accountants
issued SOP 98-5, "Reporting on the Costs of Start-up Activities." This statement
requires that the costs of start-up activities, including organization costs, be
expensed as incurred and is effective for fiscal years beginning after December
15, 1998. The Company implemented SOP 98-1 in the first quarter of 1999 and the
effect was immaterial.
Note 5: Segment Reporting
During 1998, the Company adopted Statement of Financial Accounting Standard
No. 131 ("SFAS No. 131"), "Disclosures about Segments of an Enterprise and
Related Information." The Company has identified two reportable segments:
Telecommunications and Network technologies. The Telecommunications segment
provides special access, local switched voice, data transmission, and Internet
services, over the Company's own facilities and on a resale basis. The Network
Technologies segment offers fiber optic network design, project management and
construction services. The Company's reportable segments are strategic business
units that offer different products and services. They are managed separately
because each business unit requires different technology and marketing
strategies.
The Company evaluates performance based on revenue from third parties and
gross margin. These are disclosed on the condensed consolidated statement of
operations for each segment. The reportable total assets for Telecommunications
services and Network technologies are approximately $889.8 million and $27.9
million, respectively.
<PAGE>
ITEM 2 -- MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
INFORMATION REGARDING FORWARD-LOOKING STATEMENTS
Certain statements contained in "Management's Discussion and Analysis of
Financial Condition and Results of Operations" and other sections herein,
including statements regarding the development of the Company's businesses, the
markets for the Company's services and products, the Company's anticipated
capital expenditures, and other similar statements are forward-looking
statements (as such term is defined in the Private Securities Litigation Reform
Act of 1995) which can be identified as any statement that does not relate
strictly to historical or current facts. Forward-looking statements use such
words; as plans, expects, will, will likely result, are expected to, will
continue, is anticipated, estimate, project, believes, anticipates, intends and
expects, may, should, continue, seek, could and other similar expressions.
Although the Company believes that its expectations are based on reasonable
assumptions, it can give no assurance that its expectations will be achieved.
The important factors that could cause actual results to differ materially from
those in the forward-looking statements herein (the "Cautionary Statements")
include, without limitation, the Company's degree of financial leverage, risks
associated with debt service requirements and interest rate fluctuations, risks
associated with acquisitions and the integration thereof, the impact of
restriction under the Company's financial instruments, dependence on
availability of transmission facilities, regulation risks including the impact
of the Telecommunications Act of 1996, contingent liabilities, the impact of
competitive services and pricing, the ability of the Company to successfully
implement its strategies, as well as the other risks referenced from time to
time in the Company's filings with the SEC, including the Company's Form 10-K
for the year ended December 31, 1998. All subsequent written and oral
forward-looking statements attributable to the Company or persons acting on its
behalf are expressly qualified in their entirety by the Cautionary Statements.
The Company does not undertake any obligation to release publicly any revisions
to such forward-looking statements to reflect events or circumstances after the
date hereof or to reflect the occurrence of unanticipated events.
The following discussion and analysis should be read in conjunction with the
Company's condensed Consolidated Financial Statements and Notes thereto included
herewith, and with the Company's Management Discussion and Analysis of Financial
Condition and Results of Operations and audited consolidated financial
statements and notes thereto for the years ended June 30, 1996, for the six
months ended December 31, 1996 and the years ended December 31,1997 and 1998,
included in the Company's Form 10-K for the fiscal year ended December 31, 1998.
OVERVIEW
e.spire Communications, Inc., formed in 1993, seeks to be a leading
facilities-based integrated communications provider to small- and medium-sized
businesses. The Company currently operates broadband local fiber-optic networks
in 35 markets, as well as, a national broadband backbone network. By the end of
1997, the Company had positioned itself to combine the provision of dedicated,
local and long distance voice services with frame relay, asynchronous transfer
mode ("ATM") and Internet services. Having established this suite of
telecommunications products which emphasizes data capabilities, in addition to
traditional voice products, e.spire seeks to provide customers with superior
service and competitive prices while offering a single source for integrated
communications services designed to meet its business customers' needs. In
August 1998, the Company announced its plan to enter the New York and
Philadelphia local markets, and to provide long-haul broadband capabilities
between New York and Baltimore through a long-term dark fiber lease with
Metromedia Fiber Network, Inc. The Company's facilities-based network
infrastructure is designed to provide broadband services to customers on an
end-to-end basis, and, as of March 31, 1999, the Company's facilities included
1,781 route miles of fiber in its 35 local networks, 66 data points-of-presence,
25 Lucent 5ESS switches and approximately 26,000 backbone long-haul miles in its
data network.
The Company deployed its broadband data backbone network in late 1996, and
recently joined the top Tier 1 Internet companies by completing initiatives that
enhance customers' access to business Internet solutions and provide expanded
national network coverage. The Company implemented major private network
interconnections and enhancements that expand bandwidth, coverage and
redundancy. e.spire's new private peering agreements augment its existing public
peering arrangements; it currently peers with over 43 Internet Service Providers
("ISPs") at MAE-East, 43 at MAE-West, and 24 at the Ameritech network access
point.
The Company acquired CyberGate, Inc., a Florida-based ISP in January 1997.
CyberGate now has in excess of 85,000 subscribers and provides web hosting
services to customers in over 100 countries. The Company recently announced that
it will introduce dial-up Internet access services in 25 of its local markets.
In addition, in the first quarter of 1999, the Company also announced that it
signed an agreement with Covad Communications, Inc. that enables it to offer
digital subscriber line ("DSL") service, a high-speed connection to the
Internet. DSL service will be available to e.spire's customers in New York and
Washington, DC in the third quarter of 1999.
The Company introduced local switched voice services, including local
exchange services, in late-1996 and long distance services in late-1997 through
a combination of both resale of ILECs' services and facilities-based services.
As of March 31, 1999, e.spire had installed 135,134 customer access lines
representing a significant increase over the 57,653 access lines installed as of
March 31, 1998. In December 1998, the Company announced plans to eliminate
switched local resale from its product portfolio. As part of this initiative,
the Company announced in April 1999, that it had assigned its interests in
approximately 3,700 off-net customers with approximately 15,000 lines to Access
One Communications, Inc., a Florida-based competitive local exchange carrier
("CLEC")
In 1998, the Company formed ACSI Network Technologies, Inc. ("ACSI NT") to
pursue market opportunities within the fiber-optic network design and
construction arena primarily focused on municipalities, carriers and large
end-user customers. ACSI NT provides full-service network development solutions,
including business planning, market analysis, engineering, project management,
construction and network-monitoring center design.
The development of the Company's business and the construction, acquisition
and expansion of its networks require significant capital expenditures, a
substantial portion of which are incurred before realization of revenues. These
expenditures, together with the associated early operating expenses, have
resulted in a negative cash flow until an adequate customer base is established.
However, as the Company's customer base grows, the Company expects that
incremental revenues can be generated with decreasing incremental operating
expenses as a facilities-based provider, which will provide positive
contributions to cash flow. The Company has made specific strategic decisions to
build high-capacity networks with broad market coverage, which initially
increases its level of capital expenditures and operating losses. However, the
Company believes that over the long term, this strategy will enhance the
Company's financial performance by increasing the traffic flow over its network.
RESULTS OF OPERATIONS
REVENUES
The Company reported an increase in total revenues of $30.6 million, or
111%, to $58.1 million for the three months ended March 31, 1999, compared with
revenues of $27.5 million for the three months ended March 31, 1998, as
discussed below.
Telecommunications services
The Company reported an increase in telecommunications services revenues of
$13.9 million, or 53%, to $40.0 million for the quarter ended March 31, 1999,
compared with revenues of $26.1 million for the quarter ended March 31, 1998.
Included in Telecommunications services are revenues from the dedicated access,
switched local, long distance, reciprocal compensation and data/Internet
products. The increase in revenues was attributable to the Company's continued
greater presence and expansion in its markets. Also, service offerings such as
e.spire Platinum and Gold have contributed to the increase in revenues. The
Company also increased the number of route miles, fiber miles, co-locations,
buildings connected and voice and data switches deployed. Between March 31, 1998
and March 31, 1999, the Company increased route miles by 467 miles, or 36%,
increased fiber miles by 45,129 or 40%, co-locations increased by 35 or 60% and
buildings connected increased by 1,319, or 69%. Lucent 5ESS switches deployed
increased to 25 as of March 31, 1999, from 17 as of March 31, 1998. In addition,
the growth is attributable to the Company's leased coast-to-coast broadband
network infrastructure through which it delivers both ATM and frame relay
products via its 66 data points-of-presence ("POPs") with accessibility to more
than 300 POPs on a national level through various network-to-network
interconnection arrangements. The number of data POPs has increased to 66 as of
March 31, 1999, from 47 as of March 31, 1998. Access lines installed, net of
disconnects resulting from the Company's previously announced plan to eliminate
switched resale, increased by 77,481, or 134% to 135,134 at March 31, 1999, from
57,653 at March 31, 1998. At March 31, 1999, approximately 60% of total
installed lines were "on-net" versus approximately 27%, as of March 31, 1998.
Included in telecommunications services revenues is reciprocal compensation
of approximately $8.2 million and $2.4 million, for the three months ended March
31, 1999 and 1998, respectively, relating to the transport and termination of
local traffic primarily to ISPs from ILEC customers, pursuant to various
interconnection agreements. These ILECs have not paid and have disputed the
majority of these charges based on the belief that such calls are not local
traffic as defined by the various agreements and under state and federal law and
public policies. The resolution of these disputes will be based on rulings by
state PUCs, the FCC, the courts and/or commercial arbitrators. The FCC recently
ruled that ISP-bound traffic is jurisdictionally "interstate in nature" but
delegated to state PUCs the decision of whether reciprocal compensation must be
paid under the terms of local interconnection agreements. To date, there have
been no unfavorable final rulings concerning payment of past due reciprocal
compensation amounts for ISP traffic in states in which e.spire billed
reciprocal compensation through March 31, 1999. Although there can be no
assurance that future decisions will be favorable to the Company, the Company
believes that all of these amounts are ultimately collectible, although the
timing of receipts cannot be predicted at this time.
Network technologies services
Network technologies services revenues increased $16.7 million, or 1,262%,
to $18.0 million for the three months ended March 31, 1999, compared with
revenues of $1.3 million for the three months ended March 31, 1998. The increase
in revenues is attributable to the increased growth in the size and number of
construction contracts in this expanded operation. The network technologies
segment offers fiber-optic network design, project management and construction
services by ACSI NT. Also, included in network technologies revenues are
revenues for construction contracts and grants of indefeasible rights of use
("IRUs") on portions of e.spire's networks to Interexchange Carriers ("IXCs")
and other customers. The Company recognized approximately $5.6 million in
non-monetary revenues from agreements to exchange IRU multiple fibers along
certain sections of e.spire's networks for dissimilar assets or for similar IRUs
plus substantial cash payments. Included in the three months ended March 31,
1999, revenues was approximately $9.1 million derived from contracts with two
major customers. The Company expects to see continued increases in revenues from
network technologies due to future growth and expansion in this line of
business.
COST OF SALES
For the quarter ended March 31, 1999, compared with the quarter ended March
31, 1998, total cost of sales increased $18.0 million, or 93%, to $37.2 million
from $19.3 million for the three months ended March 31, 1998, as discussed
below.
Telecommunications services
Cost of sales for telecommunications services increased $9.0 million, or
47%, to $28.1 million for the quarter ended March 31, 1999, from $19.1 million
for the same period of 1998. These increases relate to growth in the delivery of
switched, data and special access services and the addition of engineering and
operations personnel dedicated to supporting the network infrastructure.
Included in cost of sales are costs of telecommunications services paid to
IXCs, ILECs and others for leased telecommunications facilities, access charges
and services. Such costs increased to approximately $21.2 million for the three
months ended March 31, 1999, from approximately $14.6 million for the three
months ended March 31, 1998. In addition, network related personnel costs such
as employee salaries and benefits are also included in cost of sales. For the
three months ended March 31, 1999 and 1998, these costs were approximately $6.9
million and $4.5 million, respectively.
Network technologies services
Cost of sales for network technologies services increased $9.0 million, to
approximately $9.1 million for the quarter ended March 31, 1999, compared with
$0.1 million for the same period of 1998. Included in network technologies cost
of sales are direct materials and labor associated with the construction of
networks and costs associated with contracted services. The costs are
attributable to the increased growth in this expanded line of business. The
Company expects this growth to continue into the future as the network
technologies segment continues to expand.
<PAGE>
GROSS MARGIN
For the quarter ended March 31, 1999, total gross margins increased $12.6
million, or 154%, to $20.8 million from $8.2 million for the quarter ended
March 31, 1998.
Telecommunications services
Telecommunications services gross margin increased $4.9 million, or 69% to
$11.9 million for the quarter ended March 31, 1999 from $7.0 million for the
same period of 1998. This increase was due to the increased sales volume as
described above. Additionally, as the Company aggressively exits the resale
business, as mentioned above, the Company expects to see improving gross margins
in this segment.
Network technologies services
Network technologies services gross margin increased $7.7 million, or 651%
to $8.9 million for the three months ended March 31, 1999 from $1.2 million for
the three months ended March 31, 1998. The increase was due to the sale of
broader range projects performed during the period as well as, an increase in
the volume of construction sales activity during the first quarter of 1999.
OPERATING EXPENSES
Selling, General and Administrative
For the quarter ended March 31, 1999, selling, general and administrative
("SG&A") expenses increased $16.4 million, or 83%, to $36.2 million from $19.8
million for the same period of 1998.
Included in SG&A expenses are personnel costs such as employee salaries,
benefits and commissions. Such costs increased $7.0 million, to $14.4 million
for the quarter ended March 31, 1999 from $7.4 million for the quarter ended
March 31, 1998. Also, included in selling, general and administrative expenses
are operating costs such as rent, advertising and general administrative and
office expenses. These expenses increased $9.5 million, to $21.9 million for the
quarter ended March 31, 1999 from $12.4 million for the quarter ended March 31,
1998.
Increases in SG&A expenses are a result of the Company's efforts directed at
obtaining more "on-net" and "on-switch" customers through direct sales, as well
as, conversion of customers that are not presently served on the Company's
facilities. The primary costs associated with the increase in direct sales
include commissions that have increased from 1998 and are expected to continue
to increase as the Company continues to generate new customers. Another factor
contributing to the increases in SG&A costs were backoffice expenses which were
a result of increases in personnel and professional service costs associated
with the Company's rapid growth which was necessary to maintain and improve
existing processes. In addition, the Company continues the implementation of its
operational support systems ("OSS") program over the next 12-18 months in which,
it will continue to invest capital. As these systems are being installed, the
Company will continue to incur backoffice operating expenses to support the
existing processes. The Company also continues to incur increased expenses
associated with its growth, including costs related to its increased revenues
and the increase in number of office locations and facilities.
Non-Cash Stock Compensation
Non-cash stock compensation expense increased $1.4 million, or 87%, to $3.0
million for the quarter ended March 31, 1999, from $1.6 million for the quarter
ended March 31, 1998. Included in non-cash compensation are accruals for the
issuance of common stock in connection with performance bonuses and costs of
grants of employee stock options. Costs associated with the accrual for
performance bonuses were approximately $2.1 million and $1.1 million for the
quarters ended March 31, 1999 and 1998, respectively. The costs for the
compensation associated with stock option plans was approximately $0.9 million
for the quarter ended March 31, 1999, and $0.5 million for the same period of
1998.
<PAGE>
Depreciation and Amortization
Depreciation and amortization expenses increased $11.9 million, or 145%, to
$20.2 million for the quarter ended March 31, 1999, from $8.3 million for the
quarter ended March 31, 1998. These increases were due to an increase in gross
capital assets to $625.8 million at March 31, 1999, compared with capital assets
of $337.4 million at March 31, 1998.
INTEREST AND OTHER INCOME
Interest and other income decreased $0.1 million, or 3%, to $4.3 million for
the quarter ended March 31, 1999, from $4.4 million for the quarter ended March
31, 1998. The decrease in interest and other income reflects the decrease in the
unrestricted cash balance from March 31, 1998, to March 31, 1999. These funds
have been invested in commercial paper, U.S.
Government Securities and money market instruments.
INTEREST AND OTHER EXPENSE
Interest and other expense increased $7.8 million, or 52%, to $22.8 million
for the quarter ended March 31, 1999, from $15.0 million for the quarter ended
March 31, 1998. The increase was primarily due to the accrual of interest
related to the 10 5/8% Senior Discount Notes due 2008 (the "2008 Notes") was
issued incurred in July, 1998. In addition, the accrual of interest related to
the 13% Senior Discount Notes due 2005 (the "2005 Notes"), the 12 3/4% Senior
Discount Notes due 2006 (the "2006 Notes") and the interest expense associated
with the Company's capital leases also contributed to the increase in interest
expense.
EBITDA
Earnings before interest, taxes, depreciation and amortization ("EBITDA")
decreased by $3.8 million, or 33%, to a loss of $15.4 million for the quarter
ended March 31, 1999, from a loss of $11.6 million for the same period of 1998.
The decrease was due to the increases in cost of sales and SG&A expenses which
offset the increases in revenues as discussed above.
NET LOSS & NET LOSS APPLICABLE TO COMMON STOCKHOLDERS
As a result of the aforementioned increases in revenues, cost of sales,
operating expenses, depreciation and amortization, and interest income and
expense, net loss increased $25.1 million, or 78%, to $57.2 million for the
quarter ended March 31, 1999, from a loss of $32.1 million for the quarter ended
March 31, 1998. Further, net loss applicable to common stockholders increased
$26.3 million, or 65%, to $66.9 million for the quarter ended March 31, 1999,
from a loss of $40.6 million for the same period of 1998. These increases to net
loss applicable to common stockholders are attributable to the increases
mentioned above, as well as, an increase in preferred stock dividends and
accretion related to the 14 3/4% Preferred Stock and the 12 3/4% Preferred
Stock.
LIQUIDITY AND CAPITAL RESOURCES
The Company's further development and enhancement of new services, as well
as, the continued development, construction, expansion, operation and potential
acquisition of networks will require substantial capital expenditures. The
funding of these expenditures is dependent upon the Company's ability to raise
substantial financing. From the Company's inception through March 31, 1999, the
Company has raised net proceeds of approximately $1.0 billion from debt and
equity financings. The Company's cash, cash equivalent and restricted cash
decreased $127.2 million for the three months ended March 31, 1999, due to
capital expended for the expansion of the Company's infrastructure and services
and to fund negative cash flow, including principal and interest payments. . The
Company expects to incur additional capital expenditures for the expansion of
its infrastructure and services and to fund negative cash flow in the future. At
March 31, 1999, the Company had approximately $247.5 million of cash, cash
equivalents and restricted cash available for such purposes. The Company
continues to consider potential acquisitions or other arrangements that may fit
the Company's strategic plan. Any such acquisitions or arrangements that the
Company might consider are likely to require additional equity or debt
financing, which the Company will seek to obtain as required and which may also
require that the Company obtain the consent of its debt holders.
Management anticipates that the Company's current cash resources are
sufficient to fund the Company's continuing negative cash flow and required
capital expenditures into the first half of 2000. To meet its additional
remaining capital requirements and to successfully implement its strategy, the
Company will be required to sell additional equity securities, increase its
existing credit facility, acquire additional credit facilities or sell
additional debt securities, certain of which may require the consent of the
Company's debt holders. Accordingly, there can be no assurance that the Company
will be able to obtain the additional financing necessary to satisfy its cash
requirements or to implement its strategy successfully, in which event the
Company will be unable to fund its ongoing operations, which would have a
material adverse effect on its business, results of operations and financial
condition.
On November 14, 1995, the Company completed a private offering of the 2005
Notes and warrants from which the Company received approximately $96.1 million
in net proceeds. The 2005 Notes will accrue to an aggregate principal amount of
$190.0 million by November 1, 2000, after which cash interest will accrue and be
payable on a semi-annual basis.
On March 21, 1996, the Company completed a private offering of the 2006
Notes from which the Company received net proceeds of approximately $61.8
million. The 2006 Notes will accrue to an aggregate principal amount of $120.0
million by April 1, 2001, after which cash interest will accrue and be payable
on a semi-annual basis.
On July 10, 1997, the Company completed the issuance and sale of 75,000
units (the "Unit Offering"), consisting of 14 3/4% Redeemable Preferred Stock
due 2008 and warrants (the "Unit Warrants") from which the Company received net
proceeds of approximately $67.7 million. Dividends on the 14 3/4% Preferred
Stock accrue from the date of issuance, are cumulative and are payable quarterly
in arrears, at a rate per annum of 14 3/4% of the liquidation preference per
share. Dividends on the 14 3/4% Preferred Stock will be paid, at the Company's
option, either in cash or by the issuance of additional shares of 14 3/4%
Preferred Stock; provided, however, that after June 30, 2002, to the extent and
for so long as the Company is not precluded from paying cash dividends on the 14
3/4% Preferred Stock by the terms of any then outstanding indebtedness or any
other agreement or instrument to which the Company is then subject, the Company
shall pay dividends on the 14 3/4% Preferred Stock in cash.
On July 23, 1997, the Company completed the sale of the 2007 Notes. Of the
total net proceeds of $204.3 million, the Company placed $70.0 million
representing funds sufficient to pay the first 5 interest payments on the 2007
Notes into an escrow account for the benefit of the holders thereof. Payments of
interest on the 2007 Notes are payable semi-annually, and began in January 1998.
In October 1997, the Company issued the 12 3/4% Preferred Stock from which
the Company received net proceeds of approximately $146.0 million. Dividends on
the 12 3/4% Preferred Stock accrue from the date of issuance, are cumulative and
are payable quarterly in arrears, at a rate per annum of 12 3/4% of the
liquidation preference per share. Dividends on the 12 3/4% Preferred Stock will
be paid, at the Company's option, either in cash or by the issuance of
additional shares of 12 3/4% Preferred Stock; provided, however, that after
October 15, 2002, to the extent and for so long as the Company is not precluded
from paying cash dividends on the 12 3/4% Preferred Stock by the terms of any
agreement or instrument governing any of its then outstanding indebtedness, the
Company shall pay dividends on the 12 3/4% Preferred Stock in cash.
On December 30, 1997, the Company entered into a credit facility with ("AT&T
Credit Facility") for the development and construction of fiber-optic local
networks. The Company has financing commitments for $35.0 million under the AT&T
Credit Facility, of which, $35 million had been borrowed as of December 31,
1997. Payments of principal and interest on borrowings under the AT&T Credit
Facility are payable quarterly, commencing in 1998. The loans under the AT&T
Credit Facility are secured by the capital stock of the material subsidiaries of
the Company and the promissory notes (the "Intercompany Notes") of certain
subsidiaries of the Company evidencing the debt. In addition, the AT&T Credit
Facility includes covenants, some of which impose certain restrictions on the
Company and its material subsidiaries including restrictions on the declaration
or payment of dividends, the conduct of certain activities, certain investments,
the creation of additional liens or indebtedness, the disposition of assets,
transactions with affiliates and extraordinary corporate transactions.
On March 31, 1998, the Company restructured certain leases resulting in a
change from operating to capital lease treatment. This transaction resulted in
capital lease obligations totaling $32.2 million, being included in liabilities
as of March 31, 1999.
On July 24, 1998, the Company completed a private placement of 10 5/8%
Senior Discount Notes due 2008 yielding net proceeds to the Company of
approximately $225 million. The 2008 Notes will accrue to an aggregate principal
amount of $375 million by July 2008. The 2008 Notes will require payment of cash
interest semi-annually in arrears beginning January 1, 2004.
YEAR 2000 PROGRAM
The Year 2000 problem is the result of computer programs being written using
two digits rather than four to define the applicable year. Any of the Company's
computer programs that have date-sensitive software may recognize a date using
"00" as the year 1900 rather than the Year 2000. This could result in a system
failure or miscalculations causing disruptions of operations, including, among
other things, a temporary inability to process transactions, send invoices or
engage in similar normal business activities.
Based upon a comprehensive systems assessment of its Year 2000 readiness,
which assessed both hardware and software for the Company's telecommunications
network and information systems, the Company has determined that to the best of
its current knowledge, 70% of its hardware and software is Year 2000 compliant.
Accordingly, the Company believes that it will not be required to modify or
replace a significant portion of its software and hardware so that its computer
systems will function properly with respect to dates in the Year 2000 and
thereafter. Additionally, because the majority of the hardware and software in
use by the Company is of the commercial off-the-shelf variety and requires
minimal customization, the Company currently expects that its efforts to bring
100% of the software and hardware that it uses into compliance will be
manageable. The Company has completed its overall planning phase, and currently
is well into the execution phase of its Year 2000 program, which includes
verification and updating of its initial assessment, and the development and
execution of specific initiatives that intend to upgrade the remaining
non-compliant hardware and software to Year 2000 compliance not later than
October 31, 1999.
The Company has engaged a consulting firm certified by the Information
Technology Association of America Year 2000 to help execute its Year
2000-readiness program in conjunction with e.spire staff.
Based upon results of the above comprehensive systems assessment, the
Company believes that work associated with bringing the Company into full Year
2000 compliance is limited to installing available compliant software upgrades
for commercial off-the-shelf software, the remediation of the general ledger of
its subsidiary CyberGate, and the replacement of a small number of personal
computers. If the replacement software is not in place before the year 2000, the
most reasonably likely worst case scenario is that e.spire would not be able to
add new customers to its network using an automated system, although it would be
able to add new customers manually for a limited time. If the remediation of
CyberGate's general ledger is not completed, it may have to resort to manual
reporting processes for that subsidiary. The Company's Year 2000 plan includes
risk assessment and contingency planning processes that are designed to provide
alternative courses of action for the Company to follow if any of the
remediation efforts are not successful or if a supplier's processes or products
are not Year 2000 ready. The full contingency planning processes are planned to
be completed by the middle of August 1999.
The Company is in ongoing communication with all of its significant hardware
and software suppliers and has been in communication with large customers to
determine the extent to which the Company's interface systems are vulnerable to
those third parties' failure to remediate their own Year 2000 issues. The
Company's total Year 2000 project cost and estimates to complete it include the
estimated costs and time associated with the impact of third party Year 2000
problems based on presently available information. However, there can be no
guarantee that the software or systems of other companies on which the Company's
systems rely will be timely converted and would not have an adverse effect on
the Company's systems. The Company is working with its vendors to remove any
non-compliant installed hardware and software by October 31, 1999. If third
party vendors do not remediate prior to the Year 2000, the most reasonably
likely worst case scenario is that the Company may have significant problems
associated with service fulfillment, billing, trouble reporting and service
providing. Contingency plans will be developed as necessary if a vendor cannot
provide the necessary Year 2000 compliant product on a timely basis for the
Company to meet that date.
The Company anticipates completing the Year 2000 project not later than
October 31, 1999, which is prior to any anticipated impact on its operating
systems. As of March 31, 1999, the Company has incurred approximately $1.5
million cumulatively for the initial Year 2000 Assessment Report, inventory
database and validation, and beginning remediation efforts. The total cost of
the Year 2000 project is estimated to be $5-$6 million and will be expensed as
incurred and funded with existing cash resources. The costs of the project and
the date on which the Company believes it will complete the Year 2000
modifications are based on management's best estimates, which were derived from
numerous assumptions of future events, including the continued availability of
certain resources, third party modification plans and other factors. However,
there can be no guarantee that these estimates will be achieved, and actual
results could differ materially from those anticipated.
Item 3. Quantitative and Qualitative Disclosures About Market Risk.
Not applicable
<PAGE>
PART II
OTHER INFORMATION
ITEM 1 -- Legal Proceedings
The Company and its subsidiaries are currently parties to routine litigation
incidental to their business, none of which, individually or in the aggregate,
are expected to have a material adverse effect on the Company. The Company and
its subsidiaries are parties to various court appeals and regulatory arbitration
proceedings relating to certain of the Company's interconnection agreements and
continue to participate in regulatory proceedings before the FCC and state
regulatory agencies concerning the authorization of services and the adoption of
regulations for local services.
ITEM 2 -- Changes in Securities
On January 5, 1999, the Company issued 20,000 shares of Common Stock to two
employees of ACSI NT, pursuant to the Company's 1998 Restricted Stock Plan (the
"Plan"). At the time of issuance of these shares, the Plan was subject to
approval by the Company's stockholders. The stockholders approved the Plan at
the Company's annual stockholders meeting on May 12, 1999. The shares were
issued pursuant to Section 4(2) of the Securities Act of 1933.
<PAGE>
ITEM 6 -- Exhibits and Reports On Form 8-K
(a) Exhibits
Exhibit
Number Description
------------ -----------------------------------------------------
10.1 Lease agreement between e.spire Communications, Inc.
and B.F. Saul Real Estate Investment Trust for the
Company's offices at 8201 Greensboro Dr., McLean, VA
10.2 Lease agreement between e.spire Communications, Inc.
and Dulles North Office Park II Corporation for the
Company's offices at 22685 Holiday Park Dr.,
Sterling, VA.
11 Statement re computation of per share earnings
27 Financial Data Schedule
99 Supplemental Financial Information
(b) Reports on Form 8-K
(a) On February 22, 1999, e.spire Communications, Inc. issued a press
release announcing the appointment on that date of Dennis Kern as Chief
Operating Officer, and the resignation of Ronald E. Spears as
President, effective July 1, 1999.
<PAGE>
SIGNATURES
In accordance with the requirements of the Securities Exchange Act of 1934,
the registrant caused this report to be signed on its behalf by the undersigned,
thereunto duly authorized.
e.spire Communications, Inc.
(Registrant)
/s/ Anthony J. Pompliano
------------------------
Anthony J. Pompliano
May 14, 1999 Chairman and Chief Executive Officer
/s/ David L. Piazza
-------------------
David L. Piazza
May 14, 1999 Chief Financial Officer
<PAGE>
INDEX OF EXHIBITS
EXHIBIT
NO. DESCRIPTION PAGE NO.
- ---- ----------- --------
10.1 Lease agreement between e.spire Communications,
Inc.and B.F. Saul Real Estate Investment Trust
for the Company's offices at 8201 Greensboro Dr.,
McLean, VA. E-1
10.2 Lease aggrement between e.spire Communications, Inc.
and Dulles North Office Park II Corporation for
the Company's offices at 22685 Holiday Park Dr.,
Sterling, VA. E-2
11 Statement re: computation of per-share earnings (loss) E-3
27 Financial Data Schedules E-4
99 Supplemental Financial Information E-5
EXHIBIT 10.1
8201 Greensboro Drive
Lease
Between
e.spire Communications, Inc.
and
B. F. Saul Real Estate Investment Trust
<PAGE>
8201 GREENSBORO DRIVE OFFICE LEASE
THIS LEASE, made this 9th day of February, 1999, by and between (i) B.
F. Saul Real Estate Investment Trust (hereinafter "Landlord") and (ii) e.spire
Communications, Inc., a Delaware corporation (hereinafter "Tenant").
WITNESSETH:
. Premises.
For and in consideration of the rent hereinafter reserved and the
mutual covenants hereinafter contained, Landlord does hereby lease and demise
unto Tenant, and Tenant does hereby hire, lease and accept, from Landlord,
certain space and improvements comprising approximately 29,048 gross rentable
square feet, as measured in accordance with BOMA (Building, Owner and Management
Association) standards, of office space (the "Gross Area") on the 11th floor of
the building known as 8201 Greensboro Drive (the "Building") located at 8201
Greensboro Drive, McLean, Fairfax County, Virginia, all upon the terms and
conditions hereinafter set forth. That portion of the Gross Area which Tenant
shall be entitled to occupy is hereinafter referred to as the "Premises", and is
outlined in red on the floor plan attached hereto as Exhibit A and by this
reference made a part hereof. It is specifically understood that for purposes of
calculating any payments or pro-rations hereunder, the number of gross rentable
square feet set forth above shall control.
. Term. The term of this lease shall commence on the date hereof
(the "Lease Date") and shall end Eighty-four (84) months after the
"Rent Commencement Date", as hereinafter defined.
. The "Rent Commencement Date" shall be the first to occur of (i) the date
Tenant actually commences occupancy of the Premises, or (ii) forty (40) days
after Landlord delivers the Premises to Tenant. In the event the Rent
Commencement Date is a date other than the first day of a calendar month, the
term of the lease shall run for the number of months set forth above from the
first day of the calendar month following the Rent Commencement Date. Landlord
and Tenant hereby agree to execute an agreement (the "Commencement and Estoppel
Agreement" attached hereto as Exhibit F) specifying the Rent Commencement Date
hereof.
Rent.
. Commencing with the Rent Commencement Date, Tenant shall pay (the
"Base Rent") for month one and two of the Lease the sum of Thirty-six Thousand
Seven and 42/100 Dollars ($36,007.42). Tenant shall pay as Base Rent for month
three of the Lease the sum of Fifty-four Thousand Eleven and 12/100 Dollars
($54,011.12). Tenant shall pay as Base Rent for months four through twelve of
the Lease the sum of Seventy-two Thousand Fourteen and 83/100 Dollars
($72,014.83). All monthly installments of rent shall be payable to Landlord or
its designated agent, in advance, without previous notice or demand therefor,
and without recoupment, deduction or setoff, with the first monthly installment
to be due and payable no later than the Rent Commencement Date and each
subsequent monthly installment to be due and payable on the first day of each
and every month following the Rent Commencement Date during the term hereof. If
the Rent Commencement Date is a date other than the first day of a month, rent
for the period commencing with and including the Rent Commencement Date until
the first day of the following month shall be pro-rated at the rate of
one-thirtieth (1/30th) of the fixed monthly rental per day.
() Beginning in year two of the Lease, Tenant shall pay as
annual rent for the Premises the sum of Eight Hundred Ninety Thousand
One Hundred Three and 24/100 Dollars ($890,103.24) per annum, payable
in equal monthly installments of Seventy-four Thousand One Hundred
Seventy-five and 27/100 Dollars ($74,175.27) each.
() Beginning in year three of the Lease, Tenant shall pay as
annual rent for the Premises the sum of Ninety Hundred Sixteen Thousand
Eight Hundred Six and 36/100 Dollars ($916,806.36) per annum, payable
in equal monthly installments of Seventy-six Thousand Four Hundred and
53/100 Dollars ($76,400.53) each.
() Beginning in year four of the Lease, Tenant shall pay as
annual rent for the Premises the sum of Nine Hundred Forty-four
Thousand Three Hundred Ten and 60/100 Dollars ($944,310.60) per annum,
payable in equal monthly installments of Seventy-eight Thousand Six
Hundred Ninety-two and 58/100 Dollars ($78,692.58) each.
() Beginning in year five of the Lease, Tenant shall pay as
annual rent for the Premises the sum of Nine Hundred Seventy-two
Thousand Six Hundred Thirty-nine and 96/100 Dollars ($972,639.96) per
annum, payable in equal monthly installments of Eighty-one Thousand
Fifty-three and 33/100 Dollars ($81,053.33) each.
() Beginning in year six of the Lease, Tenant shall pay as
annual rent for the Premises the sum of One Million Eight-eight
Thousand Nine Hundred Sixty-three and 16/100 Dollars ($1,088,963.16)
per annum, payable in equal monthly installments of Ninety Thousand
Seven Hundred Forty-six and 93/100 Dollars ($90,746.93) each.
() Beginning in year seven of the Lease, Tenant shall pay as
annual rent for the Premises the sum of One Million One Hundred
Twenty-one Thousand Six Hundred Thirty-two and 08/100 Dollars
($1,121,632.08) per annum, payable in equal monthly installments of
Ninety-three Thousand Four Hundred Sixty-nine and 34/100 Dollars
($93,469.34) each.
. Letter of Credit. . Tenant has elected to deposit a with Landlord in lieu of a
cash security deposit to secure the prompt payment of Base Rent and Additional
Rent under the Lease (the "Lease Liabilities") Letter of Credit Number , in
favor of Landlord as the beneficiary, issued by ________ in the initial amount
of One Hundred Forty-four Thousand Twenty-nine and 66/100 Dollars ($144,029.66),
together with all renewals and extensions thereof and substitutions therefor,
and all cash proceeds thereof (all of the foregoing are herein collectively
referred to as the ("Letter of Credit"). If Tenant fails to renew or replace the
Letter of Credit as provided in this Article 4, Landlord may present the Letter
of Credit for payment by the issuer thereof, and retain the proceeds of the
Letter of Credit as the Security Deposit under this Lease, and, if Landlord
retains the proceeds of the Letter of Credit as the Security Deposit, Landlord
may commingle the deposit with its own funds. If Landlord receives cash proceeds
of the Letter of Credit, such proceeds shall be held as security for the
performance by Tenant or Tenant's covenants and obligations under this Lease, it
being expressly understood that the deposit shall not bear interest to Tenant,
and shall not be considered an advance payment of rental or a measure of
Landlord's damage in case of default by Tenant. Upon the occurrence of any event
of default by Tenant or breach by Tenant of Tenant's covenants under this Lease,
Landlord may, from time to time, without prejudice to any other remedy, use the
security deposit to the extent necessary to make good any arrearage of rent
and/or to correct or repair any damage, injury, expense or liability caused to
Landlord by the event of default or breach of covenant. Any balance of the
security deposit remaining after the full and complete satisfaction of Tenant's
obligations to Landlord shall be returned by Landlord to Tenant upon termination
of this Lease; provided, however, that Landlord may retain all or a portion of
the security until Landlord makes the final annual adjustments of Annual
Operating Costs and Real Estate Taxes and ascertains Tenant's share of such
amounts which accrued prior to the expiration of the term.
. If Tenant defaults in the payment of rent or in the performance or
observance of any other obligations to be performed on its part under this Lease
and does not cure such default within any notice and cure period provided for in
this Lease, Landlord may present the Letter of Credit for payment by the issuer
thereof and apply the proceeds to payment or Base Rent or Additional Rent in
default, and/or to the prepayment of the Base Rent for any subsequent period of
the term and/or to any amount to which Landlord may be entitled under this
Lease; and Tenant shall promptly thereafter restore the Letter of Credit to the
original amount above specified. The right of Landlord to apply the Proceeds of
the Letter of Credit as above specified shall not be construed as a limitation
upon Landlord's right to invoke any other remedy available under this Lease or
at law or equity for breach of this Lease, or to collect the full amount of
damages owing by Tenant on account of such breach. If, by reason of Tenant's
default under this Lease, Landlord terminates this Lease at any time or reenters
the Premises, Landlord may credit against the damages which it suffers but
without waiving its rights to recovery of additional damages to which it may be
entitled and/or apply it to the monthly installments of Base Rent and other
amounts payable under this Lease hereunder in inverse order of accrual.
. The Letter of Credit shall be issued to Landlord, shall be
unconditional (i.e., without requirements or conditions for presentation, honor
or payment), except as expressly provided for below, and shall be irrevocable
during its stated term. The Letter of Credit may state or require that, at the
time that Landlord presents the Letter of Credit for payment, such presentation
shall be accompanied by a written statement executed by any person purporting to
be an authorized officer of the general partner of Landlord as follows:
"This shall certify that a default by Tenant in the payment of rent has
occurred and is continuing under that certain Lease dated by and
between B. F. Saul Real Estate Investment Trust, as Landlord, and
e.spire Communications, Inc., as Tenant. Any notice or notices of
default required by such Shopping Center Lease have been given by
Landlord to Tenant and Tenant has not cured within any period for cure
provided for in the Lease. Based upon the foregoing, Landlord hereby
presents Letter of Credit No. for payment and hereby demands that the
issuer thereof draw upon such Letter of Credit and remit the proceeds
of the Letter of Credit to Landlord."
. The Letter of Credit may provide by its terms that, if Landlord has
not previously notified the issuer of the occurrence of an event of default by
Tenant under this Lease, the amount thereof shall be reduced by the sum of
Seventy-two Thousand Fourteen and 83/100 Dollars ($72,014.83) on the fourth
anniversary of the Rent Commencement Date. The Letter of Credit shall state such
reduction in amount as specified in the immediate preceding sentence. In the
alternative, Tenant may provide an initial Letter of Credit in the amount of One
Hundred Forty-four Thousand Twenty-nine and 66/100 Dollars ($144,029.66)
expiring on the third anniversary of the Rent Commencement Date, in which event,
Tenant shall not later than thirty (30) days prior to the third anniversary of
the Rent Commencement Date, provide Landlord with a replacement Letter of Credit
in the amount then required to be maintained by Tenant under clause (i) or (ii)
of this Paragraph 4 (d), as applicable, providing for an additional term of not
less than one (1) year.
. Any Letter of Credit which has an expiration date prior to the
expiration date of the term of this Lease (including any Option Terms exercised
by Tenant) shall also provide that Landlord may present the Letter of Credit for
payment when accompanied by the following written statement:
"Tenant has failed to renew or replace the Letter of Credit ten (10)
days before its expiration date, and Landlord is accordingly entitled
to draw upon the Letter of Credit."
. The Letter of Credit shall also expressly state and provide that the
issuer is entitled to rely on any statement in the forms provided above which
purports on its face to be executed by an officer of Landlord, and that the
issuer is not obligated to verify the authority of any such person to execute
any such statement on Landlord's behalf, nor shall the issuer or Tenant be
liable in any manner whatsoever if any such statement is found to have been
improperly delivered by Landlord, of if such statement is delivered by a person
not duly authorized to do so on Landlord's behalf.
. In addition to all other rights available to it under applicable laws
or otherwise: Landlord, in conjunction with the assignment, pledge, or transfer
of its interest as Landlord under the Lease, shall have the right to assign
therewith Landlord's rights in the Letter of Credit, and any assignee, pledgee,
or transferee shall have the rights of Landlord hereunder with respect to the
Letter of Credit so assigned, pledged, or transferred, and Landlord shall be
thereafter relieved from all duties with respect to any such Letter of Credit,
provided Landlord provides Tenant with written documentation evidencing such
assignment, pledge or transfer.
. Increases in Annual Operating Costs. Tenant agrees to pay to Landlord, as
additional rent, its Pro-Rata Share (as hereinafter defined) of any amount by
which the total Annual Operating Costs (as hereinafter defined), for each
Adjustment Year (as hereinafter defined), exceeds an amount equal to the Annual
Operating Costs for the Premises incurred in fiscal year October 1, 1998 -
September 30, 1999 (the "Base Annual Operating Cost"). For the purposes of this
lease, the Adjustment Year shall mean the twelve month period ending on each
September 30, the first such Adjustment Year being the twelve month period
ending on the first September 30 occurring after the Rent Commencement Date.
. Annually during the term hereof, Landlord shall furnish to Tenant a
statement (the "Annual Statement") of the actual Annual Operating Costs for each
Adjustment Year. Tenant shall, within fifteen (15) business days of its receipt
of said Annual Statement, pay to Landlord its Pro-Rata Share of the difference
between the actual Annual Operating Cost reflected on said Statement and the
Base Annual Operating Cost set forth above (which difference is hereinafter
referred to as the "Increase") or, if Tenant has paid an amount in excess of its
Pro-Rata Share, Landlord will refund such amount to Tenant. Thereafter,
commencing on the first day of October immediately following the Adjustment Year
covered by said Annual Statement, Tenant shall pay to Landlord monthly during
the term hereof, as additional rent, without notice or demand therefor and
without any deduction or setoff whatsoever, an amount equal to one-twelfth
(1/12th) of its Pro-Rata Share of such Increase. Tenant's monthly payment set
forth above shall be adjusted as of the end of each succeeding Adjustment Year
to the actual increase set forth in each successive Annual Statement, and such
adjustment shall be paid within fifteen (15) business days of the date of said
Annual Statement. The amount of any Increase calculated from time to time
pursuant to any Annual Statement shall be used as the basis for calculating
Tenant's monthly payment for the next succeeding twelve (12) month period.
. At any time or times prior to or during the first Adjustment Year,
Landlord may submit to Tenant a statement of Landlord's estimate of Tenant's
Increase for such Adjustment Year. If such estimate is submitted prior to the
first Adjustment Year, Tenant shall pay to Landlord one-twelfth (1/12th ) of the
amount so estimated on the first day of each month in advance, commencing on
October 1 of the Adjustment Year. In case such estimate is submitted during the
first Adjustment Year, Tenant shall, (i) within fifteen (15) days after the
delivery of such statement, make a lump sum payment to Landlord equal to 1/12th
of Tenant's estimated Increase for such Adjustment Year multiplied by the number
of months in such Adjustment Year that will have elapsed prior to the first
monthly payment required by clause (ii) hereof, and (ii) begin paying to
Landlord, as additional monthly rent, due and payable on the first day of each
month, an amount equal to 1/12th of Tenant's Increase as so estimated.
Notwithstanding, in no event shall Tenant pay (or be billed) operating expense
pass-through costs until the commencement of the second lease year.
. For the purposes of this paragraph 5, the following provisions shall
control:
() All monthly payments as may be required hereunder for the
period from the first day of each Adjustment Year through the date of receipt of
the Annual Statement for the preceding Adjustment Year, shall be payable without
demand in full on the first day of the calendar month next following the date of
receipt of said Annual Statement, but not less than ten (10) business days from
Tenant's receipt. Failure by the Landlord to timely provide any Annual Statement
shall not constitute a waiver by Landlord of its rights to payments due pursuant
to this paragraph, and the obligations hereunder shall survive the expiration or
other termination of this Lease.
() For any applicable Adjustment Year that ends after the
expiration date of this Lease, the Increase for that Adjustment Year shall be
apportioned on a per diem basis so that only that portion of such Increase as is
attributable to the portion of such Adjustment Year that occurs during the term
of this Lease, shall be payable by Tenant.
. Tenant's share of Annual Operating Costs ("Tenant's Pro-Rata Share")
for each full or partial fiscal year selected by Landlord during the Term shall
be computed by Landlord by multiplying the amount of Annual Operating Costs by a
fraction obtained by dividing the total number of leasable square feet of space
contained in the Premises by the total leasable area contained within the
Building from time to time. Tenant's Pro-Rata Share is estimated to be 3.05% of
the Annual Operating Costs for the Building and the Property on the date of this
Lease.
Annual Operating Costs as used herein shall include all costs of
operation, maintenance and repair of the Building and its appurtenances as an
office building, comparable to similar office buildings and shall include the
following by way of illustration but not limitation: Real Estate Taxes (as
hereinafter defined), personal property taxes, insurance, and the cost of labor,
materials and services for the operation, maintenance and repair of the
Building, its appurtenances and parking areas (including painting and papering
of common areas and replacement of carpet and flooring in common areas),
including, but not limited to, water and sewer charges, garbage and waste
disposal, license, permit and inspection fees, heat, light, power and other
utilities, chillers, air conditioning and ventilation, elevator service,
plumbing service, window cleaning service, janitorial and cleaning service,
maintenance and service contracts customarily maintained for similar buildings,
landscaping (including upgrades and replacements thereto), security service,
watchmen, guards, and any other personnel engaged in the operation, maintenance
or repair of the Building and its appurtenances together with payroll taxes,
insurance and employee benefits applicable thereto. Also included are management
expenses and fees, legal and accounting fees, the Landlord's general and
administrative expenses and a reserve for parking facilities and roof repairs of
two cents ($.02) per square foot of rentable area. In addition, Annual Operating
Costs shall include (i) depreciation for capital expenditures made by Landlord
to reduce operating expenses if Landlord shall have reasonably determined that
the annual reduction in operating expenses shall exceed depreciation therefor;
depreciation shall be determined by dividing the original cost of such capital
expenditure by the number of years of useful life of the capital item acquired
and the useful life shall be reasonably determined by Landlord in accordance
with generally accepted accounting principles and practices in effect at the
time of acquisition of the capital item, and (ii) the cost of capital
improvements made in order to comply with statutes, rules, regulation or
directives hereafter promulgated by any governmental authority after the Rent
Commencement Date, relating to energy conservation, public safety or other
reason. Any of the services, supplies or materials which may be included in the
computation of Annual Operating Expenses for the Property may be performed by
subsidiaries or affiliates of Landlord. Expenses related to a specific tenant's
premises which are not of general benefit to the other tenants of the Building
and legal fees incurred in connection with other tenant's leases or the
enforcement thereof shall not be included in Annual Operating Costs.
. The term "Real Estate Taxes" means all taxes rates and assessments,
general and special, levied or imposed with respect to the land, buildings and
improvements of which the Premises are a part, including all taxes, rates and
assessments, general and special, levied or imposed for schools, public
betterment, general or local improvements and operations and taxes imposed in
connection with any special taxing district. If the system of real estate
taxation shall be altered or varied and any new tax or levy shall be levied or
imposed on said land, buildings and improvements, and/or Landlord in
substitution for real estate taxes presently levied or imposed on fixtures in
Fairfax County, Virginia, then any such new tax or levy shall be included within
the term "Real Estate Taxes". Should any governmental taxing authority acting
under any law or regulation, levy, assess, or impose a tax, excise and/or
assessment however described (other than an income or franchise tax) upon,
against, on account of, or measured by, in whole or in part, the rent expressly
reserved hereunder, or upon the rent expressly reserved under any other lease or
leasehold interests in the Premises, the Building or the land upon which the
Building is located, as a substitute (in whole or in part) or in addition to any
existing real estate taxes on land with buildings or otherwise, such tax or
excise on rents shall be included within the term "Real Estate Taxes". Actual
and reasonable expenses (consisting of reasonable attorneys' fees, consulting
fees, expert witness fees and similar costs) incurred by Landlord to monitor the
Real Estate Taxes or in obtaining or attempting to obtain a reduction of any
Real Estate Taxes shall be added to and included in the amount of any such Real
Estate Taxes. Real Estate Taxes which are being contested by Landlord shall
nevertheless be included for purposes of the computation of the liability of
Tenant under this paragraph, provided, however, that in the event that Tenant
shall have paid any amount of increased rent pursuant to this paragraph e. and
the Landlord shall thereafter receive a refund of any portion of any Real Estate
Taxes on which such payments shall have been based, Landlord shall pay to Tenant
the Tenant's Pro-Rata Share of such refund. Landlord shall have no obligation to
contest, object to or litigate the levying or imposition of any Real Estate
Taxes and may settle, compromise, consent to, waive or otherwise determine in
its discretion, to abandon any contest with respect to the amount of any Real
Estate Taxes without consent or approval of the Tenant; provided however that
Tenant's pro rata share of expenses related to an appeal of Real Estate Taxes
which is abandoned by Landlord shall not exceed Ten Thousand Dollars ($10,000).
If under Fairfax County or Virginia law or regulations, the Tax Assessor is
required to include leasehold (real property) improvements in determining the
assessed value of the Building, then to the extent that Tenant makes leasehold
improvements (including Tenant's original installation and Tenant's subsequent
alterations, additions, substitutions and improvements) which are in excess of
the building standards, whether done prior to or after the commencement of the
term of this Lease, Tenant shall pay the Real Estate Taxes attributable to the
value of such excess leasehold improvements throughout the term of this Lease
within thirty (30) days after being billed therefor by Landlord.
. Notwithstanding anything set forth in Article 5 to the contrary, of
the average occupancy level of the Building for any calendar is less than 100%,
the Operating Expenses for such calendar year shall be increased by the
additional Operating Expenses, as reasonably estimated by Landlord, that would
have been incurred by Landlord in providing the same services provided to Tenant
(and include in Operating Expenses) if the average occupancy level of the
Building for the calendar year had been 100%. For purposes of the preceding
sentence, the "average occupancy of the Building" for any calendar year shall be
the arithmetic average of the Building Rentable Area occupied by tenants on the
first day of each month during the calendar year.
. Tenant, upon not less than ten (10) days written notice to Landlord,
shall have reasonable access during normal business hours in Landlord's
headquarters office to inspect the books and records of Landlord relating to
Annual Operating Costs and/or to have such books and records audited or
reviewed, at Tenant's expense, for the purpose of verifying the Annual Operating
Costs statement. Tenant shall bear all costs relating to such inspection,
including, but not limited to, costs of photocopies. Any discrepancy in Tenant's
Proportionate Share shall be promptly corrected by a payment of any shortfall to
Landlord by Tenant within thirty (30) days after the applicable audit, or by a
credit against the next payment(s) of Annual Operating Costs due under this
Lease, Tenant shall keep the results of any audit of Annual Operating Costs
confidential.
. Additional Rent. Any amounts required to be paid by Tenant hereunder and any
charges or expenses incurred by Landlord on behalf of Tenant under the terms of
this Lease shall be considered additional rental payable in the same manner and
upon the same terms and conditions as the rent reserved hereunder. Any failure
on the part of Tenant to pay such additional rental when and as the same shall
become due shall entitle Landlord to the remedies available to it for
non-payment of rent.
. Laws and Ordinances. . Tenant will, at its own cost, promptly comply with and
carry out all orders, requirements or conditions now or hereafter imposed upon
it by the ordinances, laws and/or regulations of the Commonwealth of Virginia,
whether required of Landlord or otherwise, in the conduct of Tenant's business.
Tenant will indemnify and save Landlord harmless from all penalties, claims, and
demands resulting from Tenant's failure or negligence in this respect.
. Landlord shall comply with all laws and regulations with regard to
the Common Area of the Building and structural portions of the Building which
Landlord is required to repair pursuant to the terms of this Lease. In addition,
Landlord shall cause the Common Facilities to conform to all applicable legal
and insurance requirements, including the Americans with Disabilities Act
("ADA"), and the Board of Insurance Underwriters. Landlord will indemnify and
save Tenant harmless from all penalties, claims and demands resulting from
Landlord's failure or negligence in this respect.
. Furniture; Fixtures; Electrical Equipment.
. Tenant shall not place a load upon the floor of the Premises
exceeding one hundred (100) pounds per square foot without Landlord's prior
written consent. Business machines, mechanical equipment and materials belonging
to Tenant which cause vibration, noise, cold, heat or fumes that may be
transmitted to the Building or to any other leased space therein to such a
degree as to be objectionable to Landlord or to any other tenant in the Building
shall be placed, maintained, isolated, stored and/or vented by Tenant at its
sole expense so as to absorb and prevent such vibration, noise, cold, heat or
fumes. Tenant shall not keep within or about the Premises any dangerous,
inflammable, toxic or explosive material beyond standard office materials,
except in strict compliance with law and in amounts commonly found in office
buildings similar to the Building. Tenant shall indemnify Landlord and hold it
harmless against any and all damage, injury, or claims resulting from the moving
of Tenant's equipment, furnishings and/or materials into or out of the Premises
or from the storage or operation of the same. Any and all damage or injury to
the Premises or the Building caused by such moving, storage or operation shall
be repaired by Tenant at Tenant's sole cost. If Tenant fails to make any such
repairs, Landlord may do so and Tenant agrees to immediately reimburse Landlord
for any expenses so incurred.
. Tenant will not install or operate in the Premises any electrically
operated equipment, mainframe computers or other machinery, other than electric
typewriters, personal computers, adding machines, standard office duplicating
machines and such other small electrically operated office equipment as is used
in modern offices without first obtaining the prior consent in writing of
Landlord, who may condition such consent upon the installation, at Tenant's
expense, of separate metering devices and the payment by Tenant of additional
rent as compensation for such excess consumption of water and/or electricity or
wiring as may be occasioned by the operation of said equipment or machinery or
the installation of additional metering devices; nor shall Tenant install any
other equipment whatsoever which will or may necessitate any changes,
replacements or additions to the water system, plumbing system, heating system,
air conditioning system or the electrical system of the Premises without the
prior written consent of Landlord.
. Alterations.
. Tenant shall make no alterations or changes, structural or otherwise,
except for non-structural alterations which are cosmetic in nature (i.e.,
consisting of painting and carpeting) to any part of the Premises, either
exterior or interior, without Landlord's written consent. In the event of any
such approved changes, Tenant shall have all work done at its own expense.
Request for such consent shall be accompanied by plans stating in detail
precisely what is to be done. Tenant shall comply with the building codes,
regulations and laws now in force or hereafter enacted in Fairfax County and the
Commonwealth of Virginia which pertain to such work. Any additions,
improvements, alterations and/or installations made by Tenant (except only
office furniture, business and trade fixtures or any equipment including, but
not limited to, telecommunications equipment and related wiring) shall become
and remain a part of the Building and be and remain Landlord's property upon the
termination of Tenant's occupancy of the Premises; provided, however, that if
Landlord gives written notice to Tenant at the expiration or other termination
of this Lease to such effect then, it may require Tenant to restore said
Premises to the same condition which existed on the date Tenant occupied the
Premises for the conduct of business at Tenant's sole cost and expense, except
for ordinary wear and tear; provided, however that unless Landlord shall advise
Tenant at the time of Landlord's consent to any such addition, alteration, that
such addition, alteration, etc. will be required to be removed by Tenant upon
the expiration or termination of this Lease, Tenant shall not be required to
remove any such alteration or addition. Tenant shall save Landlord harmless from
and against all expenses, liens, claims or damages to either property or person
which may or might arise by reason of the making of any such additions,
improvements, alterations and/or installations. If any alteration requiring
Landlord's consent is made without the prior written consent of Landlord,
Landlord may correct or remove the same, and Tenant shall be liable for any and
all expenses incurred by Landlord in the performance of this work. It is further
understood and agreed by Landlord and Tenant that any alterations shall be
conducted on behalf of Tenant and not on behalf of Landlord. It is further
understood and agreed that in the event Landlord shall give its written consent
to Tenant's making any alterations, such written consent shall not be deemed to
be an agreement or consent by Landlord to subject Landlord's interest in the
Premises or the Building to any mechanic's liens which may be filed in respect
of any alterations made by or on behalf of Tenant. If any mechanic's or
materialman's lien (or a petition to establish such lien) is filed in connection
with any Alteration, then such lien (or petition) shall be discharged or bonded
by Tenant at Tenant's expense within ten (10) days after Tenant has notice
thereof by the payment thereof or the filing of a Letter of Credit reasonably
acceptable to Landlord. If Tenant shall fail to discharge any such mechanic's or
materialman's lien, Landlord may, at its option, discharge such lien and treat
the cost thereof (including reasonable attorneys' fees incurred in connection
therewith) as additional rent payable with the next monthly installment of Base
Rent falling due; it being expressly agreed that such discharge by Landlord
shall not be deemed to waive or release the default of Tenant in not discharging
such lien. Landlord reserves the right to change, increase or reduce, from time
to time, the number, composition, dimensions or location of any parking areas,
signs, the Building name, service areas, walkways, roadways or other common
areas or make alterations or additions to the Building, in its sole discretion
provided, however, that if such changes (i) materially and adversely affect
Tenant's use of the Premises, or the parking or common areas, or (ii) materially
reduce the Building's level of common area finishes and services, Landlord shall
not make such changes without Tenant's prior approval, which shall not be
unreasonably withheld, conditioned or delayed.
. Notice of Non-Liability. Notice is hereby given that Landlord shall
not be liable for any labor or materials furnished or to be furnished to Tenant
upon credit, and that no mechanics' or other lien for any such labor or
materials shall attach to or affect the estate or interest of Landlord in and to
the Premises. Whenever and as often as any lien arising out of or in connection
with any work performed, materials furnished or obligations incurred by or on
behalf of Tenant shall have been filed against the Premises, or if any
conditional bill of sale shall have been filed for or affecting any materials,
machinery or fixtures used in the construction, repair or operation thereof, or
annexed thereto by Tenant, Tenant shall forthwith take such action by Letter of
Crediting, deposit or payment as will remove or satisfy the lien or conditional
bill of sale within ten (10) days of Landlord's written request therefor,
notwithstanding. nothing contained herein shall limit Tenant's right to contest
such lien.
. No approval of plans by Landlord shall be deemed to be a
representation or warranty by Landlord that such plans or the work provided for
therein will comply with applicable codes, laws or regulations or be in
conformance with any insurance or other requirements which affect the Premises,
and Tenant shall have the sole responsibility of complying with all such
requirements notwithstanding Landlord's approval of Tenant's plans.
. Damage. . If the Premises are damaged by fire or other cause covered by
Landlord's policy of fire insurance with extended coverage or other property
damage insurance carried by Landlord, the damage shall be repaired by and at the
expense of Landlord and the rent until such repairs shall have been made shall
abate pro-rata according to the part of the Premises which is unusable by
Tenant. However, if such damage was caused by the negligence of Tenant, its
employees, agents, contractors, visitors or licensees, then all rentals shall be
payable by Tenant during such period. Due allowance shall be made for reasonable
delay which may arise by reason of adjustment of fire insurance by Landlord, and
for personnel delay on account of "labor troubles" or any other cause beyond
Landlord's control. If, however, the Premises are rendered wholly untenantable
by fire or other cause and Landlord shall decide not to rebuild the same, or if
the entire Building be so damaged that Landlord shall decide to demolish it or
not to rebuild it, then or in any of such events, Landlord may, at its option,
cancel and terminate this Lease by giving Tenant notice in writing of its
intention to cancel this lease, whereupon the term of this Lease shall terminate
upon the thirtieth (30th) day after such notice is given, and Tenant shall
vacate the Premises and surrender the same to Landlord. In neither of the
certain contingencies in this paragraph mentioned shall there be any liability
on the part of Landlord to Tenant covering or in respect of any period during
which the occupation of said Premises by Tenant may not be possible because of
the matters hereinabove stated, nor shall Landlord be liable for any damage
incurred by Tenant other than Landlord's obligation to repair the Premises as
aforesaid.
. Notwithstanding anything to the contrary contained in this Lease, if
the Premises are damaged or destroyed by fire, accident, the elements or other
casualty (a "Casualty") to the extent that it will not be possible to rebuild
the Premises within one hundred eighty (180) days after the date of the
Casualty, Landlord shall notify Tenant within thirty (30) days after such
Casualty of Landlord's good faith estimate of the time needed to undertake
reconstruction of the Premises. If (i) Tenant is not then in default under this
Lease beyond the expiration of any applicable notice and cure period, and (ii)
the damage was not caused by Tenant's negligence or willful misconduct, Tenant
shall have the right to terminate this Lease by giving to Landlord notice of
such termination within fifteen (15) days after Landlord provides notice of such
good faith estimate. In the event that Landlord or Tenant do not exercise a
right of termination as provided in this Lease, Landlord shall commence to
repair the damage caused by such Casualty and, thereafter, shall diligently and
continuously pursue completion of such repairs, within the estimated completion
date as set forth in Landlord's notice. If Landlord fails to substantially
complete the repairs within the estimated completion date, Tenant shall have the
right and option, as its sole and exclusive remedy upon no less than thirty (30)
days prior notice to Landlord to terminate this Lease; provided, however, that
any termination of this Lease by Tenant shall be null and void if Landlord
substantially completes repairs within thirty (30) days after receipt of
Tenant's notice of termination.
. Condemnation
. If the Premises or any part thereof shall be taken by any
governmental or quasi-governmental authority pursuant to the power of eminent
domain, or by deed in lieu thereof, Tenant agrees to make no claim for
compensation in the proceedings, and hereby assigns to Landlord any rights which
Tenant may have to any portion of any award made as a result of such taking with
respect to the real property, including, without limitation, with respect to the
real property including, without limitation, the Building and the Tenant's
leasehold, and this Lease shall terminate as to the portion of the Premises
taken by the condemning authority and rental shall be adjusted to the date of
such taking, but Tenant shall be permitted to file a separate claim for any
personal property of Tenant which is taken. The foregoing notwithstanding,
Tenant shall be entitled to claim, prove and receive in the condemnation
proceedings such awards as may be allowed for relocation expenses and for
fixtures and other equipment installed by it which shall not, under the terms of
this Lease, be or become the property of Landlord at the termination hereof, but
only if such awards shall be made by the condemnation court in addition to and
stated separately from the award made by it for the land and the building or
part thereof so taken. Tenant shall have the right to terminate this Lease if
the portion of the Property, Building or Premises taken materially interferes
with Tenant's use of the Premises.
. If the nature, location or extent of any condemnation affecting the
Building is such that Landlord elects in good faith to demolish the Building,
then Landlord may terminate this Lease by giving at least sixty (60) days'
written notice of termination to Tenant at any time after such condemnation and
this Lease shall terminate on the date specified in such notice.
. Use of Premises. The Premises shall be used and occupied by Tenant solely for
the purpose of general office use and as permitted in Article 56, and for no
other purpose whatsoever. Tenant shall permit Landlord to transmit heat, air
conditioning and electric current through the Premises at all times at
Landlord's discretion. The Premises shall not be used for any illegal purpose or
in violation of any valid regulation of any governmental body, or in any manner
to (i) create any nuisance or trespass; (ii) annoy or embarrass Landlord or any
other tenant of the Property; (iii) vitiate any insurance; or (iv) alter the
classification or increase the rate of insurance on the Building to a rate
greater than payable for similar buildings.
. Repairs by Tenant. Tenant agrees to maintain the Premises and the fixtures
therein in good order and in a condition commensurate with comparable or similar
office buildings during the term of this Lease at its sole cost and expense, and
will, at the expiration or other termination of the term hereof, surrender and
deliver up the same and all keys, locks and other fixtures connected therewith
(except only office furniture, business equipment, trade fixtures and
telecommunications equipment, cable and wiring, but Tenant shall repair any such
damage caused by such removal) in like good order and condition ordinary wear
and tear excepted. With respect to property damage only, Landlord will be liable
for property damage caused by the negligence of Landlord or its agents or
employees, subject, however, to the waiver of subrogation set forth in paragraph
18.e.
. Repairs by Landlord. Landlord shall have no duty to Tenant to make any repairs
or improvements to the Premises except structural repairs necessary for safety
and tenantability, and then only if not brought about by any act or neglect of
Tenant, its agents, employees or invitees. Landlord shall not be liable for any
damage (including any consequential damages or lost profits) caused to the
property of Tenant, its agents, employees or invitees, due to the Building or
any part of appurtenances thereof being improperly constructed or being or
becoming out of repair, or arising from the leaking of gas, water, sewer or
steam pipes, or from electricity, or from any other cause whatsoever, and Tenant
agrees to look solely to its own insurance for compensation for any such damage
or loss. Tenant agrees to endeavor to report immediately in writing to Landlord
any defective condition in or about the Premises known to Tenant.
. Roof Rights. Except as provided in Article 54, Landlord shall have the
exclusive right to use all or any portion of the roof of the Building for any
purposes.
. Landlord's Remedies Upon Default. In the event Tenant shall default in the
payment, when due, of any installment of rent or other charges or money
obligation to be paid by Tenant hereunder (all of which monetary obligations of
Tenant shall bear interest at the highest rate allowable by law, not to exceed
eighteen percent (18%) per annum, from the date due until paid in full) within
five (5) business days after the date any such amount is due; provided, however,
that Tenant shall not be in default with respect to the first two (2) monetary
payments received after such five (5) day period in any Lease Year until five
(5) days after Tenant's receipt of written notice of such late payment; or if
Tenant shall default in performing any of the covenants, terms or provisions of
this Lease (other than the payment, when due, of any of Tenant's monetary
obligations hereunder) or any of the Rules and Regulations now or hereafter
established by Landlord to govern the operation of the building and fails to
cure such default within 30 calendar days after written notice thereof from
Landlord; provided, however, that, solely with respect to non-monetary defaults
which cannot with due diligence and best efforts be cured within such thirty
(30) day period if, within such thirty (30) day period Tenant commences and
thereafter diligently pursues the cure of any such non-monetary default, Tenant
shall be granted an additional reasonable period of time to effect a cure; or if
Tenant shall abandon the Premises and discontinue timely rental payments; or if
Tenant is adjudicated a bankrupt; or if a permanent receiver is appointed for
Tenant's property; or if, whether voluntarily or involuntarily, Tenant takes
advantage of any debtor relief proceedings under any present or future law,
whereby the rent or any part thereof, is or is proposed to be, reduced or
payment thereof deferred; or if Tenant makes an assignment for the benefit of
creditors or if Tenant's property or effects should be levied upon or attached
under process against Tenant, not satisfied or dissolved within 10 calendar days
after written notice from Landlord to Tenant to obtain satisfaction thereof;
then, and in any of said events, Landlord, at its option may pursue any one or
more of the following remedies without any notice or demand whatsoever:
. Landlord, at its option, may at once, or at any time thereafter
terminate this Lease by written notice to Tenant, whereupon this Lease shall end
concurrently with the receipt by Tenant of such notice. Upon such termination by
Landlord, Tenant will at once surrender possession of the Premises to Landlord
and remove all of Tenant's effects therefrom, and Landlord may forthwith
re-enter the Premises and repossess himself thereof, and remove all persons and
effects therefrom, using such force as may be necessary, without being guilty of
trespass, forcible entry, detainer or other tort.
. Landlord may, without terminating this Lease, enter upon and take
possession of the Premises and expel or remove Tenant and any other person who
may be occupying the Premises or any part thereof, without being liable for
prosecution or any claim for damages therefor, and, if Landlord so elects, make
such alterations and repairs as, in Landlord's judgment, may be necessary to
relet the Premises, and relet such space or any part thereof for such rent and
for such period of time and subject to such terms and conditions as Landlord may
deem advisable and receive the rent therefor. Upon each such reletting, all rent
received by Landlord from such reletting shall be applied first to the payment
of any indebtedness other than rent due hereunder from Tenant to Landlord,
including interest thereon; second, to the payment of any loss or expense of
such reletting, including brokerage fees, reasonable attorneys' fees,
advertising and promotion expenses and the cost of such alterations and repairs;
third, to the payment of rent due and unpaid hereunder, together with interest
thereon as herein provided; and the residue, if any, shall be held by Landlord
and applied in payment of future rent as the same may become due and payable
hereunder. Tenant agrees to pay to Landlord, on demand, any deficiency that may
arise by reason of such reletting. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such prior default.
. In the event Landlord terminates this Lease in accordance with the
provisions of this paragraph 16, Landlord may, in addition to any other remedy
it may have, recover from Tenant all damages and expenses Landlord may suffer or
incur by reason of Tenant's default hereunder, including, without limitation,
the cost of recovering. the Premises, reasonable attorneys' fees and the worth
at the time of such termination of the excess, if any, of the amount of rent and
charges equivalent to the rent reserved in this Lease for the remainder of the
stated term over the then reasonable rental value of the Premises for the
remainder of the stated term based upon a reduction to present value calculation
at the rate of ten percent (10%), all of which sums shall become immediately due
and payable by Tenant to Landlord upon demand of Landlord.
. Anything in this Lease to the contrary notwithstanding, in order to
cover the extra expense involved in handling delinquent payments, Tenant shall
pay a "late charge" of Two Hundred Fifty and No/100 Dollars ($250.00) when any
installment of rent (basic or otherwise, as may be considered additional rental
under this Lease) is paid more than seven (7) business days after the due date
thereof. It is hereby understood that this charge is for extra expenses incurred
by the Landlord in processing the delinquency and shall not be considered
interest.
. Pursuit of any or the foregoing remedies shall not preclude Landlord
from pursuing any other remedies herein or at law or in equity provided, nor
shall pursuit of any remedy by Landlord constitute a forfeiture or waiver of any
rent due to Landlord hereunder or of any damages accruing to Landlord by reason
of Tenant's violation of any of the covenants and provisions of this Lease.
. Services of Landlord. . Landlord shall furnish reasonably adequate electric
current, elevator service, water and lavatory supplies during normal business
hours, and normal and usual cleaning and janitorial service for the Premises and
Building Common Areas only after business hours. Landlord further agrees to
furnish heat and air conditioning in its reasonable judgment sufficient to
reasonably cool or heat the Premises from 8:00 a.m. to 6:00 p.m., Mondays
through Fridays, inclusive; and from 9:00 a.m. to 1:00 p.m., Saturdays (said
services not being furnished on Sundays or legal holidays), provided, however,
that Landlord shall not be liable for failure to furnish or for suspension or
delay in furnishing such services clue to breakdown, maintenance, or repair
work, strike, riot, civil commotion, governmental action or any other cause
beyond the reasonable control of Landlord, or for interruptions of service for
reasonable periods in connection with construction work being performed in the
Building, notwithstanding, Landlord shall use reasonable efforts not to affect
Tenant's use of Building/Premises as a result of above. Interruption of
service(s) that continues beyond three (3) consecutive days shall entitle Tenant
to an abatement of rent.
. If Landlord defaults in its obligations to maintain and repair the
Premises in accordance with the provisions of this Lease, and such failure of
Landlord will have a material adverse effect on Tenant's ability to operate its
business in the Premises, and any such failure continues for a period in excess
of Thirty (30) days after Landlord receives Tenant's written notice of such
default, then Tenant may, at its option and at its risk, perform any such
maintenance or repairs; provided, however, that if any such default of Landlord
cannot with due diligence and commercially reasonable efforts be cured by
Landlord within the thirty (30) day period after receipt of Tenant's notice, the
period for cure by Landlord shall be extended if, within such thirty (30) day
period Landlord commences and thereafter diligently pursues the cure of any such
default.
. If Tenant elects to cure a default of Landlord, then the reasonable
costs incurred by Tenant in curing any default of Landlord in accordance with
paragraph (b) above shall be reimbursed to Tenant by Landlord within thirty days
after Landlord's receipt of (i) Tenant's invoice for such costs, and (ii) copies
of paid invoices for all such work or expenses incurred, and (iii) if
applicable, lien waivers from all contractors, subcontractors, material
suppliers or other parties having lien rights involved in the performance of
such work. Tenant shall defend, indemnify and save Landlord harmless from and
against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to or interference
with property or the premises of other tenants arising from or out of any
exercise of any rights granted to Tenant under this Article 17.
. Pursuit of any of the foregoing remedies shall not preclude Tenant
from pursuing any other remedies herein or at law or in equity provided, nor
shall pursuit of any remedy by Tenant constitute a forfeiture or waiver of any
amount due to Tenant hereunder or of any damages accruing to Tenant by reason of
Landlord's violation of any of the covenants and provisions of this Lease.
. If Landlord defaults in its obligations to maintain and repair the
Building in accordance with the provisions of this Lease, and such failure of
Landlord will have a material adverse effect on Tenant's ability to operate its
business in the Premises, and any such failure continues for a period in excess
of thirty (30) days after Landlord receives Tenant's written notice of such
default, then Tenant may pursue any remedy available at law or in equity with
respect to such default of Landlord; provided, however, that if any such default
of Landlord cannot with due diligence and commercially reasonable efforts be
cured by Landlord within the thirty (30) day period after receipt of Tenant's
notice, the period for cure by Landlord shall be extended if, within such thirty
(30) day period Landlord commences and thereafter diligently pursues the cure of
any such default.
. Insurance.
. Tenant agrees that it will indemnify and save Landlord harmless from
any and all liabilities, damages, causes of action, suits, claims, judgments,
costs and expenses of any kind (including reasonable attorneys' fees) (i)
relating to or arising from or in connection with the possession, use,
occupation, management, repair, maintenance or control of the Premises or any
portion thereof, or (ii) arising from or in connection with any act or omission
or Tenant or Tenant's agents, employees or invitees, or (iii) resulting from any
injury to person or property or loss of life sustained in or about the Premises.
To assure such indemnity, Tenant shall carry and keep in full force and effect
at all times during the term of this Lease for the protection of Landlord and
Tenant herein, commercial general liability insurance with limits of at least
Two Million Dollars ($2,000,000.00) combined single limit for each occurrence,
with an approved insurance company, and Tenant shall deliver to Landlord a copy
of said policy or a certificate showing the same to be in full force and effect
prior to the Rent Commencement Date and at least annually thereafter.
. Throughout the Lease Term, Tenant shall insure, for their full
insurable value, the contents of the Premises, including furnishings, fixtures
and equipment used or installed in the Premises by or on behalf of Tenant, and
the other personal property of Tenant in the Premises, against loss due to fire
and other casualties included in broad form property insurance policies, with an
agreed amount endorsement and replacement cost coverage.
. Said public liability and property damage insurance policies and any
other insurance policies carried by Tenant with respect to the Premises, shall
(i) be issued by good and solvent insurance companies qualified to do business
in the Commonwealth of Virginia and reasonably satisfactory to Landlord; (ii) be
written as primary policy coverage and not contributing with or in excess of any
coverage which Landlord may carry; (iii) provide for at least 30 days' prior
written notice to Landlord of any cancellation or other expiration of such
policy or any defaults thereunder, Tenant's liability insurance policy shall
name Landlord and Landlord's managing agent (and, if so requested, Landlord's
mortgagee) as additional insureds. Neither the issuance of any insurance policy
required hereunder, nor the minimum limits specified herein with respect to the
Tenant's insurance coverage, shall be deemed to limit or restrict in any way
Tenant's liability arising under or out of this Lease.
. Landlord shall maintain (i) public liability insurance on the common
areas of the Building in amounts not less than those set forth in paragraph (a)
of this Article 18 and (ii) Property Insurance for full replacement cost of the
Building in an amount sufficient to avoid co-insurance.
. () To the extent permitted by law, each of Landlord and Tenant hereby
releases the other, to the extent of all insurance carried (or required to be
carried) by each party under the terms of this Lease, from liability for any
loss or damage caused by fire or other of the extended casualties insured
against; provided, however, that this release shall be in force and effect only
with respect to loss or damage occurring during such time as the releasing
party's insurance policy contain a clause or clauses which provides that: (i)
the insurance company waives subrogation or consents to a waiver of right of
recovery, and (ii) such waiver of subrogation or consent to a waiver of a right
of recovery does not adversely affect or prejudice said policy or the releasing
party's right of full recovery thereunder. Landlord's release of Tenant under
this subparagraph (e) is expressly conditioned upon Tenant's full cooperation
with Landlord's insurance carrier in inspections of the Premises and Tenant's
compliance with all requirements imposed by Landlord's insurance carrier with
respect to any activities in or use of the Premises which increases the risk of
loss to the Building, Property or the Premises.
() If it party advises the other party that a clause of the type
described in paragraph (1) above is (i) not obtainable, or (ii) only obtainable
at additional cost, then such party shall not be obligated to obtain a waiver;
provided, however, that with respect to an inability to obtain a waiver due to
the imposition of additional cost, the party shall promptly notify the other
party of the amount of such additional cost and, if the party desiring that the
other party obtain a waiver agrees in writing to pay the additional cost of
obtaining the waiver, then, upon receipt of such payment, that party shall
obtain a waiver of subrogation for the benefit of the other party, as described
in paragraph (1) above. To the extent that either party is permitted to self
insure as to its personal property located in the Premises, that party will
nevertheless be deemed to be insured for such personal property for the purposes
of this subparagraph (e). . Property at Tenant's Risk. It is understood and
agreed that all personal property in the Premises, of whatever nature, whether
owned by Tenant or any other person, shall be and remain at Tenant's sole risk
and Landlord shall not assume any liability or be liable for any damage to or
loss of such personal property, arising from the bursting, overflowing, or
leaking of the roof or of water, sewer, or steam pipes, or from heating or
plumbing fixtures, or from the handling of electric wires or fixtures, or from
theft or vandalism or from any other cause whatsoever, unless such damage is
caused by negligence of Landlord, its agents or employees (but expressly subject
to the waiver of subrogation set forth in paragraph 18.e.)
. Assignment; Subletting.
. Neither Tenant, nor any of its permitted successors or assigns, shall
transfer, assign, mortgage, encumber, or, by operation of law or otherwise,
pledge, hypothecate, or assign all or any of its interest in this Lease, or
subict or permit the Premises, or any part thereof, to be used by others,
including, but not by way of limitation, concessionaires or licensees of Tenant,
without the prior written consent of Landlord, in each instance, which consent
Landlord shall not unreasonably withhold, condition or delay if Tenant fully
complies with the requirements of this Article 20 and other provisions of this
Lease. Any such subletting or assignment shall be referred to as a "Transfer"
(as further defined in this Article 20, subparagraph (b) below), and the person
to whom Tenant's interest is transferred shall be referred to as a "Transferee".
. For the purposes of this Article 20, the term "Transfer" shall also
include the following circumstances:
() if Tenant or any guarantor of this Lease is a corporation (other
than a corporation, the outstanding voting stock of which is listed on a
national securities exchange, as defined in the Securities Exchange Act of
1934), if the shares of such corporation are transferred by sale, assignment,
bequest, inheritance, operation of law or otherwise (including, without
limitation, a transfer to or by a receiver or trustee in federal or state
bankruptcy, insolvency or other proceeding), so as to result in or make possible
a change in the present control of such corporation;
() if Tenant or any guarantor of this Lease is a partnership, any
change in control or ownership of such partnership;
() any transfer by sale, assignment, bequest, inheritance, operation of
law or other disposition of all or substantially all of the assets of Tenant or
any guarantor which results in or makes possible a change in the present control
of the business of Tenant or any such guarantor;
() any other change in ownership of Tenant, any guarantor of this
Lease;
() any subletting or assignment which occurs by operation of law,
merger, consolidation, or reorganization; or
() any sale of all, or substantially all, of Tenant's assets unless,
in connection therewith, this Lease is assigned to the acquiring party, as
provided in paragraph 20(i) below.
In no event may Tenant assign this Lease, or sublease the Premises, if
Tenant is in default under this Lease.
. In the event that Tenant desires to effect a Transfer hereunder,
Tenant shall give Landlord written notice (the "Transfer Notice") thereof. To be
effective, the Transfer Notice after the initial subleasing effort shall be
accompanied by Tenant's check, payable to the order of Landlord, or Landlord's
Agent, in an amount equal to the greater of (i) $500.00 or (ii) one percent (1%)
of the Minimum Rent to compensate Landlord (not to exceed $1500.00) for the cost
of reviewing the proposed Transfer and specify the proposed Transferee, and the
proposed terms of the Transfer, and contain such information about the proposed
Transferee, its experience, its financial situation, its methods of operation,
and provided its business operation being consistent with those found in
comparable office buildings, as a prudent businessman would require in making
the Transfer decision. Tenant specifically agrees to apprise Landlord of any
adverse or negative information in its possession concerning the proposed
Transfer and the proposed Transferee. The Transfer Notice shall also contain a
certificate by Tenant (or an officer or general partner of Tenant if Tenant is a
corporation or partnership) of all "Transfer Consideration" (as defined below,
or payable in connection with the proposed Transfer. Within five (5) days during
the initial subleasing and forty-five (45) days thereafter of the receipt of the
Transfer Notice Landlord shall, by written notice to Tenant, elect (i) to permit
the proposed Transfer; (ii) to terminate this Lease with respect to the portion
of the Premises proposed to be Transferred, but Tenant may, within five (5)
business days after receipt of Landlord's notice of termination, rescind its
request for consent to a Transfer, in which event this Lease will not terminate;
(iii) to sublet with the right to further sublet from Tenant for the balance of
the term of this Lease (a) all of the Premises, or (b) only so much of the Lease
Premises as Tenant proposed to Transfer, at the same rental as Tenant is
obligated to pay to Landlord hereunder; or (iv) to deny consent to the proposed
Transfer, in which event Tenant shall continue to occupy the Lease Premises and
comply with all of the terms and conditions hereof. Notwithstanding the
foregoing, Landlord shall not have the options provided by (ii), (iii), and (iv)
of this subparagraph (c) with regard to the initial subletting of up to one-half
of the Premises as provided in accordance with the provisions of paragraph 20.h.
. If this Lease is Transferred under the definition of a Transfer (as
defined in Article 20, subparagraphs (a) and (b)), the Transferee shall assume
by written instrument all of Tenant's obligations under this Lease and such
Transferee, at least five (5) days prior to the effective date of the permitted
Transfer, shall deliver to Landlord the proposed sublease, assignment and
assumption agreement or other instrument evidencing the Transfer and the
Transferee's undertaking to perform Tenant's obligations under this Lease.
Except for the Transfer as permitted in this Article 20, subparagraph i, all of
such documents shall be subject to Landlord's prior written approval not to be
unreasonably withheld, conditioned or delayed. In the event of any Transfer,
including a permitted Transfer, Tenant shall continue to be liable hereunder,
and shall not be released from performance hereunder. In addition to the Rent
reserved hereunder, except as provided in paragraph 20.h. below and except in
the case of a Transfer as specified in this Article, subparagraph i below,
Tenant shall pay to Landlord all monies, property and other consideration of
every kind whatsoever paid or payable to Tenant in consideration of or related
to such Transfer and for all property transferred to the Transferee, as all or
part of the consideration including, without limitation, fixtures, other
Leasehold Improvements, furniture, equipment and furnishings (collectively, all
of the foregoing monies, property and other consideration shall be referred to
as the "Transfer Consideration"), but excluding bona fide consideration paid for
transfer of Tenant's property. Following an assignment of this Lease, Landlord
shall send the named Tenant any notice of default by the approved Transferee.
. Any Transfer, except as provided in subparagraph i below, without
Landlord's consent, whether as a result of any act or omission of Tenant, or by
operation of law or otherwise, shall not be binding upon Landlord, and shall
confer no rights upon any third person. Each such unpermitted Transfer shall,
without notice or grace period of any kind, constitute a default by Tenant under
this Lease. The acceptance by Landlord of the payment of Rent following any
Transfer prohibited by this Article 20 shall not be deemed to be a consent by
Landlord to any such Transfer, an acceptance of the Transferee as a tenant, a
release of Tenant from the performance of any covenants herein contained, or a
waiver by Landlord of any remedy of Landlord under this Lease, although amounts
actually received shall be credited by Landlord against Tenant's rent
obligations. Consent by Landlord to any one Transfer shall not constitute a
waiver of the requirement for consent to any other Transfer. No reference in
this Lease to assignees, concessionaires, subtenants or licensees shall be
deemed to be a consent by Landlord to the occupancy of the Lease Premises by any
such assignee, concessionaire, subtenant or licensee.
. If Tenant is a corporation, limited liability company or partnership,
Tenant represents that the ownership and power to vote its entire outstanding
capital stock or partnership interests belongs to and is vested in the persons
listed on Exhibit "E". The foregoing provisions of this paragraph (f) shall not
apply to a publicly held entity whose outstanding voting stock is listed on a
national securities exchange, as defined in the Securities Exchange Act of 1934.
. If any sublease or assignment provides that the subtenant or assignee
is to pay any amount in excess of the rent and other charges due under this
Lease, then whether such excess is in the form of an increased monthly or annual
rental, a lump sum payment (excluding a bona fide security deposit), payment for
the sale, transfer or lease of Tenant's fixtures, leasehold improvements,
furniture and other personal property, but excluding bona fide consideration
paid for transfer of Tenant's property, or any other form (and if the subleased
or assigned space does not constitute the entire Premises, the existence of such
excess shall be determined on a pro rata basis), but excluding bona fide
consideration paid for transfer of Tenant's property, Tenant shall pay to
Landlord any such excess as additional rent no later than ten (10) days after
Tenant's receipt thereof.
. Notwithstanding anything set forth in this Article 20 to the
contrary, if Tenant fully complies with the requirements and conditions of this
Article 20 and other provisions of this Lease, then, on one (1) occasion during
the term of this Lease (including any Option Terms), Tenant may sublease one
half (1/2) or less of the floor area of the Premises, to multiple tenants, for
the purpose set forth in this Lease, provided, however, that in any such event,
Tenant shall continue to remain fully liable under this Lease for the
performance of all of the terms contained herein. Notwithstanding anything set
forth herein to the contrary, with respect to the first such sublease of a
portion of the Premises Landlord shall not be entitled to receive any of the
Transfer Consideration, but after the first such Subletting, one-half (1/2) of
all Transfer Consideration and all rental amounts and any additional payments
arising under any sublease in excess of any rentals contained in this Lease,
shall be payable to Landlord. The liability of any Guarantor of this Lease shall
not be affected as a result or any assignment permitted under this subparagraph
(h). Landlord's agreement to permit a sublease as provided for in this paragraph
shall not create any rights in the subtenant against Landlord or any privity
between Landlord and the subtenant named in the sublease. In the event of any
conflict between the provisions set forth in any sublease and the provisions of
this Lease, the provisions of this Lease shall control with respect the rights
and remedies of Landlord. Notwithstanding anything in the foregoing document to
the contrary, any sublease shall be expressly under and subject to the
provisions of this Lease, and the sublease shall not be deemed Landlord's
consent to (i) any action of the subtenant provided for in the sublease, or (ii)
the approved or acceptance by Landlord of any terms or conditions contained in
the sublease, or (iii) the assumption of any obligations by Landlord not
expressly provided for in this Lease.
. Notwithstanding anything contained herein to the contrary (including
the obligations any procedures as specified in this Article 20 subparagraphs (c)
or (g) herein), Tenant may, without the prior written consent of Landlord,
assign this Lease for the use and occupation of the Premises solely for the
purpose set forth in Article 12 to the following:
() Tenant's parent or subsidiary corporation or to a corporation under
common ownership with and controlled by the same persons who control Tenant, or
() any party which acquires substantially all of the assets of Tenant,
or
() to a corporation into which Tenant merges or consolidates,
provided, however, that in each such event described in the above subparagraphs
(i) through (iii):
() such assignee shall assume in writing all of Tenant's obligations
hereunder; and
() Tenant continues to remain liable under this Lease for the
performance of all of the terms contained herein including but not limited to
the payment of Base Rent, and all Additional Rent due under this Lease;
The provisions (i) through (iii) of this paragraph (i) shall not permit
a Transfer in the event that Tenant is acquired by another corporation and
becomes a subsidiary thereof, (x) unless Tenant continues to be operated as a
separately identified company, substantially in the same manner as before such
acquisition, or (y) if, after such acquisition, or as a result thereof, Tenant's
net worth will decline by twenty-five percent (25%) or more, unless in such case
of reduced net worth, the parent of the party acquiring Tenant agrees to
guaranty Tenant's obligations under this Lease. The liability of any Guarantor
of this Lease shall not be affected as a result of any assignment permitted
under this subparagraph (i).
No Transfer will be permitted under this subparagraph (i) if such
Transfer would result in:
() a Transfer of this Lease or the ownership interests in any
Transferee to an entity not affiliated with Tenant through common ownership and
control (except for a purchase of Tenant's assets, in accordance with the
provisions set forth above), or
() a Transfer of this Lease to an entity outside the ownership family
to which Tenant belongs (except for a purchase of Tenant's assets, in accordance
with the provisions set forth above) as a means of defeating the other
provisions of this Article 20 which require Landlord's consent to a Transfer.
Liquidated Damages:
Tenant acknowledges that it is important to Landlord to know of the occurrence
of an assignment and the identity an assignee, and that damage to Landlord will
be difficult to ascertain if Tenant fails to notify Landlord of an assignment
permitted under this paragraph 20 (i). Therefore, if Tenant fails to notify
Landlord of any such assignment, Tenant shall be in default under this Lease;
provided, however, that
(1) if Tenant's failure to notify is due to negligence or inadvertence, Tenant
shall pay to Landlord liquidated damages equal to the lesser of (A) One Hundred
Dollars ($100.00) per day for each day after the occurrence of any such
assignment until Landlord receives notice of the assignment or (B) Five Thousand
Dollars ($5,000.00), or (2) Tenant's failure to notify is intentional (which
Tenant may contest if Tenant disputes Landlord's claim that such failure was
intentional), then Landlord shall be entitled to pursue any remedy available
under this Lease or at law (in equity and/or collect liquidated damages equal to
the amount of One Hundred Dollars ($100.00) per day for each day after the
occurrence of any such assignment until Landlord receives notice of the
assignment.
. Signs.
. No sign, advertisement or notice shall be inscribed, painted, affixed
or displayed on the windows or exterior walls of the Premises or on any public
area of the Building, except the directories and the office doors, and then only
in such places, numbers, sizes, colors and style as are approved by Landlord and
which conform to all applicable laws and/or ordinances.
Landlord agrees to install at Tenant's cost signage on the Greensboro Drive side
of the building above the twelfth (12th) floor parapet on the Greensboro Drive
side of the building. This signage shall be illuminated (if permitted by law)
and shall not exceed 100 square feet and design and location of installation
shall be subject to Landlord's approval.
. Rules and Regulations. Tenant shall at all times comply with the rules and
regulations set forth on Exhibit C attached hereto, and with any additions
thereto and modifications thereof adopted from time to time by Landlord, and
each such rule or regulation shall be deerned to be a covenant of this Lease to
be performed and observed by Tenant.
. Intentionally Deleted.
. Parking. Tenant may lease from Landlord, during the term of this Lease, no
more than 87 parking spaces in the parking garage adjacent to the Building
without Landlord's consent. All parking spaces are leased on a non-exclusive
basis, provided, however, Landlord reserves the right to designate or assign
specific parking spaces for Tenant's use or for the use of other Building
tenants in a non-discriminatory manner, and the further right to redesignate or
relocate, from time-to-time, any such designated or assigned spaces. During the
first Lease Year the monthly rental for each parking space leased to Tenant is
Forty Dollars ($40.00). The aforesaid parking space rental shall escalate
annually by the same percentage, in the same manner and at the same time as the
Initial Base Rent escalates pursuant to paragraph 4 above. Monthly rental for
parking spaces shall be payable, in advance, at the same time that the Initial
Base Rent is payable. Tenant will not assign or sublease its parking rights
hereunder, and any attempted assignment or sublease shall be deemed a prohibited
assignment or sublease pursuant to the terms of paragraph 20 above. Landlord
reserves the right to transfer the management and operation of the parking
garage to a third party. Tenant agrees to comply with, and abide by, any and all
reasonable traffic and/or parking rules and regulations imposed by Landlord from
time-to-time that do not materially adversely affect Tenant's original
privileges.
. Landlord Access. Landlord may enter the Premises during business hours with
reasonable advance notice and at Tenant's option, Landlord may be accompanied by
a designated representative of Tenant except in cases of emergency to exhibit
the same to prospective purchasers, mortgagees or tenants, to inspect the
premises to see that Tenant is complying with all its obligations hereunder, to
make repairs required of Landlord under the terms hereof or to make repairs to
Landlord's adjoining property.
. Subordination.
This Lease is subject and subordinate to all ground or underlying leases and to
all mortgages or deeds of trust, which may now or hereafter affect or encumber
the Building or the real property of which the Premises form a part and to all
renewals, modifications, consolidations, replacements or extensions thereof.
This paragraph shall be selfoperative and no further instrument of subordination
shall be required. In confirmation of any such subordination, Tenant shall
execute within ten (10) calendar days after receipt, any certificate or
agreement that Landlord may reasonably so request. Tenant covenants and agrees
to attorn to Landlord or to any successors to Landlord's interest in the
Premises, whether by sale, foreclosure or otherwise.
Notwithstanding the foregoing, in the event any such ground lessor or mortgagee
shall elect to make the lien of this Lease prior to the lien of its ground
lease, mortgage or doed of trust, then, upon such party giving Tenant written
notice to such effect, this Lease shall be deemed to be prior in lien to the
lien of such ground lease, mortgage or deed of trust, whether dated prior or
subsequent thereto.
. Mortgagee Protection. Tenant agrees to give any Mortgagees and/or Trust Deed
Holders, by registered mail, a copy of any Notice of Default served upon
Landlord, provided that prior to such notice Tenant has been notified, in
writing (by way of Notice of Assignment of' Rents and Leases, or otherwise) of
the address of such Mortgagees and/or Trust Deed Holders. Tenant further agrees
that if Landlord shall have failed to cure such default within the time provided
for in this Lease, then the Mortgagees and/or Trust Deed Holders shall have an
additional ten (10) business days within which to cure such default or if such
default cannot be cured within that time, then such additional time as may be
necessary if within such ten (10) business days, any such Mortgagee and/or Trust
Deed Flolder has commenced and is diligently pursuing the remedies necessary to
cure such default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure), in which event this Lease shall
not be terminated while such remedies are being so diligently pursued. Tenant
agrees that in the event of the sale of the property, by foreclosure or deed in
lieu thereof, the purchaser at such sale shall only be responsible for the
return of any security deposits paid by Tenant to Landlord in connection with
this Lease to the extent that such purchaser actually receives such security
deposit and acknowledges receipt thereof in writing.
. Contribution. Landlord shall contribute an amount equal to the lesser of (1)
$290,480.00 or (ii) the actual cost of alterations of the Premises by Tenant.
Such alterations shall be in accordance with Article 9 of this Lease. Landlord
shall reimburse Tenant for the cost of such alterations upon receipt of paid
invoices and lien waivers from Tenant.
. Hold-Over. If Tenant shall not immediately surrender the Premises the day
after the end of the term hereby created, then Tenant shall, by virtue of (his
agreement, become, at Landlord's option, either (a) a tenant at sufferance, or
(b) a tenant from month-to-month. In either of such events, rent shall be
payable at a monthly or daily rate, as the case may be, of 150% the Minimum Rent
and Additional Rental payable by Tenant immediately prior to the expiration or
termination of the term, with said tenancy to commence on the first day after
the end of the term above demised; and said tenancy shall be subject to all of
the conditions and covenants of this Lease insofar as such covenants and
conditions are applicable thereto. Nothing contained in this Lease shall be
construed as a consent by Landlord to the occupancy or possession of the
Premises after the expiration of the term of this Lease. If Landlord fails to
make an election under clause (a) or (b) within ten (10) days after the
expiration or termination of the term, the hold-over tenancy shall be deemed to
be a tenancy from month-to-month. If Tenant holds over a month-to-month tenant,
each party hereto shall give to the other at least thirty (30) days' written
notice to quit the Premises (any right to a Ionger notice period being hereby
expressly waived), except in the event of non-payment of rent in advance or of
the other Additional Rents provided for herein when due, or of the breach of any
other covenant by the said Tenant, in which event Tenant shall not be entitled
to any notice to quit, the usual thirty (30) days' notice to quit being
expressly waived; provided, however, that in the event Tenant shall hold over
after expiration of the term hereby created, and if Landlord shall desire to
regain possession of said Premises promptly at the expiration of the term
aforesaid, then at any time prior to the date Landlord makes (or is deemed to
have made) its election under clause (b) of this Article 29, Landlord at its
option, may re-enter and take possession of the Premises forthwith, without
process, or by any legal action or process in force in the state in which the
Premises is located; provided, however, that if Landlord have accepted rent for
any period beyond the expiration of the term and Tenant is not then in default
under any of the provisions of this Lease, Landlord shall promptly refund to
Tenant an amount equal to any excess rental received by Landlord with respect to
any period alter Landlord exercises its right to re-enter the premises under
this Article 29.
. Estoppel Certificates. Tenant agrees, at any time and from time to time, upon
not less than five (5) calendar days' prior written notice from Landlord, to
execute, acknowledge and deliver to Landlord or to such person(s) as may be
designated by Landlord, a statement in writing (i) certifying that Tenant is in
possession of the Premises, has unconditionally accepted the same and is
currently paying the rents reserved hereunder, (ii) certifying that this Lease
is unmodified and in full force and effect (or if there have been modifications,
that the Lease is in fall force and effect as modified and stating the
modifications), (iii) stating the dates to which the rent and other charge
hereunder have heen paid by Tenant, and (iv) stating whether or not, to the best
of Tenant's knowledge, Landlord is in default in the performance of any
covenant, agreement or condition contained in this Lease, and, if so, specifying
each such default in detail. If Tenant fails to execute and return any such
agreement to Landlord within such ten (10) day period, then, in addition to any
other remedies available with respect to such default of Tenant, Landlord may
elect to treat the information in the estoppel certificate prepared by Landlord
as true and correct and such information shall be binding on Tenant as if Tenant
had signed such certificate. Any such statement, delivered (or deemed delivered)
pursuant hereto may be relied upon by any owner, prospective purchaser,
mortgagee or prospective mortgagee of the Building or of Landlord's interest
therein.
. Quiet Enjoyment. Landlord warrants that it has the right to make this Lease
for the terrn aforesaid and that it will put Tenant into complete and exclusive
possession of the Premises. Landlord covenants that if Tenant pays the rent and
all other charges provided for herein, performs all of its obligations provided
for hereunder and observes all of the other provisions hereof, Tenant shall at
all times during the term hereof peaceably and quietly have, hold and enjoy the
Premises, without any interruption or disturbance frorn Landlord, or anyone
claiming through or under Landlord, subject to the terms hereof.
. Delay. In the event Landlord for any reason is unable to deliver possession of
the Premises to Tenant within thirty (30) days after the date of this Lease,
Tenant may, at its Option, upon written notice, terminate this Lease and, except
for the return of any security deposit or prepaid rent, the parties hereto shall
have no further obligation or liability to each othor. In the event that
Landlord does not so terminate this Lease, at such time as Landlord tenders
possession of the Premises to Tenant in writing, Tenant shall commence payment
of rent pursuant to paragraph 3 hereof, and the expiration date of the term of
this Lease shall be extended for a period equal to the period of such delay. In
the event of any such delay, Landlord and Tenant shall execute a Commencement
and Estoppel Agreement as provided in Article 2, specifying the date on which
possession of the Premises was tendered by Landlord.
. Intentionally Deleted.
. Financial Statements. Tenant, upon Lease execution, and thereafter upon
written request by Landlord, will provide Landlord with a copy of its current
financial statements, consisting of a balance sheet, an earnings statement,
statement of changes in financial position, statement of changes in Tenant's
equity, and related footnotes, prepared in accordance with gencrally accepted
accounting principles. Such financial statements must be either certified by a
CPA or sworn to as to their accuracy by Tenant's most senior official and its
chief financial officer. The financial statements provided must be as of a date
not more than 12 months prior to the date of request. Landlord shall rertain
such statements in confidence, but may provide copies to lenders and potential
lenders. If Tenant is publiclytraded, Landlord will acceptTenant's 10-K and IO-Q
reports to the S.E.C.
in lieu of the above.
. Modifications Due to Financing. If, in connection with obtaining temporary or
permanent financing for the Building or the land upon which the Building is
located, any such lender shall request reasonable modifications of this Lease as
a condition to stich financing, Tenant agrees that Tenant will not unreasonably
withhold, delay or defer the execution of an agreement (of modification of this
Lease, provided such modifications do not increase the financial obligations of
Tenant hereunder or materially adversely affect the leasehold interest hereby
created or Tenant's reasonable use and enjoyment of the Premises.
. Attorneys' Fees. The non-prevailing party shall reimburse the prevailing party
upon demand for any costs or expenses, including reasonable attorney fees,
incurred in connection with the enforcement of obligations hereunder. Any and
all costs or expenses incurred by Landlord pursuant to the provisions hereof
shall be considered as Additional Rent hereunder. Tenant acknowledges that it
has engaged counsel in connection with the negotiation of this Lease, or that
Tenant has freely decided to enter into this Lease without engaging the services
of counsel.
. Notices. All notices reqidred or desired to be given hereunder by either party
to the other shall be sent, postage prepaid, by certified or registered mail or
by national overnight delivery service (with receipt therefor). All rents and
other monetary obligations arising hereunder, and all notices to the respective
parties shall be addressed and sent as follows:
If to Landlord: Rent Checks Payable to:
B. F. Saul Real Estate Investment Trust Travelers Insurance Co.
c/o Franklin Property Company RE: 501998
8401 Connecticut Avenue P.O. Box 64205
Chevy Chase, Maryland 20815 Baltimore, Maryland 21264-4205
Attn: Philip D. Caraci,
Senior Vice President and Secretary
If Tenant:
Real Estate Department (w/copy to General Counsel)
e.spire Communications, Inc.
133 National Business Parkway, Suite 200
Annapolis Junction, MD 20701
. Remedies Cumulative; No Waiver. All rights and remedies given herein and/or by
law or in equity to either party are separate, distinct and cumulative, and no
one of them, whether exercised or not, shall be deemed to be in exclusion of any
of the others. No failure to exercise any power given hereunder, or to insist
upon strict compliance with obligations hereunder, and no custom or practice of
the parties at variance with the terms hereof shall constitute a waiver of the
right to demand exact compliance with the terms hereof. Unless and to the extent
otherwise expressly provided to the contrary in this Lease, time shall be of the
essence with respect to all of the obligations of the parties under this Lease.
. Modification. This writing is intended by the parties as the final expression
of their agreement and as a complete and exclusive statement of the terms
thereof, all negotiations, discussions and representations between the parties
having been incorporated herein. No course of prior dealings between the parties
or their affiliates shall be relevant or admissible to supplement, explain or
vary any of the terms of this Lease. Acceptance of, or acquiescence in, a course
of performance rendered under this or any prior agreement between the parties or
their affiliates shall not be relevant or admissible to determine the meaning of
any of the terms of this Lease. No representations, understandings or agreements
have been made or relied upon in the making of this Lease other than those
specifically set forth heroin. This lease can only be modified by a writing
signed by all of the parties hereto or their duly authorized agents.
. Waiver of Jury Trial. Landlord and Tenant each hereby waive all right to trial
by jury in any claim, action, proceeding or counterclaim by either party against
the other on my matters arising out of or in any way connected with this Lease,
the relationship of Landlord and Tenant and/or Tenant's use of occupancy of the
Premises.
. Headings. The captions and headings contained herein are for convenience and
reference only.
. Applicable Law. This Lease shall be construed under the laws of the
Commonwealth of Virginia.
. Rent Tax. Tenant shall pay any rental, sales, use, business and/or similar
taxes levied or imposed by the Commonwealth of Virginia, the County of Fairfax,
or other governmental authority, whether imposed or Tenant or Landlord, such
payments to be in addition to all other payments required under the terms of
this Lease.
. Gender; Assigns and Successors. Feminine or neuter pronouns shall be
substituted for those of the masculine form, and the plural may be substituted
for the singular number, in any place or places herein in which the context may
require such substitution or substitutions. The term "Landlord" as used in this
Lease, means only the owner for the time being, of the Landlord's interest in
this Lease. This Lease shall be binding upon and inure to the benefit or the
parties hereto and their respective successors and permitted assigns, except
that only the original Landlord named herein shall be liable for obligations
accruing before the beginning of the term hereof, and thereafter the original
Landlord named herein and each successive owner of the Premises shall be liable
only for obligations accruing during the period of its ownership. Whenever
Landlord conveys its interest in the Building, Landlord shall be automatically
released from the further performance of covenants on the part of Landlord
herein contained, and from any and all further liability, obligations, costs and
expenses, demands, causes of action, claims or judgments arising from or growing
out of, or connected with this Lease after the effective date of said release.
The effective date of said release shall be the date the assignee of Landlord
executes an assumption of such an assignment whereby the assignee expressly
agrees to assume all of Landlord's obligations, duties, responsibilities and
liabilities with respect to this lease.
. Severability. If any term, covenant or condition of this Lease or the
application thereof to any person or circumstance shall to any extent be held
invalid or unenforceable, the remainder of this Lease or the application of such
term, covenant or condition to persons or circumstances other than those as to
which it is held invalid or unenforceable, shall not be affected thereby and
each term, covenant and condition of this Lease shall be valid and enforced to
the fullest extent permitted by law.
. Interpretation. Whenever in this Lease any printed portion, or any part
thereof, has been stricken out, whether or not any replacement provision has
been added, this Lease shall be read and construed as if the material so
stricken out were never included herein, and no implication shall be drawn from
the text of the material so stricken out which would be inconsistent in any way
with the construction or interpretation which would be appropriate if such
material had never been contained herein. The Exhibits referred to in this Lease
and attached hereto are a substantive part of this Lease and are incorporated
herein by reference. In any legal proceeding respecting this Lease, this Lease
will be construed with equal weight for the rights of both parties, the terms
hereof having been determined by free and fair negotiation, with due
consideration for the rights and requirements of both parties. Both parties
agree that they have had equal input into the wording and phraseology of the
provisions of this Lease, and that, therefore, no provision will be construed as
drafted by one party or the other, without respect to whose draft of this Lease
the wording or phraseology arises. If any of the typewritten portions of this
Lease conflict with any of the printed provisions of this Lease, the provisions
set forth in the typewritten portions shall control; provided, however, that to
the extent the printed portions of this Lease may be read in a manner which will
not conflict with the provisions of the typewritten portions, then such
interpretation shall be deemed to be the correct interpretation of the
provisions of this Lease.
. Landlord's Liability. Any agreement, obligation or liability made, entered
into or incurred by or on behalf of B. F. Saul Real Estate Investment Trust
binds only its trust property and no shareholder, trustee, officer, agent or
employee of the Trust assumes or shall be held to any liability therefor. Tenant
agrees that Landlord shall have no personal liability with respect to any of the
provisions of this Lease and Tenant shall look solely to the estate and property
of Landlord in the land and buildings comprising the Building including, without
limitation, the collection of any judgment or the enforcement of any other
judicial process requiring the payment or expenditure of money by Landlord,
subject, however, to he prior rights of any holder of any mortgage or deed of
trust covering all or part of the Building, and no other assets of Landlord
shall be subject to levy, execution or other judicial process for the
satisfaction of Tenant's claim and, in the event Tenant obtains a judgement
against Landlord, the judgment docket shall be so noted. This Section shall
inure to the benefit of Landlord's successors and assigns and their respective
principals.
. Survival of Obligations. Tenant's liabilities existing as of the expiration
or earlier termination of the Lease Term shall survive such expiration or
earlier termination.
. Entity Tenants. If Tenan is a corporation; partnership or limited liability
company, the persons executing this Lease on behalf of Tenant hereby covenant
and warrant that: Tenant is duly constituted as such entity and is qualified to
do business in the state where the Premises are located; all Tenant's franchise
and corporate taxes have been paid to date; all future forms, reports, fees and
other documents necessary for Tenant to comply with applicable laws will be
filed by Tenant when due; and such persons are duly authorized by the board of
directors, partnership agreement or other applicable authority of such entity to
execute and deliver this Lease and certificate of good standing, dated within
sixty (60) days prior to the Lease Date, issued by the jurisdiction in which
Tenant is organized, and one or more of the following confirming the
authorization and due execution of this Lease by Tenant: (1) a certificate of
Tenant's Secretary if Tenant is a corporation; or (ii) a consent of the general
partners if Tenant is a partnership or (iii) a certified copy of the Articles of
Organization, operating agreement or other evidence satisfactory to Landlord
evidencing the authority of the members of a limited liability company executing
this Lease on behalf' thereof. Notwithstanding the foregoing, Landlord agrees to
accept the written opinion of Tenant's in-house counsel with respect to the
matters addressed in this Article.
. The Building is a "No Smoking" building. No smoking is permitted in any tenant
premises or any public or common area within the Building. Landlord reserves the
right to designate areas adjacent to the Building where smoking is permitted or
prohibited. Persons smoking in areas adjacent to the Building shall deposit all
ashes and other trash in appropriate ashtrays or trash receptacles, and shall
not leave any litter in such areas.
. No Option, The submission of this Lease for examination does not constitute a
reservation of or option for the Premises, and this Lease becomes effective only
upon execution and delivery thereof by Landlord. Neither party shall have any
legal obligation to the other in the event that the lease contemplated herein is
not consummated for any reason. Discussions between the parties respecting the
proposed lease described herein, shall not serve as a basis for a claim against
either party or any officer, director or agent or either party.
. Special Stipulations. The terms, covenants and conditions set forth in any
Articles of this Lease numbered higher than this Article 52 ("Special
Stipulations") are intended to supplement and, in certain events, modify or
vary, the other provisions set forth in the foregoing provisions of this Lease.
If any of the Special Stipulations conflict with any of the foregoing provisions
of this Lease, the provisions set forth in the Special Stipulations shall
control; provided, however, that to the extent the preceding portions of this
Lease may be read in a manner which will not conflict with the provision of the
Special Stipulations, then such interpretation shall be deemed to be the correct
interpretation of the provisions of this Lease and the Special Stipulations.
. Option Term.
() Tenant shall have the option to renew the term of this Lease for one
(1) additional period(s) of five (5) years (the "Option Term") following the
expiration of the initial lease term provided that this lease is in full force
and effect, the Tenant shall be in possession and occupying the Premises
(subject to paragraph 20.h), and Tenant shall not be in default beyond the
expiration or any applicable notice and cure period in the performance or
observance of any of the terms, conditions, provisions and/or covenants of the
Lease. All such rights of a renewal shall be exercised by delivery to Landlord
of written notice of Tenant's intention to renew the term at least nine (9)
months but not more than twelve (12) months prior to the expiration of the then
applicable term of the lease. The Option Term shall be of the same terms,
covenants and conditions its the original lease except Base Rent for the Option
Term shall be the then Prevailing Market Rent of comparable space within the
McLean, Virginia, market area.
() Within fifteen (15) business days after receipt (if Tenant's notice
exercising its option to extend the term of this Lease, Landlord shall notify
Tenant of Landlord's estimate of Prevailing Market Rent. If Tenant disagrees
with Landlord's estimate of Prevailing Market Rent, Tenant may rescind such
renewal notice thereby terminating its right of renewal provided by this lease,
or Tenant shall notify Landlord that it has elected to submit the determination
of Prevailing Market Rent to Arbitration, in which event the provisions of
subparagraph (b)(ii)(a) of this Article 55 shall govern the selection of
arbitrators and the establishment of the Prevailing Market Rent payable for the
year of the then applicable Option Term; provided, however, that if Tenant does
not elect to either rescind its renewal notice or to submit the determination of
Prevailing Market Rent to Arbitration during such fifteen (15) day period, then
the Landlord's estimate of Prevailing Market Rent shall be deemed to be agreed
to by Tenant, and shall be the Base Rent payable by Tenant to Landlord during
the first year of the then applicable Option Term.
()(i) Definition: As used herein, the term 'Prevailing Market Rent'
means the most probable rent (as determined pursuant to the appraisal procedure
hereinafter set forth) at which the Premises would be leased in a comparable and
open market, under all conditions requisite to a fair lease, the Landlord and
Tenant each acting prudently, knowledgeable, and assuming the rent is not
affected by undue stimulus. Implicit in this definition is the consummation of
the lease of such space beginning on the commencement date of the lease of the
Premises under conditions whereby:
A. Landlord and Tenant are typically motivated (i.e., neither party is
compelled to enter into a lease and both parties are willing to enter into a
lease).
B. Both parties are well informed or well advised, and each acting in
what it considers its own best interest.
C. A reasonable time is allowed for exposure in the open market.
D. The Prevailing Market Rent shall be computed as an amount equal to
the then prevailing market rental rate of the Premises, as if vacant with
Building standard improvements, and taking into account the annual adjustments
of Base Rent, Tenant's obligation to pay Tenant's Pro-Rata Share of Annual
Operating Costs and all existing market factors.
E. All of the terms, covenants and conditions of the Lease (except
terms respecting the amount of Base Rent) remain in effect throughout the term.
(ii) In the event of a dispute as to determination of Prevailing Market
Rent referred to in this paragraph, such dispute shall be resolved in accordance
with the following:
(a) If Landlord and Tenant fail to agree upon the Prevailing Market
Rent as referred to in this paragraph, within the time periods provided for
herein, then Landlord and Tenant each shall give notice to the other setting
both the name and address of a licensed real estate broker or appraiser
(hereinafter `appraiser') who shall be a M.A.I. Real Estate professional with
substantial experience in commercial real estate appraisal designated by it to
make the determinations hereafter required. Each appraiser shall be instructed
to calculate the Prevailing Market Rent as provided in each of the foregoing
sections which is the subject of the dispute and is in accordance with the
criteria referenced therein. If either party shall fail to give notice of such
designations within ten (10) days after failing to agree between themselves,
then the appraisal made by the appraiser so designated shall be the Appraisal
Prevailing Market Rent. If two appraisers have been designated, such two
appraisers shall consult with each other and, within thirty (30) days
thereafter, issue their determinations of Appraisal Prevailing Market Rent in
writing, and give notice thereof to each other and to Landlord and Tenant. If
such two appraisers shall concur as to the determination of the Prevailing
Market Rent and submit their decision in writing to Landlord and Tenant, such
concurrence shall be final and binding upon Landlord and Tenant. If the two
determinations of Prevailing Market Rent shall be within five percent (5%)
(measured from the higher appraisal) of each other, the Prevailing Market Rent
shall be deemed to be the average of the two appraisers' determinations. If'
such two appraisers' determinations shall not so concur or coincide, then such
two appraisers shall immediately (1) designate it third appraiser, (ii) prepare
detailed written appraisals, and (iii) submit copies of such appraisal to
Landlord, Tenant and such third arbitrator. If the two appraisers shall fail to
agree upon the designation of such third appraiser within eight (8) days of the
date on which the last determination was rendered, then either party may apply
to the American Arbitration Association or any successor thereto having
jurisdiction, for the designation of such appraiser. All arbitrators shall be
licensed real estate appraisers or brokers who shall have had at least ten (10)
years continuous experience in the business of appraising or managing real
estate or acting as real estate agents or brokers in the McLean, Virginia area.
The third appraiser shall conduct such hearings and investigations as he may
deem appropriate and shall, within twenty (20) (lays after the date of
designation of the third appraiser, choose the determination of the two
appraisers originally selected by the parties which is the nearest to the
determination such third appraiser would have made acting alone anti applying
the standards set forth therefor in this Lease, and that choice by the third
appraiser shall be binding upon Landlord and Tenant. Each party shall pay its
own counsel fees and expenses, if any, in connection with any arbitration under
this Article, including the expenses and fees of any appraiser selected by it in
accordance with the provisions of this paragraph, and the parties shall share
equally all other expenses and fees of any such arbitration, including the
expenses of the third appraiser. The determination rendered in accordance with
the provisions of this paragraph shall be final and binding in fixing the
Prevailing Market Rent.
However, in no event shall the Base Rent for the first Lease Year of
the Option Term be less than the then Base Rent for the last Lease Year of the
initial Lease Term as escalated by three percent (3%).
. Satellite Dish. Tenant may install one (1) satellite dish antenna of three (3)
feet or less in diameter and related wiring and facilities (the "Satellite
Dish") on the roof of the Property in an area approved by Landlord, upon the
following terms and conditions:
() The Satellite Dish shall be installed at the sole cost and expense
of Tenant. The exact location of the Satellite Dish and all construction and
improvements related thereto are subject to Landlord's approval.
() Tenant agrees to paint the Satellite Dish a color approved by
Landlord and to screen the Satellite Dish so that it is not visible from the
common areas of the Building or adjoining public streets.
() Tenant shall repair promptly, at its own expense, any damage to the
Property, the Building or the roof caused by the use, maintenance, installation,
or removal of the Satellite Dish or by the negligence of Tenant or Tenant's
employees, agents, contractors or subcontractors. The Satellite Dish shall be
removed from the roof of the Property, and the roof and adjacent areas shall be
surrendered to Landlord at the expiration or sooner termination of the term
hereof, in as at least as good condition as existed on the Lease Date, excepting
only depreciation caused by ordinary wear and tear. The Satellite Dish shall be
used solely in connection with Tenant's business operation in the Premises, and
shall not be used by any other party.
() Landlord reserves the right to relocate the Satellite Dish, at
Landlord's expense, at any time during the term of this Lease, to another
location will not unreasonably interfere with satisfactory operation of the
Satellite Dish.
() Landlord assumes no liability or responsibility for interference
with the Satellite Dish caused by the construction of additional buildings on
the Property. Tenant agrees to assume all costs for relocation of the Satellite
Dish required if such relocation is as a result of the construction of
additional buildings on the Property.
() The Satellite Dish and areas of the roof used by Tenant in
connection therewith shall be deemed to be a part of the Premises for purposes
of Articles 8, 9, 10, 13, 18, and 19 of this Lease and Tenant shall include the
Satellite Dish within the coverage of all insurance policies required to be
maintained by Tenant under this Lease.
() Tenant shall pay to Landlord, as Additional Rent, and subject to the
Rent Adjustment set forth in Article 55 of this Lease, an amount equal to Three
Thousand and 00/100 Dollars ($3,000.00) per annum, payable in equal monthly
installments of Two Hundred Fifty and 00/100 Dollars ($250.00) each.
. Year 2000. Landlord believes that the computer hardware and software for the
portions of the Building and its systems which are operated or maintained by
Landlord will operate after January 1, 2000. The foregoing information is based
upon a republication, as defined in the Year 2000 Information and Readiness
Disclosure Act, Public Law 105-271 (the "Year 2000 Act"), of information
received from other parties, such as manufacturers, suppliers or service
vendors, which may or may not be intended to be Year 2000 Statements (as defined
in the Year 2000 Act) by such parties. Landlord expressly disclaims any
liability for the failure of services provided by any utility company or other
private, quasi-governmental or governmental entities in providing any services
to the Building.
. Telecommunications Access. If any tenant of the Building requests in writing
that Landlord permit e.spire Communications, Inc. or its permitted
successors/assigns, to provide such tenant telecommunications access services
through optic fiber wiring (hereinafter referenced to as "Fiber Access") then,
Landlord shall not unreasonably withhold condition or delay its approval for
Tenant to install, operate, maintain, repair and replace fiber optic cable and
associated equipment (the "Facilities") within the Building (also referred to as
the "Licensed Premises") to provide its public utility telecommunications
services on a non-exclusive basis to or for the benefit of tenants of the
Building. In connection herewith:
(i) Landlord shall provide Tenant reasonable access to vertical and
horizontal shafts to enable Tenant to provide its telecommunications services to
tenants of the Building.
(ii) Following notice to and approval of all plans and specifications
by Landlord, Tenant shall have right of access to the Building and the right to
construct, where necessary and at its expense, building entrance and conduct
facilities associated with providing its telecommunications services in the
Building.
(iii) Nothing contained herein shall be construed as granting to tenant
any property or ownership rights in the Building or to create a partnership or
joint venture between Landlord or Tenant.
(iv) Tenant shall defend, indemnify and save Landlord harmless from and
against all claims, liabilities, suits, fines, penalties, damages, losses, fees,
costs and expenses, including attorney fees, which may be imposed upon, incurred
by, or served against Landlord by reason of:
() any work or thing done by or on behalf of the Tenant, or
any of its agents, contractors, subcontractors, servants, employees or invitees,
in or about the Landlord's Building or any parts thereof;
() any use, occupation, condition, or operation by the Tenant,
or any of its agents, contractors, subcontractors, servants, employees, Tenants,
or invitees, in or about the Premises or the Building or any part thereof, or
any passageway or space adjacent thereto, or elsewhere in the Premises or the
Building;
() any act or omission on the part of the Tenant, or any of
its agents, contractors, subcontractors, servants, employees, Tenants,
or invitees;
() any occurrence, accident, injury (including death), or
damage, directly or indirectly caused by the Tenant or any of its agents,
contractors, subcontractors, servants, employees, Tenants, or invitees to any
person or property carried in, or about the Licensed Premises or any part
thereof, or in or about the Premises or the Building;
() any lien arising as a result of any of Tenant's actions
or omissions with respect to its activities on or with respect to the Licensed
Premises or the Facilities; and
() failure of Tenant to vacate the Licensed Premises or to
remove the Facilities as required
under this Lease.
The Facilities shall be deemed to be a part of the Premises for all purposes of
the Lease including, without limitation, Articles 7, 8, 9, 13, 18 and 19.
All local, state or federal permits necessary for the use of the
Facilities shall be obtained by the Tenant at Tenant's sole cost and expense and
prior to the use herein contemplated. Tenant shall have its public liability and
other insurance policies endorsed to include the Facilities as a part of the
Premises.
IN WITNESS WHEREOF, the parties hereto have executed this Lease under
seal on the day and year first above written.
WITNESS/ATTEST: TENANT: e.spire Communications, Inc.
___________________________ BY:_________________________________
PRINTED NAME:______________
TITLE:_____________________
TAX IDENTIFICATION
OR SOCIAL SECURITY NUMBER__
ATTEST: LANDLORD:
B. F. SAUL ESTATE INVESTMENT TRUST
___________________________ BY:_________________________________
Kim Brandon, Assistant Secretary
<PAGE>
EXHIBIT B
WORK AGREEMENT
INTENTIONALLY DELETED
<PAGE>
EXHIBIT C
RULES AND REGULATIONS
. No advertisement, or other notice, shall be inscribed, painted or
affixed on any part of the outside or inside of the Building, except upon the
doors, and of such order, size and style, and at such places as shall be
designated by Landlord in writing. Initial Building Standard Suite entry door
signs and directory listings will be supplied for tenants by Landlord at
Tenant's cost.
. The sidewalks, entry passages, corridors, halls, elevators and
stairways shall not be obstructed by tenants, or used by them for any purpose
other than for ingress and egress. The floors, and skylights and windows that
reflect or admit light into any place in said Building, shall not be covered or
obstructed by tenant. The water closets and other water apparatus, shall not be
used for any other purpose than those for which they were constructed and no
sweepings, rubbish, or other obstructing substances shall be thrown therein. Any
damage resulting to them, or to associated systems, from misuse, shall be
repaired by tenants who, or whose employees, clerks, agents, invitees, or
servants shall cause it.
. No tenant shall do or permit to be done in said Premises, or bring or
keep anything therein, which shall in any way obstruct or interfere with the
rights of other tenants or in any way injure or annoy them. Tenants, their
clerks and servants, shall maintain order in the Building, shall not make or
permit any improper noise in the Building or interfere in any way with other
tenants or those having business with them. Nothing shall be thrown by tenants,
their clerks or servants, out of the windows or doors, or down the passages or
skylights of the Building. No rooms shall be occupied or used as sleeping or
lodging apartments at any time. No part of the Building shall be used or in any
way appropriated for gambling, immoral or other unlawful practices. No
intoxicating liquor or liquors shall be sold in said Building without Landlord's
prior written consent. At no time shall any firearms or other weapons of any
kind be kept at the Premises.
. Tenant shall not employ any person other than the janitors of
Landlord (who will be provided with passkeys into the offices) for the purpose
of cleaning or taking charge of said Premises. It is understood and agreed that
the Landlord shall not be responsible to any tenant for any loss of property
from rented premises, however occurring, or from any damage done to the
furniture or other effects of any tenant by the janitor or any of its employees.
. No animals, birds, bicycles or other vehicles shall be allowed in the
office, halls, corridors, or elsewhere in the Building.
. All tenants and occupants shall observe strict care not to leave
their windows or doors open when it rains or snows, or while air conditioning or
heating systems are in operation, and, for any fault or carelessness in any of
these respects, shall make good any injury sustained by other tenants, and to
Landlord for damage to paint, plastering or other parts of the Building,
resulting from such default or carelessness. No painting shall be done, nor
shall any alterations be made, to any part of the Building by putting up or
changing any partitions, doors or windows, nor shall there be any nailing,
except for decorating, boring or screwing into the woodwork or plastering, nor
shall any connection be made to the electric wires or electric fixtures, without
the prior consent in writing on each occasion of Landlord or its Agent. All
glass, locks, and trimmings in or upon the doors and windows of the Building
shall be kept whole and, when any part hereof shall be broken, the same shall be
immediately replaced or repaired and put in order under the direction and to the
satisfaction of Landlord, or its Agent, and shall be left whole and in good
repair. Tenant shall not injure, overload or deface the Building, the woodwork
or the walls of the premises, nor carry on upon the Premises any noisome,
noxious, noisy, or offensive business.
. Seventy-five (75) keys will be provided upon initial occupancy. The
charge for additional keys shall be Five Dollars ($5.00) each. No additional
locks or latches shall be put upon any door without prior written consent of
Landlord. Tenants, at termination of their lease of the premises, shall return
to Landlord all keys to doors in the Building.
. Landlord in all cases retains the power to prescribe the weight and
position of iron safes or other heavy articles. Tenants must make arrangements
with the manager of the Building when the elevator is required for the purpose
of the carrying of any kind of freight.
. The tenant shall not (without the Landlord's prior written consent)
install or operate any electric beating device, steam engine, boiler, machinery
or stove upon the Premises, or carry on any mechanical business therein, or do
any cooking therein, except microwave, or use or allow to be used upon the
Premises, oil, burning fluids,, camphene, gasoline or kerosene for heating,
warming or lighting. No article deemed extra hazardous on account of fire and no
explosives shall be brought into said Premises. No offensive gases or liquids
will be permitted.
. If tenants desire blinds or windows covering of any kind over the
windows, they must be of such shape, color and material as may be prescribed by
Landlord, and shall be erected with Landlord's prior consent and at the expense
of said tenants. No awnings shall be placed on said Building.
. Landlord reserves all vending rights. Request for such service will
be made to Landlord. Tenant has rights to its own vending machines for its
break room.
. Twenty-five (75) security cards will be required by Tenant and
famished initially by Landlord at no charge to enter the building during non
business hours. There will be a charge of $10.00 for each security card
replaced. These cards remain the property of and must be returned to the
Landlord upon expiration of the Lease, or upon Landlord's request. If any card
is not returned, or is lost or damaged by Tenant, then there will be an
additional charge of $10.00 per card at Landlord's discretion.
. Except for the storage of trash or rubbish in dumpsters or containers
provided by Landlord, Tenant shall not permit storage of any kind outside of the
Premises.
. Canvassing, soliciting and peddling in the Building is prohibited and
each tenant shall cooperate to prevent the same. Tenant shall be allowed to
offer its services to other tenants in the building provided such offering is
handled in a professional manner.
. The elevators in the Building are not to be used by the tenants or
their agents, for moving furniture into the Premises, incident to the initial
occupancy, or moving furniture or freight out, incident to vacating without the
prior written consent of Landlord and, except during the hours from 6:00 p.m. to
8:00 a.m., or on Saturdays after the hour of 1:00 p.m. unless approved in
advance in writing by the manager of the Building.
. The Landlord reserves the right to make such other rules and
regulations as in its judgment may, from time to time, be needed for the salary,
care and cleanliness of the Premises, and for the preservation of good order
therein.
. Violation of these rules, or any amendments hereof or additions
hereto, shall be sufficient cause for a default of this Lease at the option of
Landlord.
. The smoking and/or holding and/or carrying of any lit tobacco or
tobacco-like product shall be prohibited in, on or around all public areas in,
around or about the building except in designated smoking areas.
<PAGE>
EXHIBIT D
INTENTIONALLY DELETED
<PAGE>
EXHIBIT E
LIST OF TENANT'S SHAREHOLDERS, PARTNERS, OR MEMBERS
OF A LIMITED LIABILITY COMPANY AND PERCENTAGE OF OWNERSHIP
<PAGE>
EXHIBIT F
COMMENCEMENT AND ESTOPPEL
THIS COMMENCEMENT AND ESTOPPEL AGREEMENT is made and entered into
this __ day of _____, 19__, by and
between ___________ ("Tenant") and B. F. SAUL REAL ESTATE INVESTMENT TRUST
("Landlord").
WHEREAS, Landlord and Tenant have heretofore entered into that certain
Lease Agreement dated ________ (the "Lease"), for certain space
at___________________________.
WHEREAS, paragraph 3 of the Lease provides for the execution of a
commencement agreement specifying the commencement date of the term of the
Lease;
NOW, THEREFORE, in consideration of the premises, and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, each party hereby warrants and represents to the other as follows:
1. That Tenant is in full and complete possession of the Dernised
Premises, such possession having been delivered by the
Landlord and having been accepted by the undersigned.
2. That the Landlord's improvements, if any, and the space
required to be furnished by the terms of the Lease have been
completed in all respects and are open for the use of the
Tenant, its customers, employees and invitees.
3. That all duties of an inducement nature required of the
Landlord in said Lease have been fulfilled.
4. That said Lease is in full force and effect; that there is no
existing default on the part of the Landlord in the terms
thereof, and that said Lease has not been amended, modified,
supplemented or superseded.
5. That no rents have been prepaid except as provided by said
Lease; that Tenant does not now have or hold any claim against
Landlord which might be set off or credited against future
accruing rent.
6. That Tenant has received no notice of a prior sale, transfer,
assignment, hypothecation or pledge of the said Lease or of
the rents secured therein, except to Landlord.
7. That the Rent Commencement Date for the Lease is the ____ day
of _______, 19__ and the Lease shall expire at midnight on the
______ day of ________, 19__.
8. Any agreement, obligation, or liability made, entered into or
incurred by or on behalf of B. F. SAUL REAL ESTATE INVESTMENT
TRUST binds only its Trust property, and no shareholder,
trustee, officer, or agent of the Trust assumes or shall be
held to any liability therefor.
IN WITNESS WHEREOF, the parties hereto do hereby execute this Agreement
under seal on the day and year first above written.
ATTEST: TENANT:
---------------------------
______________________ By:______________________(SEAL)
Secretary Printed Name:______________
Its:_______________________
ATTEST: LANDLORD:
B. F. SAUL REAL ESTATE INVESTMENT
TRUST
______________________ By:____________________________
Printed Name:_____________
Its:____________________________
<PAGE>
EXHIBIT A
DEMISED PREMISES
EXHIBIT 10-2
OFFICE LEASE
THIS LEASE, made this 5th day of April ,1999, by and between
Dulles North Office Park II Corporation (hereinafter "Landlord"); and e.spire
Communications, Inc. a Delaware Corporation (hereinafter "Tenant").
WITNESSETH:
. Premises. For and in consideration of the rent hereinafter reserved and the
mutual covenants hereinafter contained, Landlord does hereby lease and demise
unto Tenant, and Tenant does hereby hire, lease and accept, from Landlord,
approximately 25,460 gross rentable square feet as measured in accordance with
BOMA (Building Owner and Management Association) standards, of space (the "Gross
Area") located at 22685 Holiday Park Drive, Sterling, Virginia 20166, (the
"Building"), all upon the terms and conditions hereafter set forth. That portion
of the Gross Area which Tenant shall be entitled to occupy is hereinafter
referred to as the "Premises" or "Demised Premises", and is outlined in red on
the floor plan attached hereto as Exhibit A and by this reference made a part
hereof. It is specifically understood that for purposes of calculating any
payments or pro-rations hereunder, the number of gross rentable square feet set
forth above shall control.
. Term. The term of this Lease shall commence on the date hereof (the "Lease
Date") and shall end one hundred and twenty (120) months after the "Rent
Commencement Date", as hereinafter defined. The "Rent Commencement Date" shall
be the first to occur of (i) the date Tenant actually commences occupancy of the
Premises, or (ii) one hundred five (105) days after Landlord delivers the
Premises to Tenant with the work described in Exhibit C completed. In the event
the Rent Commencement Date is a date other than the first day of a calendar
month, the term of the Lease shall run for the number of months set forth above
from the first day of the calendar month following the Rent Commencement Date.
The parties agree that they shall execute an agreement specifying the Rent
Commencement Date and the date of termination of this Lease and such other
matters as Landlord may require (the "Commencement and Estoppel Agreement"
attached hereto as Exhibit D). Tenant agrees, to execute and deliver to Landlord
said agreement within fifteen (15) calendar days' after receipt of written
notice from Landlord.
. Rent.
() Commencing with the Rent Commencement Date, Tenant shall pay as
annual rent for the Premises the sum of Three Hundred Forty-three Thousand Seven
Hundred Ten and 00/100 Dollars ($343,710.00) per annum, payable in equal monthly
installments of Twenty-eight Thousand Six Hundred Forty-two and 50/100 Dollars
($28,642.50) each (the "Base Rent"). All such monthly installments of rent shall
be payable to Landlord at the address specified in Article 33 of this Lease, in
advance, without previous notice or demand therefor, and without deduction,
setoff or recoupment, with the first monthly installment to be due and payable
no later than the Rent Commencement Date and each subsequent monthly installment
to be due and payable on the first day of each and every month following the
Rent Commencement Date during the term hereof. If the Rent Commencement Date is
a date other than the first day of a month, rent for the period commencing with
and including the Rent Commencement Date until the first day of the following
month shall be pro-rated at the rate of one-thirtieth (l/30th) of the fixed
monthly rental per day.
() Tenant shall pay Base Rent in the amount of Three Hundred
Forty-three Thousand Seven Hundred Ten and 00/100 Dollars ($343,710.00) per
annum, payable in equal monthly installments of Twenty-eight Thousand Six
Hundred Forty-two and 50/100 Dollars ($28,642.50) each for the period commencing
on the Rent Commencement Date and ending on the last day of the first Lease
Year, inclusive;
() Tenant shall pay Base Rent in the amount of Three Hundred
Fifty-four Thousand Twenty-one and 36/100 Dollars ($354,021.36) per annum,
payable in equal monthly installments of Twenty-nine Thousand Five Hundred One
and 78/100 Dollars ($29,501.78) each for the period commencing on the first day
of the second Lease Year and ending on the last day of the second Lease Year,
inclusive;
() Tenant shall pay Base Rent in the amount of Three Hundred
Sixty-four Thousand Six Hundred Forty-one and 96/100 Dollars ($364,641.96) per
annum, payable in equal monthly installments of Thirty Thousand Three Hundred
Eighty-six and 83/100 Dollars ($30,386.83) each for the period commencing on the
first day of the third Lease Year and ending on the last day of the third Lease
Year, inclusive;
() Tenant shall pay Base Rent in the amount of Three Hundred
Seventy-five Thousand Five Hundred Eighty-one and 16/100 Dollars ($375,581.16)
per annum, payable in equal monthly installments of Thirty-one Thousand Two
Hundred Ninety-eight and 43/100 Dollars ($31,298.43) each for the period
commencing on the first day of the fourth Lease Year and ending on the last day
of the fourth Lease Year, inclusive;
() Tenant shall pay Base Rent in the amount of Three Hundred
Eighty-six Thousand Eight Hundred Forty-eight and 56/100 Dollars ($386,848.56)
per annum, payable in equal monthly installments of Thirty-two Thousand Two
Hundred Thirty-seven and 38/100 Dollars ($32,237.38) each for the period
commencing on the first day of the fifth Lease Year and ending on the last day
of the fifth Lease Year, inclusive;
() Tenant shall pay Base Rent in the amount of Four Hundred
Thirty-six Thousand Six Hundred Forty-four and 00/100 Dollars ($436,644.00) per
annum, payable in equal monthly installments of Thirty-six Thousand Three
Hundred Eighty-seven and 00/100 Dollars ($36,387.00) each for the period
commencing on the first day of the sixth Lease Year and ending on the last day
of the sixth Lease Year, inclusive;
() Tenant shall pay Base Rent in the amount of Four Hundred
Forty-Nine Thousand Seven Hundred Forty-three and 32/100 Dollars ($449,743.32)
per annum, payable in equal monthly installments of Thirty-seven Thousand Four
Hundred Seventy-eight and 61/100 Dollars ($37,478.61) each for the period
commencing on the first day of the seventh Lease Year and ending on the last day
of the seventh Lease Year, inclusive;
() Tenant shall pay Base Rent in the amount of Four Hundred
Sixty-three Thousand Two Hundred Thirty-five and 64/100 Dollars ($463,235.64)
per annum, payable in equal monthly installments of Thirty-eight Thousand Six
Hundred Two and 97/100 Dollars ($38,602.97) each for the period commencing on
the first day of the eighth Lease Year and ending on the last day of the eighth
Lease Year, inclusive;
() Tenant shall pay Base Rent in the amount of Four Hundred
Seventy-seven Thousand One Hundred Thirty-two and 72/100 Dollars ($477,132.72)
per annum, payable in equal monthly installments of Thirty-nine Thousand Seven
Hundred Sixty-one and 06/100 Dollars ($39,761.06) each for the period commencing
on the first day of the ninth Lease Year and ending on the last day of the ninth
Lease Year, inclusive;
() Tenant shall pay Base Rent in the amount of Four Hundred
Ninety-one Thousand Four Hundred Forty-six and 68/100 Dollars ($491,446.68) per
annum, payable in equal monthly installments of Forty Thousand Nine Hundred
Fifty-three and 89/100 Dollars ($40,953.89) each for the period commencing on
the first day of the tenth Lease Year and ending on the last day of the term of
this Lease.
() () Landlord hereby acknowledges receipt of Thirty-five Thousand
Sixty Hundred Sixty- five and 22/100 Dollars ($35,665.22) which shall constitute
prepayment of the first full month's Base Rent, Real Estate Taxes and Annual
Operating charge as set forth below.
() Landlord hereby acknowledges receipt of the letter of
Credit described in Article 53 to be held as security for the performance by
Tenant of Tenant's covenants and obligations under this Lease, it being expel
understood that the deposit shall not be considered an advance payment of rental
or a measure of Landlord's damage in case of default by Tenant. Upon the
occurrence of any event of default by Tenant or breach by Tenant of Tenant's
covenants under this Lease, Landlord may, from time to time, without prejudice
to any other remedy, use the security deposit to the extent necessary to make
good any arrears of rent and/or any damage, injury, expense or liability caused
to Landlord by the event of default or breach of covenant. In the event that
Tenant shall fully and faithfully comply with all the terms, conditions and
covenants of this Lease, any part of the security not used or retained by
Landlord shall be returned to Tenant after the expiration date of the term of
this Lease and after delivery of exclusive possession of the Premises to
Landlord; provided, however, that Landlord may retain all or a portion of the
security for a period of not more than one hundred eighty (180) days until
Landlord makes the final annual adjustments of Annual Operating Costs and Real
Estate Taxes and ascertains Tenant's share of such amounts which accrued prior
to the expiration of the term.
() For all purposes of this Lease, the term "Lease Year" shall be
defined to mean a period of twelve (12) full calendar months. The first Lease
Year shall commence on the Rent Commencement Date (or on the first day of the
first calendar month following the Rent Commencement Date if said date is other
than the first day of a calendar month), and each succeeding Lease Year shall
commence on the anniversary date of the beginning of the first Lease Year.
() The amounts set forth in this Lease for payment of Minimum Rent,
Annual Operating Costs and Real Estate Taxes (see Article 5) are predicated upon
the Premises being the size recited in Article 1. Promptly upon delivery of
possession of the Premises by Landlord to Tenant, Landlord will cause its
architect to measure and certify to Tenant the square footage of floor area of
the Premises, and if said measurement indicates that the Premises are larger or
smaller than the size recited in this Lease, the parties hereto shall promptly
execute a supplemental instrument adjusting, as applicable, the amounts payable
by Tenant for Minimum Rent, Annual Operating Costs and Real Estate Taxes to
conform to such measurement. If Tenant shall have made any payments to Landlord
prior to the determination of such exact measurement, a prompt adjustment shall
be made in said payments to reflect the accurate figures.
. Rent Escalation. (INTENTIONALLY DELETED)
. Annual Operating Costs.
() Tenant agrees to pay to Landlord, as additional rent,
its Pro-Rata Share (as hereinafter defined) of Annual Operating Costs
(as hereinafter deemed).
() Tenant shall pay to Landlord on the Rent Commencement Date and on
the first day of each calendar month thereafter, as its estimated payment of the
Annual Operating Costs, the sum of $7,022.72, calculated at the rate of $3.31
per square foot. If the Rent Commencement Date is a date other than the first
day of the month, Tenant's Pro-Rata share shall be pro-rated in the same manner
as Base Rent under Article 3 hereof Within one hundred eighty (180) days
following each September 30 during the term hereof, Landlord shall submit to
Tenant a statement (the "Annual Statement") in reasonable detail of the actual
Annual Operating Costs for the twelve month period ending September 30 of each
year ("Fiscal Year"). If such statement shows that Tenant's share of the actual
Annual Operating Costs exceeded Tenant's monthly payments, then Tenant shall
immediately pay the total amount of such deficiency to Landlord, or, if Tenant
has paid an amount in excess of its Pro-Rata Share, such overpaid amount shall
be applied to Tenant's next monthly payment or directly to Tenant if such occurs
after the expiration or earlier termination of the Lease. Thereafter, upon
receipt of such succeeding Annual Statement, Tenant's monthly payments during
the period covered by said Annual Statement shall be adjusted to the actual
Annual Operating Cost, and such adjustment shall be paid within thirty (30) days
of the date of said Statement. The amount of the actual Annual Statement shall
be used as the basis for calculating Tenant's monthly payments for the next
succeeding t verve (12) month period.
() All monthly payments as may be required hereunder shall be payable
in full on the first day of each of the calendar month. Failure of the Landlord
to provide any Annual Statement within the said one hundred eighty (180) day
period shall not constitute a waiver by Landlord or Tenant of its rights to
payments due pursuant to this Article, and the obligations hereunder shall
survive the expiration or other termination of this Lease.
() For any applicable Fiscal Year that begins prior to the Rent
Commencement Date or ends after the expiration date of this Lease, the amount
due for that Fiscal Year shall be apportioned on a per diem basis so that only
that portion attributable to the portion of such Fiscal Year that occurs during
the term of this Lease, shall be payable by Tenant.
() Tenant's share of Annual Operating Costs ("Tenant's Pro-Rata Share")
for each full or partial fiscal year selected by Landlord during the Term shall
be computed by Landlord by multiplying the amount of Annual Operating Costs by a
fraction obtained by dividing the total number of gross rentable square feet of
space contained in the Premises by the total gross rentable area contained
within the Building from time to time. Tenant's Pro-Rata Share is estimated to
be 32.2% of the Annual Operating Costs for the Building and the Property upon
which said Building is situated (collectively called the "Property") on the date
of this Lease.
() Annual Operating Costs as used herein shall mean all costs of
operation, maintenance and repair of the Property, (except structural repairs),
and its appurtenances, and shall include the following by way of illustration
but not limitation: Real Estate Taxes (as hereinafter defined), the cost of
labor, materials and services for the operation, maintenance and repair of the
Building and its appurtenances (including service roads and parking areas),
including but not limited to, water and sewer charges; heating, ventilating and
air conditioning maintenance and repairs; refuse and rubbish disposal; snow
removal; license, permits and inspection fees; maintenance and service contracts
customarily maintained for similar buildings; management fees; all landscaping
costs (including upgrades and replacements thereto); parking lot lighting;
watchman, guards, and any personnel engaged in the operation, maintenance or
repair of the Property and its appurtenances together with payroll taxes and
employee benefits applicable thereto; reserve for asphalt and roof repairs;
Landlord's administrative costs equal to fifteen percent (15%) of the Annual
Operating Costs (excluding Real Estate Taxes); and insurance. Expenses related
to a specific tenant's premises which are not a general benefit to the other
tenants of the Building and legal fees incurred in connection with other
tenant's leases or the enforcement thereof shall not be included in Annual
Operating Costs.
() The term "Real Estate Taxes" means all taxes, rates and assessments,
general and special, levied or imposed with respect to the land, buildings and
improvements comprising the Property, including all taxes, rates and
assessments, general and special, levied or imposed for schools, public
betterment, general or local improvement and operations and taxes imposed in
connection with any special taxing district. If the system of real estate
taxation shall be altered or varied and any new tax or levy shall be levied or
imposed on said land, buildings and improvements, then any such new tax or levy
shall be included within the term "Real Estate Taxes". Should any governmental
taxing authority acting under any regulation, levy, assess, or impose a tax,
excise and/or assessment however described (other than an income or franchise
tax) upon, against, on account of, or measured by, in whole or in part, the rent
expressly reserved hereunder, or upon the rent expressly reserved under any
other leases or leasehold interests in the Property, as a substitute (in whole
or in part) or in addition to any existing real estate taxes on land and
buildings and otherwise, such tax or excise on rents shall be included within
the term "Real Estate Taxes". Actual reasonable expenses (consisting of
reasonable attorneys' fees, consulting fees, expert witness fees and similar
costs) incurred by Landlord in obtaining or attempting to obtain a reduction of
any Real Estate Taxes shall be added to and included in the amount of any such
Real Estate Taxes. Real Estate Taxes which are being contested by Landlord shall
nevertheless be included for purposes of the computation of the liability of
Tenant under this Article, provided, however, that in the event that Tenant
shall have paid any amount of increased rent pursuant to this Article 5 and the
Landlord shall thereafter receive a refund of any portion of any Real Estate
Taxes on which such payment shall have been based, Landlord shall pay to Tenant
the Pro Rata portion of such refund. Landlord shall have no obligation to
contest, object to or litigate the levying or imposition of any Real Estate
Taxes and may settle, compromise, consent to, waive or otherwise determine in
its discretion to abandon any contest with respect to the amount of any Real
Estate Taxes without consent or approval of the Tenant; provided, however, that
Tenant's Pro-Rata share of expenses related to an appeal of Real Estate Taxes
which is abandoned by Landlord shall not exceed $20,000.00.
() Notwithstanding anything set forth in Article 5 to the contrary, if
the average occupancy level of the Building for any calendar is less than 100%,
the Operating Expenses for such calendar year shall be increased by the
additional Operating Expenses, as reasonably estimated by Landlord, that would
have been incurred by Landlord in providing the same services provided to Tenant
(and included in Operating Expenses) if the average occupancy level of the
Building for the calendar year had been 100%. For purposes of the preceding
sentence, the "average occupancy of the Building" for any calendar year shall be
the arithmetic average of the Building Rentable Area occupied by tenants on the
first day of each month during the calendar year.
() Tenant, upon not less than ten (10) days written notice to Landlord,
shall have reasonable access during normal business hours in Landlord's
headquarters office to inspect the books and records of Landlord relating to
Annual Operating Costs and/or to have such books and records audited or
reviewed, at Tenant's expense, for the purpose of verifying the Annual Operating
Costs statement. Tenant shall bear all costs relating to such inspection,
including, but not limited to, costs of photocopies. Any discrepancy in Tenant's
Proportionate Share shall be promptly corrected by a payment of any shortfall to
Landlord by Tenant within thirty (30) days after the applicable audit, or by a
credit against the next payment(s) of Annual Operating Costs due under this
Lease. Tenant shall keep the results of any audit of Annual Operating Costs
confidential.
. Additional Rent.
() Tenant shall (i) pay directly for all utility services directly
metered to the Tenant, including all charges associated with the metering
therefor; (ii) pay directly for all telephone charges; and (iii) be responsible
for the prompt and sanitary storage of Tenant's refuse and rubbish in the
Premises.
() Any amounts required to be paid by Tenant hereunder and any charges
or expenses incurred by Landlord on behalf of Tenant under the terms of this
Lease shall be considered additional rent payable in the same manner and upon
the same terms and conditions as the rent reserved hereunder. Any failure on the
part of Tenant to pay such additional rental when and as the same shall become
due shall entitle Landlord to the remedies available to it for non-payment of
rent. Tenant's failure to object to any statement, invoice or billing rendered
by the Landlord within a period of one hundred twenty (120) days after receipt
thereof shall constitute Tenant's acquiescence with respect thereto, and such
statement, invoice or billing shall thereafter be deemed to be correct and shall
be an account stated between Landlord and Tenant.
. Laws and Ordinances.
() Tenant will, at its own cost, promptly comply with and carry out all
orders, requirements or conditions now or hereafter imposed upon it by the
ordinances, laws and/or regulations of the municipality, county and/or state in
which the Premises are located, whether required of Landlord or otherwise, in
the conduct of Tenant's business, including, without limitation, all local,
state and federal laws and regulations respecting the storage, handling and use
of any hazardous waste, infectious waste or other hazardous materials, except
that Landlord shall comply with any orders affecting structural walls and
columns unless due to Tenant's particular business or use of the Premises.
Tenant will indemnify and save Landlord harmless from all penalties, claims, and
demands resulting from Tenant's failure or negligence in this respect.
() Landlord shall comply with all laws and regulations with regard to
the Common Area of the Building and structural portions of the Building which
Landlord is required to repair pursuant to the terms of this Lease. In addition,
Landlord shall cause the Common Facilities to conform to all applicable legal
and insurance requirements, including the Americans with Disabilities Act
("ADA"), and the Board of Insurance Underwriters. Landlord will indemnify and
save Tenant harmless from all penalties, claims and demands resulting from
Landlord's failure or negligence in this respect.
. Furniture; Fixtures; Electrical Equipment.
() Tenant shall not place a load upon the floor of the Premises
exceeding two hundred (200) pounds per square foot without Landlord's prior
written consent. Business machines, mechanical equipment and materials belonging
to Tenant which cause vibration, noise, cold, heat or fumes that may be
transmitted to the Building or to any other leased space therein to such a
degree as to be objectionable to Landlord or to any other tenant in the Building
shall be placed, maintained, isolated, stored and/or vented by Tenant at its
sole expense so as to absorb and prevent such vibration, noise, cold, heat or
fumes. Tenant shall not keep within or about the Premises any dangerous,
flammable, toxic or explosive material beyond standard office materials, except
in strict compliance with laws and in amounts actually necessary for conduct of
Tenant's business. Tenant shall indemnify Landlord and hold it harmless against
any and all damage, injury, or claims resulting from the moving of Tenant's
equipment, furnishings and/or materials into or out of the Premises or from the
storage or operation of the same. Any and all damage or injury to the Premises,
the Building, or the Property caused by such moving, storage or operation shall
be repaired by Tenant at Tenant's sole cost.
() Tenant shall not install any equipment whatsoever which will or may
necessitate any changes, replacements or additions to the water system, plumbing
system, heating system, air conditioning system or the electrical system of the
Premises without the prior written consent of Landlord, such consent not to be
unreasonably withheld, conditioned or delayed. Tenant shall, at its sole cost
and expense, pay all charges for electricity used by the Tenant during the term
of this Lease, including that used for interior lighting and the operation of
the heating and air conditioning system in the Premises.
. Alterations.
() Tenant shall make no alterations or changes, structural or
otherwise, except for non-structural alterations which are cosmetic in nature
(i.e., consisting of painting and carpeting) to any part of the Premises, either
exterior or interior, without Landlord's written consent (such consent not to be
unreasonably delayed, withheld in the case of Landlord's improvements made in
accordance with Article 26 below). In the event of any such approved changes,
Tenant shall have all work done at its own expense. Request for such consent
shall be accompanied by plans stating in detail precisely what is to be done.
Tenant shall comply with the building codes, regulations and laws now or
hereafter to be made or enforced in the municipality, county and/or state, which
pertain to such work. Any additions, improvements, alterations and/or
installations made by Tenant (except only office furniture, business and trade
fixtures or any equipment including but not limited to, Network Operations
Equipment (as defined in Paragraph 12) and related communication and equipment
and wiring) shall become and remain a part of the Building and be and remain
Landlord's property upon the termination of Tenant's occupancy of said Premises,
unless Landlord shall advise Tenant at the time of Landlord's consent to any
such addition or alteration, that such addition or alteration, etc. will be
required to be removed by Tenant upon the expiration or termination of this
Lease, Tenant shall not be required to remove any such alteration or addition.
Tenant shall save Landlord harmless from and against all expenses, liens, claims
or damages to either property or person which may or might arise by reason of
the making of any such additions, improvements, alterations and/or
installations. Landlord reserves the right to change, increase or reduce, from
time to time, the number, composition, dimensions or location of any parking
areas, signs, the Building name, service areas, walkways, roadways or other
common areas or make alterations or additions to the Building, in its sole
discretion provided, however, that if such changes (i) materially and adversely
affect Tenant's use of the Premises, or the parking or common areas, or (ii)
materially reduce the Building's level of common area finishes and services,
Landlord shall not make such changes without Tenant's prior approval, which
shall not be unreasonably withheld, conditioned or delayed. Landlord's approval
of Tenant's plans and specifications under this Article 9 or any other
provisions of this Lease is solely for the purpose of ascertaining whether
Tenant's proposed alterations will have an adverse impact on the structural
components or Common Facilities of the Building and to insure the aesthetic and
architectural harmony of the Tenant's proposed alterations with the remainder of
the Building. No approval of plans by Landlord shall be deemed to be a
representation or warranty by Landlord that such plans or the work provided for
therein will comply with applicable codes, laws or regulations or be in
conformance with any insurance or other requirements which affect the Premises
or the Building, and Tenant shall have the sole responsibility of complying with
all such requirements notwithstanding Landlord's approval of Tenant's plans.
() NOTICE IS HEREBY GIVEN THAT LANDLORD SHALL NOT BE LIABLE FOR ANY
LABOR OR MATERIALS FURNISHED OR TO BE FURNISHED TO TENANT UPON CREDIT, AND THAT
NO MECHANICS' OR OTHER LIEN FOR ANY SUCH LABOR OR MATERIALS SHALL ATTACH TO OR
AFFECT THE ESTATE OR INTEREST OF LANDLORD IN AND TO THE PREMISES OR THE
BUILDING. WHENEVER AND AS OFTEN AS ANY LIEN ARISING OUT OF OR IN CONNECTION WITH
ANY WORK PERFORMED, MATERIALS FURNISHED OR OBLIGATIONS INCURRED BY OR ON BEHALF
OF TENANT SHALL HAVE BEEN FILED AGAINST THE PREMISES OR THE BUILDING, OR IF ANY
CONDITIONAL BILL OF SALE SHALL HAVE BEEN FILED FOR OR AFFECTING ANY MATERIALS,
MACHINERY OR FIXTURES USED IN THE CONSTRUCTION, REPAIR OR OPERATION THEREOF, OR
ANNEXED THERETO BY TENANT, TENANT SHALL FORTHWITH TAKE SUCH ACTION BY BONDING,
DEPOSIT OR PAYMENT AS WILL REMOVE OR SATISFY THE LIEN OR CONDITIONAL BILL OF
SALE WITHIN THIRTY (30) DAYS OF LANDLORD'S WRITTEN REQUEST THEREFOR,
NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN SHALL LIMIT TENANT'S
RIGHT TO CONTEST SUCH LIEN.
. Damage.
() If the Premises are damaged by fire or other cause covered by
Landlord's policy of fire insurance with extended coverage or other property
damage insurance carried by Landlord, the damage shall be repaired by and at the
expense of Landlord and the rent until such repairs shall have been made shall
abate pro-rata according to the part of the Premises which is unusable by
Tenant. However, if such damage was caused by the negligence of Tenant, its
employees, agents, contractors, visitors or licensees, then all rentals shall be
payable by Tenant during such period. Due allowance shall be made for reasonable
delay which may arise by reason of adjustment of fire insurance by Landlord, and
for personnel delay on account of "labor troubles" or any other cause beyond
Landlord's control. If, however, the Premises are rendered wholly untenantable
by fire or other cause and Landlord shall decide not to rebuild, the same, or if
the entire Building be so damaged that Landlord shall decide to demolish it or
not to rebuild it, then or in any of such events, Landlord may, at its option,
cancel and terminate Lease by giving Tenant notice in writing of its intention
to cancel this Lease, whereupon the term of this Lease shall terminate upon the
thirtieth (30th) day after such notice is given, and Tenant shall vacate the
Premises and surrender the same to Landlord. In neither of the certain
contingencies in this paragraph mentioned shall there be any liability on the
part of Landlord to Tenant covering or in respect of any period during which the
occupation of said Premises by Tenant may not be possible because of the matters
hereinabove stated, nor shall Landlord be liable for any damage incurred by
Tenant other than Landlord's obligation to repair the Premises as contained
herein.
() Notwithstanding anything to the contrary contained in this Lease, if
the Premises are damaged or destroyed by fire, accident, the elements or other
casualty (a "Casualty") to the extent that it will not be possible to rebuild
the Premises within one hundred eighty (180) days after the date of the
Casualty, Landlord shall notify Tenant within thirty (30) days after such
Casualty of Landlord's good faith estimate of the time needed to undertake
reconstruction of the Premises. If (i) Tenant is not then in default under this
Lease beyond the expiration of any applicable notice and cure period, and (ii)
the damage was not caused by Tenant's negligence or willful misconduct, Tenant
shall have the right to terminate this Lease by giving to Landlord notice of
such termination within fifteen (15) days after Landlord provides notice of such
good faith estimate. In the event that Landlord or Tenant do not exercise a
right of termination as provided in this Lease, Landlord shall commence to
repair the damage caused by such Casualty and, thereafter, shall diligently and
continuously pursue completion of such repairs, within the estimated completion
date as set forth in Landlord's notice. If Landlord fails to substantially
complete the repairs within the estimated completion date, Tenant shall have the
right and option, as its sole and exclusive remedy upon no less than thirty (30)
days prior notice to Landlord to terminate this Lease; provided, however, that
any termination of this Lease by Tenant shall be null and void if Landlord
substantially completes repairs within thirty (30) days after receipt of
Tenant's notice of termination.
. Condemnation. If the Premises or any part thereof shall be taken by any
governmental or quasi-governmental authority pursuant to the power of eminent
domain, or by deed in lieu thereof, Tenant agrees to make no claim for
compensation in the proceedings, and hereby assigns to Landlord any rights which
Tenant may have to any portion of any award made as a result of such taking with
respect to the real property including, without limitation, the Building and the
Tenant's leasehold, and this Lease shall terminate as to the portion of the
Premises taken by the condemning authority and rental shall be adjusted to such
date, but Tenant shall be permitted to file a separate claim for any personal
property of Tenant which is taken. The foregoing notwithstanding, Tenant shall
be entitled to claim, prove and receive in the condemnation proceedings such
awards as may be allowed for relocation expenses and for fixtures and other
equipment installed by it which shall not, under the terms of this Lease, be or
become the property of Landlord at the termination hereof, but only if such
awards shall be made by the condemnation court in addition to and stated
separately from the award made by it for the land and the Building or part
thereof so taken. Tenant shall have the right to terminate this Lease if the
portion of the Property, Building or Premises taken materially interferes with
Tenant's use of the Premises. If the nature, location or extent of any proposed
condemnation affecting the Building is such that Landlord elects in good faith
to demolish the Building, then Landlord may terminate this Lease by giving at
least sixty (60) days' or such time as permitted by the condemning authority
written notice of termination to Tenant at any time after such condemnation and
this Lease shall terminate on the date specified in such notice.
. Use of Premises. The Premises shall be used and occupied by Tenant solely for
the following uses: (i) operation, installation, maintenance, repair and
replacement of the communications equipment of Tenant and its customers, (ii)
the location and operation of Network Operations Center Equipment (hereinafter
defined), (iii) general office use, (iv) receiving, storing, light assembly and
selling (other than retail) products, materials and merchandise make and/or
distributed by Tenant, and (v) those uses as permitted in Article 52
hereinbelow. "Network Operations Equipment" shall mean the following equipment
of Tenant (i) telecommunications switching equipment and transport nodes and
telecommunications equipment of Tenant's customers, (ii) AC and DC power
equipment, sealed batteries, and generators (iii) projection and computer
equipment to facilitate network management and monitoring, and (iv) computer and
data processing equipment. The term "Network Operations Center" shall mean an
area of the Premises used for the location and operation of the Network
Operations Center Equipment. The Premises shall not be used for any illegal
purpose or in violation of any valid regulation of any governmental body, or in
any manner to (i) create any nuisance or trespass; (ii) annoy or embarrass
Landlord or any other tenant of the Property; (iii) vitiate any insurance; or
(iv) alter the classification or increase the rate of insurance on the property.
. Repairs by Tenant. Tenant shall be responsible for repairing, maintaining and
cleaning the Premises and the fixtures therein, keeping same in good order and
condition consistent with comparable Buildings during the term of this Lease at
its sole cost and expense, and will, at the expiration or other termination of
the term hereof, surrender and deliver up the same and all keys, locks and other
fixtures connected therewith (except only office furniture, business equipment,
trade fixtures and Network Operations Equipment and related equipment, cable and
wiring, but Tenant shall repair any such damage caused by such removal) in safe,
clean, sanitary, and non-hazardous condition, and otherwise in good order and
condition, as the same were required to be in on the date Tenant occupied the
Premises for the conduct of Tenant's business, ordinary wear and tear excepted.
With respect to property damage only, Landlord will be liable for property
damage caused by the negligence of Landlord or its agents or employees, subject,
however, to the waiver of subrogation set forth in paragraph 17.e.
. Repairs by Landlord.
() Landlord shall have no duty to Tenant to make any repairs or
improvements to the interior of the Premises except Landlord shall be
responsible for structural repairs and any repairs necessary for safety and
tenantability, and then only if not brought about by any act or neglect of
Tenant, its agents, employees or invitees. Landlord shall not be liable for any
damage caused to the property of Tenant, its agents, employees or invitees, due
to the Property or the Building or any part or appurtenances thereof being
improperly constructed or being or becoming out of repair, or arising from the
leaking of water or sewer, or from electricity, or from any other cause
whatsoever, and Tenant agrees to look solely to its own insurance for
compensation for any such damage or loss. Tenant agrees to endeavor to report
immediately in writing to Landlord any defective condition in or about the
Premises known to Tenant. Landlord shall not be liable for failure to furnish or
for suspension or delay in furnishing such services due to breakdown,
maintenance, or repair work, strike, riot, civil commotion, governmental action
or any other cause beyond the reasonable control of Landlord, or for
interruptions of service for reasonable periods in connection with construction
work being performed in the Building; notwithstanding the foregoing, Landlord
shall use reasonable efforts not to affect Tenant's use of Building/Premises as
a result of work described above. Interruption of service(s) that continues
beyond three (3) consecutive days as a result of Landlord's negligence shall
entitle Tenant to an abatement of rent.
() If Landlord defaults in its obligations to maintain and repair the
Premises in accordance with the provisions of this Lease, and such failure of
Landlord will have a material adverse effect on Tenant's ability to operate its
business in the Premises, and any such failure continues for a period in excess
of thirty (30) days after Landlord receives Tenant's written notice of such
default, then Tenant may, at its option and at its risk, perform any such
maintenance or repairs; provided, however, that if any such default of Landlord
cannot with due diligence and commercially reasonable efforts be cured by
Landlord within the thirty (30) day period after receipt of Tenant's notice, the
period for cure by Landlord shall be extended if, within such thirty (30) day
period Landlord commences and thereafter diligently pursues the cure of any such
default.
() If Tenant elects to cure a default of Landlord, then the reasonable
costs incurred by Tenant in curing any default of Landlord in accordance with
paragraph (b) above shall be reimbursed to Tenant by Landlord within thirty days
after Landlord's receipt of (i) Tenant's invoice for such costs, and (ii) copies
of paid invoices for all such work or expenses incurred, and (iii) if
applicable, lien waivers from all contractors, subcontractors, material
suppliers or other parties having lien rights involved in the performance of
such work. Lien waivers shall not be required if Tenant provides proof that
contractors, subcontractors or other parties having lien rights have been paid
in full or, in the sole opinion of Landlord, the time period for perfecting such
liens has expired. Tenant shall defend, indemnify and save Landlord harmless
from and against any and all claims, actions, damages, liability and expense in
connection with loss of life, personal injury and/or damage to or interference
with property or the premises of other tenants arising from or out of any
exercise of any rights granted to Tenant under this Article 14.
() Pursuit of any of the foregoing remedies shall not preclude Tenant
from pursuing any other remedies herein or at law or in equity provided, nor
shall pursuit of any remedy by Tenant constitute a forfeiture or waiver of any
amount due to Tenant hereunder or of any damages accruing to Tenant by reason of
Landlord's violation of any of the covenants and provisions of this Lease.
() If Landlord defaults in its obligations to maintain and repair the
Building in accordance with the provisions of this Lease, and such failure of
Landlord will have a material adverse effect on Tenant's ability to operate its
business in the Premises, and any such failure continues for a period in excess
of thirty (30) days after Landlord receives Tenant's written notice of such
default, then Tenant may pursue any remedy available at law or in equity with
respect to such default of Landlord; provided, however, that if any such default
of Landlord cannot with due diligence and commercially reasonable efforts be
cured by Landlord within the thirty (30) day period after receipt of Tenant's
notice, the period for cure by Landlord shall be extended if, within such thirty
(30) day period Landlord commences and thereafter diligently pursues the cure of
any such default.
. Roof Rights. Except as otherwise provided in this Lease, Landlord
shall have the exclusive right to use all or any portion of the roof of the
Building for any purposes.
. Landlord's Remedies Upon Default. In the event Tenant shall default in the
payment, when due, of any installment of rent or other charges or money
obligation to be paid by Tenant hereunder (all of which monetary obligations of
Tenant shall bear interest at the highest rate allowable by law, not to exceed
eighteen percent (18%) per annum, from the date due until paid in full) within
five (5) business days after the date any such amount is due; provided, however,
that Tenant shall not be in default with respect to the first two (2) monetary
payments received after such five (5) day period in any Lease Year until five
(5) days after Tenant's receipt of written notice of such late payment; or if
Tenant shall default in performing any of the covenants, terms or provisions of
this Lease (other than the payment, when due, of any of Tenant's monetary
obligations hereunder) or any of the Rules and Regulations now or hereafter
established by Landlord to govern the operation of the building and fails to
cure such default within 30 calendar days after written notice thereof from
Landlord; provided, however, that, solely with respect to non-monetary defaults
which cannot with due diligence and best efforts be cured within such thirty
(30) day period if, within such thirty (30) day period Tenant commences and
thereafter diligently pursues the cure of any such non-monetary default, Tenant
shall be granted an additional reasonable period of time to effect a cure; or if
Tenant shall abandon the Premises and discontinue timely rental payments; or if
Tenant is adjudicated a bankrupt; or if a permanent receiver is appointed for
Tenant's property; or if, whether voluntarily or involuntarily, Tenant takes
advantage of any debtor relief proceedings under any present or future law,
whereby the rent or any part thereof, is or is proposed to be, reduced or
payment thereof deferred, or if Tenant makes an assignment for the benefit of
creditors or if Tenant's property or effects should be levied upon or attached
under process against Tenant, not satisfied or dissolved within 10 calendar days
after written notice from Landlord to Tenant to obtain satisfaction thereof;
then, and in any of said events, Landlord, at its option may pursue any one or
more of the following remedies without any notice or demand whatsoever:
. Landlord, at its option, may at once, or at any time thereafter
terminate this Lease by written notice to Tenant, whereupon this Lease shall end
concurrently with the receipt by Tenant of such notice. Upon such termination by
Landlord, Tenant will at once surrender possession of the Premises to Landlord
and remove all of Tenant's effects therefrom, and Landlord may forthwith
re-enter the Premises and repossess himself thereof, and remove all persons and
effects therefrom, using such force as may be necessary, without being guilty of
trespass, forcible entry, detainer or other tort.
. Landlord may, without terminating this Lease, enter upon and take
possession of the Premises and expel or remove Tenant and any other person who
may be occupying the Premises or any part thereof, without being liable for
prosecution or any claim for damages therefor, and, if Landlord so elects, make
such alterations and repairs as, in Landlord's judgment, may be necessary to
relet the Premises, and relet such space or any part thereof for such rent and
for such period of time and subject to such terms and conditions as Landlord may
deem advisable and receive the rent therefor. Upon each such reletting, all rent
received by Landlord from such reletting shall be applied first to the payment
of any indebtedness other than rent due hereunder from Tenant to Landlord,
including interest thereon; second, to the payment of any loss or expense of
such reletting, including brokerage fees, reasonable attorneys' fees,
advertising and promotion expenses and the cost of such alterations and repairs;
third, to the payment of rent due and unpaid hereunder, together with interest
thereon as herein provided; and the residue, if any, shall be held by Landlord
and applied in payment of future rent as the same may become due and payable
hereunder. Tenant agrees to pay to Landlord, on demand, any deficiency that may
arise by reason of such reletting. Notwithstanding any such reletting without
termination, Landlord may at any time thereafter elect to terminate this Lease
for such prior default.
. In the event Landlord terminates this Lease in accordance with the
provisions of this Article 16, Landlord may, in addition to any other remedy it
may have, recover from Tenant all damages and expenses Landlord may suffer or
incur by reason of Tenant's default hereunder, including, without limitation,
the cost of recovering the Premises, reasonable attorneys' fees and the worth at
the time of such termination of the excess, if any, of the amount of rent and
charges equivalent to the rent reserved in this Lease for the remainder of the
stated term over the then reasonable rental value of the Premises for the
remainder of the stated term based upon a reduction to present value calculation
at the rate of ten percent (10%), all of which sums shall become immediately due
and payable by Tenant to Landlord upon demand of Landlord.
. Anything in this Lease to the contrary notwithstanding, in order to
cover the extra expense involved in handling delinquent payments, Tenant shall
pay a "late charge" of Two Hundred Fifty and No/100 Dollars ($250.00) when any
installment of rent (basic or otherwise, as may be considered additional rental
under this Lease) is paid more than seven (7) business days after the due date
thereof. It is hereby understood that this charge is for extra expenses incurred
by the Landlord in processing the delinquency and shall not be considered
interest.
. Pursuit of any of the foregoing remedies shall not preclude Landlord
from pursuing any other remedies herein or at law or in equity provided, nor
shall pursuit of any remedy by Landlord constitute a forfeiture or waiver of any
rent due to Landlord hereunder or of any damages accruing to Landlord by reason
of Tenants violation of any of the covenants and provisions of this Lease.
. Insurance.
. Tenant agrees that it will indemnify and save Landlord harmless from
any and all liabilities, damages, causes of action, suits, claims, judgments,
costs and expenses of any kind (including reasonable attorneys' fees) (i)
relating to or arising from or in connection with the possession, use,
occupation, management, repair, maintenance or control of the Premises or any
portion thereof, or (ii) arising from or in connection with any act or omission
of Tenant or Tenant's agents, employees or invitees, or (iii) resulting from any
injury to person or property or loss of life sustained in or about the Premises.
To assure such indemnity, Tenant shall carry and keep in full force and effect
at all times during the term of this Lease for the protection of Landlord and
Tenant herein, commercial general liability insurance with limits of at least
Two Million Dollars ($2,000,000.00) combined single limit for each occurrence,
with an approved insurance company, and Tenant shall deliver to Landlord a copy
of said policy or a certificate showing the same to be in full force and effect
prior to the Rent Commencement Date and at least annually thereafter.
. Throughout the Lease Term, Tenant shall insure, for their full
insurable value, the contents of the Premises, including furnishings, fixtures
and equipment used or installed in the Premises and Network Operations Center
(as defined in Article 55) by or on behalf of Tenant, including the Network
Operations Equipment defined in Article 12 and the other personal property of
Tenant in the Premises, against loss due to fire and other casualties included
in broad form property insurance policies, with an agreed amount endorsement and
replacement cost coverage. Throughout the Lease Term, Tenant shall also carry
business interruption insurance, provided however, that irrespective of such
business interruption, Tenant shall be entitled to rent abatement as described
in Articles 14 (a) and 56 herein.
. Said public liability and property damage insurance policies and any
other insurance policies carried by Tenant with respect to the Premises, shall
(i) be issued by good and solvent insurance companies qualified to do business
in the Commonwealth of Virginia and reasonably satisfactory to Landlord; (ii) be
written as primary policy coverage and not contributing with or in excess of any
coverage which Landlord may carry; (iii) provide for at least 30 days' prior
written notice to Landlord of any cancellation or other expiration of such
policy or any defaults thereunder, Tenant's liability insurance policy shall
name Landlord and Landlord's managing agent (and, if so requested, Landlord's
mortgagee) as additional insureds. Neither the issuance of any insurance policy
required hereunder, nor the minimum limits specified herein with respect to the
Tenant's insurance coverage, shall be deemed to limit or restrict in any way
Tenant's liability arising under or out of this Lease.
. Landlord shall maintain (i) public liability insurance on the common
areas of the Building in amounts not less than those set forth in paragraph (a)
of this Article 17 and (ii) Property Insurance for full replacement cost of the
Building in an amount sufficient to avoid co-insurance.
. () To the extent permitted by law, each of Landlord and Tenant hereby
releases the other, to the extent of all property insurance carried (or required
to be carried) by each party under the terms of this Lease, from liability for
any loss or damage caused by fire or other of the extended casualties insured
against; provided, however, that this release shall be in force and effect only
with respect to loss or damage occurring during such time as the releasing
party's insurance policy contain a clause or clauses which provides that: (i)
the insurance company waives subrogation or consents to a waiver of right of
recovery, and (ii) such waiver of subrogation or consent to a waiver of a right
of recovery does not adversely affect or prejudice said policy or the releasing
party's right of full recovery thereunder. Landlord's release of Tenant under
this subparagraph (e) is expressly conditioned upon Tenant's full cooperation
with Landlord's insurance carrier in inspections of the Premises and Tenant's
compliance with all requirements imposed by Landlord's insurance carrier with
respect to any activities in or use of the Premises which increases the risk of
loss to the Building, Property or the Premises.
() If a party advises the other party that a clause of the
type described in paragraph (1) above is (i) not obtainable, or (ii) only
obtainable at additional cost, then such party shall not be obligated to obtain
a waiver; provided, however, that with respect to an inability to obtain a
waiver due to the imposition of additional cost, the party shall promptly notify
the other party of the amount of such additional cost and, if the party desiring
that the other party obtain a waiver agrees in writing to pay the additional
cost of obtaining the waiver, then, upon receipt of such payment, that party
shall obtain a waiver of subrogation for the benefit of the other party, as
described in paragraph (1) above. To the extent that either party is permitted
to self insure as to its personal property located in the Premises, that party
will nevertheless be deemed to be insured for such personal property for the
purposes of this subparagraph (e).
. Property at Tenant's Risk. It is understood and agreed that all personal
property in the Premises, of whatever nature, whether owned by Tenant or any
other person, shall be and remain at Tenant's sole risk and Landlord shall not
assume any liability or be liable for any damage to or loss of such personal
property, arising from the bursting, overflowing, leaking of the roof or of
water or sewer pipes, or from heating or plumbing fixtures or from the handling
of electric wires or fixtures or from any other cause whatsoever, unless such
damage is caused by negligence of Landlord, its agents or employees (but
expressly subject to the waiver of subrogation set forth in paragraph 17.e.).
. Assignment; Subletting.
. Neither Tenant, nor any of its permitted successors or assigns, shall
transfer, assign, mortgage, encumber, or, by operation of law or otherwise,
pledge, hypothecate, or assign all or any of its interest in this Lease, or
sublet or permit the Premises, or any part thereof, to be used by others,
including, but not by way of limitation, concessionaires or licensees of Tenant,
without the prior written consent of Landlord, in each instance, which consent
Landlord shall not unreasonably withhold, condition or delay if Tenant fully
complies with the requirements of this Article 19 and other provisions of this
Lease. Any such subletting or assignment shall be referred to as a "Transfer"
(as further defined in this Article 19, subparagraph (b) below), and the person
to whom Tenant's interest is transferred shall be referred to as a "Transferee".
. For the purposes of this Article 19, the term "Transfer"
shall also include the following circumstances:
() if Tenant or any guarantor of this Lease is a corporation
(other than a corporation, the outstanding voting stock of which is listed on a
national securities exchange, as defined in the Securities Exchange Act of
1934), if the shares of such corporation are transferred by sale, assignment,
bequest, inheritance, operation of law or otherwise (including, without
limitation, a transfer to or by a receiver or trustee in federal or state
bankruptcy, insolvency or other proceeding), so as to result in or make possible
a change in the present control of such corporation;
() if Tenant or any guarantor of this Lease is a
partnership, any change in control or ownership of such partnership;
() any transfer by sale, assignment, bequest, inheritance,
operation of law or other disposition of all or substantially all of the assets
of Tenant or any guarantor which results in or makes possible a change in the
present control of the business of Tenant or any such guarantor;
() any other change in ownership of Tenant, any guarantor of
this Lease;
() any subletting or assignment which occurs by operation
of law, merger, consolidation, or reorganization; or
() any sale of all, or substantially all, of Tenant's assets
unless, in connection therewith, this Lease is assigned to the acquiring
party, as provided in paragraph 19(h) below.
In no event may Tenant assign this Lease, or sublease the Premises, if
Tenant is in default under this Lease.
. In the event that Tenant desires to effect a Transfer hereunder,
Tenant shall give Landlord written notice (the "Transfer Notice") thereof. To be
effective, the Transfer Notice shall be accompanied by Tenant's check, payable
to the order of Landlord, or Landlord's Agent, in an amount equal to the greater
of (i) $500.00 or (ii) one percent (1%) of the Minimum Rent to compensate
Landlord (not to exceed $1500.00) for the cost of reviewing the proposed
Transfer and specify the proposed Transferee, and the proposed terms of the
Transfer, and contain such information about the proposed Transferee, its
experience, its financial situation, its methods of operation, and provided its
business operation being consistent with those found in comparable buildings, as
a prudent businessman would require in making the Transfer decision. Tenant
specifically agrees to apprise Landlord of any adverse or negative information
in its possession concerning the proposed Transfer and the proposed Transferee.
The Transfer Notice shall also contain a certificate by Tenant (or an officer or
general partner of Tenant if Tenant is a corporation or partnership) of all
"Transfer Consideration" (as defined below) or payable in connection with the
proposed Transfer. Within forty-five (45) days of the receipt of the Transfer
Notice Landlord shall, by written notice to Tenant, elect: (i) to permit the
proposed Transfer; (ii) to terminate this Lease with respect to the portion of
the Premises proposed to be Transferred, but Tenant may, within five (5)
business days after receipt of Landlord s notice of termination, rescind its
request for consent to a Transfer, in which event this Lease will not terminate;
(iii) to sublet with the right to further sublet from Tenant for the balance of
the term of this Lease only so much of the Lease Premises as Tenant proposed to
Transfer, at the same rental as Tenant is obligated to pay to Landlord
hereunder; or (iv) to deny consent to the proposed Transfer, in which event
Tenant shall continue to occupy the Lease Premises and comply with all of the
terms and conditions hereof.
. If this Lease is Transferred under the definition of a Transfer (as
defined in Article 19, subparagraphs (a) and (b)), the Transferee shall assume
by written instrument all of Tenant's obligations under this Lease and such
Transferee, at least five (5) days prior to the effective date of the permitted
Transfer, shall deliver to Landlord the proposed sublease, assignment and
assumption agreement or other instrument evidencing the Transfer and the
Transferee's undertaking to perform Tenant's obligations under this Lease.
Except for the Transfer as permitted in this Article 19, subparagraph h, all of
such documents shall be subject to Landlord's prior written approval not to be
unreasonably withheld, conditioned or delayed. In the event of any Transfer,
including a permitted Transfer, Tenant shall continue to be liable hereunder,
and shall not be released from performance hereunder. In addition to the Rent
reserved hereunder, and except in the case of a Transfer as specified in this
Article 19, subparagraph h below, Tenant shall pay to Landlord all monies,
property and other consideration of every kind whatsoever paid or payable to
Tenant in consideration of or related to such Transfer and for all property
transferred to the Transferee, as all or part of the consideration including,
without limitation, fixtures, other Leasehold Improvements, furniture, equipment
and furnishings (collectively, all of the foregoing monies, property and other
consideration shall be referred to as the "Transfer Consideration"), but
excluding bona fide consideration paid for transfer of Tenant's property.
Following an assignment of this Lease, Landlord shall send the named Tenant any
notice of default by the approved Transferee.
. Any Transfer, except as provided in subparagraph h below, without
Landlord's consent, whether as a result of any act or omission of Tenant, or by
operation of law or otherwise, shall not be binding upon Landlord, and shall
confer no rights upon any third person. Each such unpermitted Transfer shall,
without notice or grace period of any kind, constitute a default by Tenant under
this Lease. The acceptance by Landlord of the payment of Rent following any
Transfer prohibited by this Article 20 shall not be deemed to be a consent by
Landlord to any such Transfer, an acceptance of the Transferee as a tenant, a
release of Tenant from the performance of any covenants herein contained, or a
waiver by Landlord of any remedy of Landlord under this Lease, although amounts
actually received shall be credited by Landlord against Tenant's rent
obligations. Consent by Landlord to any one Transfer shall not constitute a
waiver of the requirement for consent to any other Transfer. No reference in
this Lease to assignees, concessionaires, subtenants or licensees shall be
deemed to be a consent by Landlord to the occupancy of the Lease Premises by any
such assignee, concessionaire, subtenant or licensee.
. If Tenant is a corporation, limited liability company or partnership,
Tenant represents that the ownership and power to vote its entire outstanding
capital stock or partnership interests belongs to and is vested in the persons
listed on Exhibit "E". The foregoing provisions of this paragraph (f)shall not
apply to a publicly held entity whose outstanding voting stock is listed on a
national securities exchange, as defined in the Securities Exchange Act of 1934.
. If any sublease or assignment provides that the subtenant or assignee
is to pay any amount in excess of the rent and other charges due under this
Lease, then whether such excess is in the form of an increased monthly or annual
rental, a lump sum payment (excluding a bona fide security deposit), payment for
the sale, transfer or lease of Tenant's fixtures, leasehold improvements,
furniture and other personal property, but excluding bona fide consideration
paid for transfer of Tenant's property, or any other form (and if the subleased
or assigned space does not constitute the entire Premises, the existence of such
excess shall be determined on a pro rata basis), but excluding bona fide
consideration paid for transfer of Tenant's property, Tenant shall pay to
Landlord any such excess as additional rent no later than ten (10) days after
Tenant's receipt thereof.
. Notwithstanding anything contained herein to the contrary (including
the obligations and procedures as specified in this Article 19 subparagraphs (c)
or (g) herein), Tenant may, without the prior written consent of Landlord,
assign this Lease for the use and occupation of the Premises solely for the
purpose set forth in Article 12 to the following:
() Tenant's parent or subsidiary corporation or to a
corporation under common ownership with and controlled by the same persons
who control Tenant, or
() any party which acquires substantially all of the assets
of Tenant, or
() to a corporation into which Tenant merges or consolidates,
provided, however, that in each such event described in the above
subparagraphs (i) through (iii):
() such assignee shall assume in writing all of Tenant's
obligations hereunder; and
() Tenant continues to remain liable under this Lease
for the performance of all of the terms contained herein including but not
limited to, the payment of Base Rent, and all Additional Rent due under
this Lease;
The provisions (i) through (iii) of this paragraph (i) shall not permit
a Transfer in the event that Tenant is acquired by another corporation and
becomes a subsidiary thereof, (x) unless Tenant continues to be operated as a
separately identified company, substantially in the same manner as before such
acquisition, or (y) if, after such acquisition, or as a result thereof, Tenant's
net worth will decline by twenty-five percent (25%) or more, unless in such case
of reduced net worth, the parent of the party acquiring Tenant agrees to
guaranty Tenant's obligations under this Lease. The liability of any Guarantor
of this Lease shall not be affected as a result of any assignment permitted
under this subparagraph (i).
No Transfer will be permitted under this subparagraph (i) if such
Transfer would result in:
(i) a Transfer of this Lease or the ownership interests in any
Transferee to an entity not affiliated with Tenant through common ownership and
control (except for a purchase of Tenant's assets, in accordance with the
provisions set forth above), or
(ii) a Transfer of this Lease to an entity outside the
ownership family to which Tenant belongs (except for a purchase of Tenant's
assets, in accordance with the provisions set forth above) as a means of
defeating the other provisions of this Article 19 which require Landlord's
consent to a Transfer.
Liquidated Damages:
Tenant acknowledges that it is important to Landlord to know of the occurrence
of an assignment and the identity of an assignee, and that damage to Landlord
will be difficult to ascertain if Tenant fails to notify Landlord of an
assignment permitted under this paragraph 20 (i). Therefore, if Tenant fails to
notify Landlord of any such assignment, Tenant shall be in default under this
Lease; provided, however, that
(1) if Tenant's failure to notify is due to negligence or inadvertence, Tenant
shall pay to Landlord liquidated damages equal to the lesser of (A) One Hundred
Dollars ($100.00) per day for each day after the occurrence of any such
assignment until Landlord receives notice of the assignment or (B) Five Thousand
Dollars ($5,000.00), or (2) if Tenant's failure to notify is intentional (which
Tenant may contest if Tenant disputes Landlord's claim that such failure was
intentional), then Landlord shall be entitled to pursue any remedy available
under this Lease or at law or in equity and/or collect liquidated damages equal
to the amount of One Hundred Dollars ($100.00) per day for each day after the
occurrence of any such assignment until Landlord receives notice of the
assignment.
. Signs. No sign, advertisement or notice shall be inscribed, painted, affixed
or displayed on the windows or exterior walls of the Premises or on any public
area of the Building, except exterior suite door and standard building tenant
identification signs, and then only in such places, numbers, sizes, color and
style as are approved by Landlord and which confirm to all applicable laws
and/or ordinances. Any and all permitted signs shall be installed and maintained
by Landlord at Tenant's sole expense. During the period of six months prior to
the expiration of this Lease or any renewal thereof, Landlord shall have the
right to display on the exterior of the Premises a sign advertising the space as
available "For Rent", so long as such display(s) does not interfere with the
appearance of Tenant's sign(s).
. Rules and Regulations. Tenant shall at all times comply with the rules and
regulations set forth on Exhibit B attached hereto, and with any additions
thereto and modifications thereof adopted from time to time by Landlord, and
each such rule or regulation shall be deemed to be a covenant of this Lease to
be performed and observed by Tenant.
. Parking. Landlord grants Tenant the free and non-exclusive, unassigned, right
to use the parking area at a ratio of not less than 3 spaces per 1,000 square
feet leased or areas designated by the Landlord from time to time. Tenant hereby
agrees to comply with all traffic and parking rules and regulations imposed by
Landlord from time to time. Notwithstanding, Tenant shall have the right to
utilize the loading areas of the Building for additional parking subject to
Landlord's reasonable judgement and approval.
. Landlord Access. Landlord shall have the right to enter upon the Premises
during business hours with reasonable advance notice and at Tenant's option,
Landlord may be accompanied by a designated representative of Tenant except in
cases of emergency for purposes of (i) showing the Premises to prospective
tenants; (ii) to post the Premises with "For Rent" or other offering signs, as
Landlord may deem appropriate; (iii) to exhibit the same to prospective
purchasers or mortgagees; and (iv) to inspect the Premises to see that Tenant is
complying with all its obligations hereunder, or to make required repairs.
. Subordination
() This Lease is subject and subordinate to the lien of any ground
leases and to all mortgages, deeds of trust or deeds to secure debt which may
now or hereafter affect or encumber the Building or the real property of which
the Premises form any part, and to all renewals, modifications, consolidations,
replacements or extensions thereof. This Article shall be self-operative and no
further instrument of subordination shall be required. In confirmation of any
such subordination, Tenant shall execute within ten (10) calendar days after
receipt, any certificate that Landlord may reasonably so request. Tenant
covenants and agrees to attorn to Landlord or to any successor to Landlord's
interest in the Premises, whether by sale, foreclosure or otherwise.
Notwithstanding the foregoing, in the event any ground lessor, mortgagee or the
holder of any deed of trust or deed to secure debt shall elect to make the lien
of this Lease prior to the lien of its ground lease or mortgage, then, upon such
party giving Tenant written notice to such effect this Lease shall be deemed to
be prior in lien to the lien of such ground lease or mortgage, whether dated
prior or subsequent thereto.
. Mortgagee Protection. Tenant agrees to give any Mortgagees and/or Trust Deed
Holders, by Registered Mail, a copy of any Notice of Default served upon
Landlord, provided that prior to such notice Tenant has been notified, in
writing (by way of Notice of Assignment of Rents and Leases, or otherwise), of
the address of such Mortgagees and/or Trust Deed Holders. Tenant further agrees
that if Landlord shall have failed to cure such default within the time provided
for in this Lease, then the Mortgagees and/or Trust Deed Holders shall have an
additional ten (10) business days within which to cure such default or if such
default cannot be cured within that time, then such additional time as may be
necessary if within such ten (10) business days, any Mortgagee and/or Trust Deed
Holder has commenced and is diligently pursuing the remedies necessary to cure
such default (including but not limited to commencement of foreclosure
proceedings, if necessary to effect such cure), in which event this Lease shall
not be terminated while such remedies are being so diligently pursued. Tenant
agrees that in the event of the sale of the Property, by foreclosure or deed in
lieu thereof, the purchaser at such sale shall only be responsible for the
return of any security deposit paid by Tenant to Landlord in connection with
this Lease to the extent that such purchaser actually receives such security
deposit and acknowledge receipt thereof in writing.
. Construction of Tenant Improvements by Landlord. Landlord shall make such
improvements in and to the Premises as designated on Exhibit C attached hereto
and by this reference made a part hereof. Any improvements other than those
shown on Exhibit C shall be subject to Landlord's prior written approval which
shall not to be unreasonably withheld, conditioned or delayed in accordance with
Article 9 and, shall be at the Tenant's sole expense, Landlord's sole obligation
with respect to the improvements set forth on Exhibit C is to construct such
improvements in accordance with the specifications set forth on Exhibit C.
Landlord does not represent or warrant to Tenant that the work described on
Exhibit C is sufficient to make the Premises suitable for Tenant's intended use
or that such work will be sufficient to enable Tenant to obtain a certificate of
occupancy for the Premises.
. Contribution. Landlord shall contribute an amount equal to the lesser of (i)
$636,500.00 or (ii) the actual cost of alterations of the Premises by Tenant.
Such alterations shall be in accordance with Article 9 of this Lease. Landlord
shall reimburse Tenant for the cost of such alterations upon receipt of paid
invoices and lien waivers from Tenant. No lien waivers will be required if
Tenant provides proof that all parties holding lien rights have been paid in
full or, if in the sole opinion of Landlord, the time period for perfecting such
liens has expired.
. Hold-Over. If Tenant shall not immediately surrender the Premises the day
after the end of the term hereby created, then Tenant shall, by virtue of this
agreement, become, at Landlord's option, either (a) a tenant at sufferance, or
(b) a tenant from month-to-month. In either of such events, rent shall be
payable at a monthly or daily rate, as the case may be, of one hundred and fifty
percent (150%) the Base Rent and Additional Rental payable by Tenant immediately
prior to the expiration or termination of the term, with said tenancy to
commence on the first day after the end of the term above demised; and said
tenancy shall be subject to all of the conditions and covenants of this Lease
insofar as such covenants and conditions are applicable thereto. Nothing
contained in this Lease shall be construed as a consent by Landlord to the
occupancy or possession of the Premises after the expiration of the term of this
Lease. If Landlord fails to make an election under clause (a) or (b) within ten
(10) days after the expiration or termination of the term, the hold-over tenancy
shall be deemed to be a tenancy from month-to-month. If Tenant holds over as a
month-to-month tenant, each party hereto shall give to the other at least thirty
(30) days' written notice to quit the Premises (any right to a longer notice
period being hereby expressly waived), except in the event of non-payment of
rent in advance or of the other Additional Rents provided for herein when due,
or of the breach of any other covenant by the said Tenant, in which event Tenant
shall not be entitled to any notice to quit, the usual thirty (30) days' notice
to quit being expressly waived; provided, however, that in the event Tenant
shall hold over after expiration of the term hereby created, and if Landlord
shall desire to regain possession of said Premises promptly at the expiration of
the term aforesaid, then at any time prior to the date Landlord makes (or is
deemed to have made) its election under clause (b) of this Article 28, Landlord
at its option, may re-enter and take possession of the Premises forthwith,
without process, or by any legal action or process in force in the state in
which the Premises is located; provided, however, that if Landlord has accepted
rent for any period beyond the expiration of the term and Tenant is not then in
default under any of the provisions of this Lease, Landlord shall promptly
refund to Tenant an amount equal to any excess rental received by Landlord with
respect to any period after Landlord exercises its right to re-enter the
Premises under this Article 28.
. Estoppel Certificates. Tenant agrees, at any time and from time to time, upon
not less than ten (10) calendar days' prior written notice by Landlord, to
execute, acknowledge and deliver to Landlord or to such person(s) as may be
designated by Landlord, a statement in writing on a form provided by Landlord
(i) certifying that Tenant is in possession of the Premises, has unconditionally
accepted the same and is currently paying the rents reserved hereunder, (ii)
certifying that this Lease is unmodified and in full force and effect (or if
there have been modifications, that the Lease is in full force and effect as
modified and stating the modifications), (iii) stating the Rent Commencement
Date and the dates to which the rent and other charges hereunder have been paid
by Tenant and (iv) stating whether or not to the best knowledge of Tenant,
Landlord is in default in the performance of any covenant, agreement or
condition contained in this Lease, and, if so, specifying each such default in
detail. If Tenant fails to execute and return any such agreement to Landlord
within such ten (10) day period, then, in addition to any other remedies
available with respect to such default of Tenant, Landlord may elect to treat
the information in the estoppel certificate prepared by Landlord as true and
correct and such information shall be binding on Tenant as if Tenant had signed
such certificate. Any such statement delivered or deemed delivered pursuant
hereto may be relied upon by any owner, prospective purchaser, mortgagee or
prospective mortgagee of the Building or of Landlord's interest therein.
. Quiet Enjoyment. Landlord warrants that it has the right to make this Lease
for the term aforesaid and that it will put Tenant into complete and exclusive
possession of the Premises. Landlord covenants that if Tenant pays the rent and
all other charges provided for herein, performs all of its obligations provided
for hereunder and observes all of the other provisions hereof, Tenant shall at
all times during the term hereof peaceably and quietly have, hold and enjoy the
Premises, without any interruption or disturbance from Landlord, or anyone
claiming through or under Landlord, subject to the terms hereof.
. Delay. In the event Landlord for any reason is unable to deliver possession of
the Premises to Tenant within thirty (30) days after the date of this Lease,
Tenant may, at its option upon written notice to Landlord terminate this Lease
and, except for the return of any security deposit or prepaid rent, the parties
hereto shall have no further obligation or liability to each other. In the event
that Tenant does not so terminate this Lease, at such time as Landlord tenders
possession of the Premises to Tenant in writing, Tenant shall commence payment
of rent pursuant to Article 3 hereof, and the expiration date of the term of
this Lease shall be extended for a period equal to the period of such delay. In
the event of any such delay, Tenant shall execute a Commencement and Estoppel
Agreement as provided in Article 2, specifying the date on which possession of
the Premises was tendered by Landlord.
. Modifications Due to Financing. If, in connection with obtaining temporary or
permanent financing for the Building or the land upon which the Building is
located, any such lender shall request reasonable modifications of this Lease as
a condition to such financing, Tenant agrees that Tenant will not unreasonably
withhold, delay or defer the execution of any agreement of modification of this
Lease provided such modifications do not increase the financial obligations of
Tenant hereunder or materially adversely affect the leasehold interest hereby
created or Tenant's reasonable use and enjoyment of the Premises.
. Attorneys Fees. The non-prevailing party shall reimburse the prevailing party
upon demand for any costs or expenses, including attorney fees, incurred in
connection with the enforcement of obligations hereunder. Any and all costs or
expenses incurred by Landlord pursuant to the provisions hereof shall be
considered as Additional Rent hereunder. Tenant acknowledges that it has engaged
counsel in connection with the negotiation of this Lease, or that Tenant has
freely decided to enter into this Lease without engaging the services of
counsel.
. Notices. All notices, rent or other payments required or desired to be given
hereunder by either party to the other shall be sent by first class mail,
postage prepaid, or by a reputable commercial messenger service, except that
notices of default shall be sent by certified mail, return receipt requested or
by a receipted commercial messenger service (such as Federal Express or Airborne
Express) for delivery on the next following business day. Notices to the
respective parties, and any amounts required to be paid hereunder, shall be
addressed and sent as follows:
If to Landlord: Notices and Correspondence Rent, Payments, etc.
c/o Franklin Property Company c/o Franklin Property Company
8401 Connecticut Avenue P.O. Box 64772
Chevy Chase, Maryland 20815 Baltimore, Maryland 21264-4288
Attn: Legal Department
If to Tenant: Real Estate Department (w/copy to General Counsel)
e.spire Communications, Inc.
133 National Business Parkway
Suite 200
Annapolis Junction, MD 20701
Either party may designate a substitute address, from time to time, by notice in
writing sent in accordance with the provisions of this Article 34.
. Applicable Law. This Lease shall be construed under the laws of
the State in which the Premises is located.
. No Reservation. The submission of this Lease for examination does not
constitute a reservation of or option for the Premises, and this Lease becomes
effective only upon full execution by Landlord and Tenant. Neither party shall
have any legal obligation to the other in the event that the Lease contemplated
herein is not consummated prior to the execution thereof for any reason.
Discussions between the parties respecting the proposed lease described herein,
shall not serve as a basis for a claim against either party or any officer,
director or agent of either party.
. Parties; Assigns and Successors. Feminine or neuter pronouns may be
substituted for those of the masculine form, and the plural may be substituted
for the singular number, in any place or places herein in which the context may
require such substitution or substitutions. The term "Landlord" as used in this
Lease, means only the owner for the time being of the Landlord's interest in
this Lease; and, in the event of the sale, assignment or transfer by such owner
of the Landlord's interest in this Lease, such owner shall thereupon be released
and discharged of all covenants and obligations of Landlord hereunder thereafter
accruing except for ongoing disputes between the parties and disputes that arise
after the transfer of Landlord's ownership interest which nonetheless accrued
prior to such transfer. Except as provided in the preceding sentence, all of the
covenants, agreements, terms, conditions, provisions and undertakings in this
Lease shall inure to the benefit of, and shall extend to and be binding upon,
the parties hereto and their respective heirs, executors, legal representatives,
successors and assigns, to the same extent as if they were in every case named
and expressed. If two or more corporations, partnerships or other business
associations (or any combination of two or more thereof) shall sign this Lease
as Tenant, the liability of each such corporation, partnership or other business
association to pay rent and perform all other obligations hereunder shall be
deemed to be joint and several and any notice required or permitted by the terms
of this Lease may be given by or to any one thereof, and shall have the same
force and effect as if given by or to all thereof. In like manner, if the Tenant
named in this Lease shall be a partnership or other business association, the
members of which are, by virtue or statute or general law, subject to personal
liability, the liability of each such member shall be joint and several, but no
personal liability shall be imputed to the individuals execution on behalf of
the Tenant by the mere fact of such execution.
. Severability. If any term, or condition of this Lease or the application
thereof to any person or circumstance shall to any extent be held invalid or
unenforceable, the remainder of this Lease or the application of such term,
covenant or condition to persons or circumstances other than those as to which
it is held or unenforceable, shall not be affected thereby and each term,
covenant and condition of this Lease shall be valid and enforced to the fullest
extent permitted by law.
. Rent Tax. If applicable in the jurisdiction where the Premises are situated,
Tenant shall pay and be liable for all rental, sales and use taxes or other
similar taxes, if any, levied or imposed by any City, State, County or other
governmental body having authority, such payments to be in addition to all other
payments required to be paid to Landlord by Tenant under the terms of this
Lease. Any such payments shall be paid concurrently with the payment of the rent
upon which the tax is based as set forth above.
. Acts of God. Neither party shall not be required to perform any covenant or
obligation in this Lease other than monetary payments due Landlord from Tenant
hereunder, or be liable in damages to the other party, so long as the
performance or nonperformance of the covenant or obligation is delayed, caused
by or prevented by an act of God or force majeure.
. Landlord's Liability. Tenant agrees that Landlord shall have no personal
liability with respect to any of the provisions of this Lease and Tenant shall
look solely to the estate and property of Landlord in the land and buildings
comprising the Property of which the Premises forms a part for the satisfaction
of Tenant's remedies, including, without limitation, the collection of any
judgement or the enforcement of any other judicial process requiring the payment
or expenditure of money by Landlord, subject, however, to the prior rights of
any holder of any Mortgage covering all or part of the Property, and no other
assets of Landlord shall be subject to levy, execution or other judicial process
for the satisfaction of Tenant's claim and, in the event Tenant obtains a
judgement against Landlord, the judgement docket shall be so noted. This Section
shall inure to the benefit of Landlord's successors and assigns and their
respective principals.
. Remedies Cumulative; No Waiver. All rights and remedies given herein and/or by
law or in equity to either party are separate, distinct and cumulative, and no
one of them, whether exercised by Landlord or not, shall be deemed to be in
exclusion of any of the others. No failure to exercise any power given either
party hereunder, or to insist upon strict compliance with obligations hereunder,
and no custom or practice of the parties at variance with the terms hereof shall
constitute a waiver of the right to demand exact compliance with the terms
hereof.
. Modification. This writing is intended by the parties as the final expression
of their agreement and as a complete and exclusive statement of the terms
thereof, all negotiations, considerations and representations between the
parties having been incorporated herein. No course of prior dealings between the
parties or their affiliates shall be relevant or admissible to supplement,
explain or vary any of the terms of this Lease. Acceptance of, or acquiescence
in, a course of performance rendered under this or any prior agreement between
the parties or their affiliates shall not be relevant or admissible to determine
the meaning of any of the terms of this Lease. No representations,
understandings or agreements have been made or relied upon in the making of this
Lease other than those specifically set forth herein. This Lease can only be
modified by a written agreement signed by all of the parties hereto or their
duly authorized agents.
. Waiver of Jury Trial. Landlord and Tenant each hereby waive all right to trial
by jury in any claim, action, proceeding or counterclaim by either party against
the other on any matters arising out of or in any way connected with this Lease,
the relationship of Landlord and Tenant and/or Tenant's use of occupancy of the
Premises.
. Interpretation. Captions and headings are for convenience and reference only.
Whenever in this Lease any printed portion, or any part thereof, has been
stricken out, whether or not any replacement provision has been added, this
Lease shall be read and construed as if the material so stricken out were never
included herein, and no implication shall be drawn from the text of the material
so stricken out which would be inconsistent in any way with the construction or
interpretation which would be appropriate if such material had never been
contained herein. The Exhibits referred to in this Lease and attached hereto are
a substantive part of this Lease and are incorporated herein by reference.
Unless and to the extent otherwise expressly provided to the contrary in this
Lease, time shall be of the essence with respect to all of the obligations of
the parties under this Lease. In any legal proceeding respecting this Lease,
this Lease will be construed with equal weight for the rights of both parties,
the terms hereof having been determined by free and fair negotiation, with due
consideration for the rights and requirements of both parties. Both parties
agree that they have had equal input into the wording and phraseology of the
provisions of this Lease, and that, therefore, no provision will be construed as
drafted by one party or the other, without respect to whose draft of this Lease
the wording or phraseology arises. If any of the typewritten portions of this
Lease conflict with any of the printed provisions of this Lease, the provisions
set forth in the typewritten portions shall control; provided, however, that to
the extent the printed portions of this Lease may be read in a manner which will
not conflict with the provisions of the typewritten portions, then such
interpretation shall be deemed to be the correct interpretation of the
provisions of this Lease.
. Financial Statements. Tenant, upon Lease execution, and thereafter upon
written request by Landlord, will provide Landlord with a copy of its current
financial statements consisting of a balance sheet, an earnings statement,
statement of changes in financial position, statement of changes in tenant's
equity, and related footnotes, prepared in accordance with generally accepted
accounting principles. Such financial statements must be either certified by a
CPA or sworn to as to the accuracy by Tenant's most senior official and its
chief financial officer. The financial statements provided must be as of a date
not more than 12 months prior to the date of request. Landlord shall retain such
statements in confidence, but may provide copies to lenders and potential
lenders. If Tenant is publicly traded, Landlord will accept Tenant's 10-K and
10-Q reports to the S.E.C. in lieu of the above.
. Special Stipulations. The terms, covenants and conditions set forth in any
Articles of this Lease numbered higher than this Article 46 ("Special
Stipulations") are intended to supplement and, in certain events, modify or
vary, the other provisions set forth in the foregoing provisions of this Lease.
If any of the Special Stipulations conflict with any of the foregoing provisions
of this Lease, the provisions set forth in the Special Stipulations shall
control; provided, however, that to the extent the preceding portions of this
Lease may be read in a manner which will not conflict with the provisions of the
Special Stipulations, then such interpretation shall be deemed to be the correct
interpretation of the provisions of this Lease and the Special Stipulations.
. Environmental Matters.
() Tenant represents that the list attached hereto as Exhibit E, is a
complete and accurate list of chemicals and hazardous materials, including
approximate quantities, to be used and stored in or about the Premises. The
amounts of chemicals and hazardous materials will be limited to quantities
necessary for the Tenant's day to day operations. Landlord is relying on the
list in Exhibit E in not requiring Gradual Pollution and/or Contamination
Liability Insurance. Should Tenant's operation change such that additional
chemicals and/or quantities significantly larger than those stipulated in
Exhibit E are required for Tenant's operation, Tenant shall notify Landlord and
Landlord reserves the right to require Tenant to obtain and maintain Gradual
Pollution and/or Contamination Insurance. The Tenant will, upon written request
from Landlord, provide the Landlord with an updated list of chemicals and
hazardous materials with quantities located within the Premises.
() Tenant shall use its best efforts to obtain, within 60 days of the
Lease Date, Sudden and Accidental Pollution and/or Contamination Liability
Insurance in a form acceptable to the Landlord. In the event that the Tenant
fails to obtain such insurance coverage, the Tenant will reimburse Landlord the
reasonable costs of having the Landlord's environmental consultant inspect, on a
quarterly basis, the Tenant's records and procedures regarding the Tenant's
storage, use, and disposal of chemicals and hazardous materials within the
Premises. Such reimbursement will be due as Additional Rent pursuant to the
provisions of this Lease. In the event that the Landlord's environmental
consultant finds that the Tenant is not in compliance with any applicable law,
regulation, or codes regarding the storage, use or disposal of chemicals or
hazardous materials, such non-compliance shall constitute a default under this
Lease.
() Tenant shall defend, indemnify, and hold Landlord and Landlord's
agents, offers, directors, employees, and contractors harmless against and from
any and all injuries, costs, expenses, liabilities, losses, damages,
injunctions, suits, actions, fines, penalties, and demands of any kind or nature
(including reasonable attorneys fees) occasioned by or arising out of or
relating to any environmental pollution, damage, condition or problem arising
from the presence of any hazardous substances, asbestos or other toxic waste as
deemed in any federal, state, or municipal governmental or quasi-governmental
laws, rules, regulations, or ordinances in or about the Premises, the Building
or the Property in violation of law that are existing in the Premises, the
Building or the Property and only if caused by the acts, omissions or negligence
of Tenant, its agents, or employees.
() Landlord shall defend, indemnify, and hold Tenant and Tenant's
agents, officers, directors, employees, and contractors harmless against and
from any and all injuries, costs, expenses, liabilities, losses, damages,
injunctions, suits, actions, fines, penalties, and demands of any kind or nature
(including reasonable attorney fees) occasioned by or arising out of or relating
to any environmental pollution, damage, condition or problem arising from the
presence of any hazardous substances, asbestos or other toxic waste as defined
in any federal, state, or municipal governmental or quasi-governmental laws,
rules, regulations, or ordinances in or about the Premises or the Building or
the Property in violation of law only if (i) such hazardous substances are
existing in the Premises or the Building or the Property prior to Tenant's
occupancy of the Premises or (ii) caused by the acts, omissions or negligence of
Landlord, its agents, or employees and not caused by Tenant's acts, omissions or
use of the Premises.
. Option Term.
() Tenant shall have the option to renew the term of this Lease for one
(1) additional period(s) of five (5) years (the "Option Term") following the
expiration of the initial lease term provided that this lease is in full force
and effect, the Tenant or Tenant's subsidiaries, affiliates or successors by
merger or acquisition shall be in possession and occupying of at least
seventy-five percent (75%) the Premises, and Tenant shall not be in default
beyond the expiration of any applicable notice and cure period in the
performance or observance of any of the terms, conditions, provisions and/or
covenants of the Lease. All such rights of a renewal shall be exercised by
delivery to Landlord of written notice of Tenant's intention to renew the term
at least nine (9) months but not more than twelve (12) months prior to the
expiration of the men applicable term of the Lease. The Option Term shall be of
the same terms, covenants and conditions as the original lease except Base Rent
for the Option Term shall be the then Prevailing Market Rent of comparable space
within the Sterling, Virginia, market area.
(i) Within fifteen (15) business days after receipt of
Tenant's notice exercising its option to extend the term of this Lease, Landlord
shall notify Tenant of Landlord's estimate of Prevailing Market Rent. If Tenant
disagrees with Landlord's estimate of Prevailing Market Rent, Tenant may rescind
such renewal notice thereby terminating its right of renewal provided by this
lease, or Tenant shall notify Landlord that it has elected to submit the
determination of Prevailing Market Rent to Arbitration, in which event the
provisions of subparagraph (b)(ii)(a) of this Article 49 shall govern the
selection of arbitrators and the establishment of the Prevailing Market Rent
payable for the year of the then applicable Option Term; provided, however, that
if Tenant does not elect to either rescind its renewal notice or to submit the
determination of Prevailing Market Rent to Arbitration during such fifteen (15)
day period, then the Landlord's estimate of Prevailing Market Rent shall be
deemed to be agreed to by Tenant, and shall be the Base Rent payable by Tenant
to Landlord during the first year of the then applicable Option Term.
() ()Definition: As used herein, the term 'Prevailing Market Rent'
means the most probable rent (as determined pursuant to the appraisal procedure
hereinafter set forth) at which the Premises would be leased in a comparable and
open market, under all conditions requisite to a fair lease, the Landlord and
Tenant each acting prudently, knowledgeable, and assuming the rent is not
affected by undue stimulus. Implicit in this definition is the consummation of
the lease of such space beginning on the commencement date of the Lease of the
Premises under conditions whereby:
A. Landlord and Tenant are typically motivated (i.e., neither party is
compelled to enter into a lease and both parties are willing to enter into a
lease).
B. Both parties are well informed or well advised, and each acting in
what it considers its own best interest.
1. A reasonable time is allowed for exposure in the
open market.
D. The Prevailing Market Rent shall be computed as an amount equal to the then
prevailing market rental rate of the Premises, as if vacant with Building
standard improvements, and taking into account the annual adjustment of Base
Rent, Tenant's obligation to pay Tenant's Pro-Rata Share of Annual Operating
Costs and all existing market factors.
E. All of the terms, covenants and conditions of the Lease (except terms
respecting the amount of Base Rent) remain in effect throughout the term.
() In the event of a dispute as to determination of Prevailing Market
Rent referred to in this paragraph, such dispute shall be resolved in accordance
with the following:
(a) If Landlord and Tenant fail to agree upon the Prevailing Market Rent as
referred to in this paragraph, within the time periods provided for herein, then
Landlord and Tenant each shall give notice to the other setting both the name
and address of a licensed real estate broker or appraiser (hereinafter
'appraiser') who shall be a M.A.I. Real Estate professional with substantial
experience in commercial real estate appraisal designated by it to make the
determinations hereafter required. Each appraiser shall be to calculate the
Prevailing Market Rent as provided in each of the foregoing sections which is
the subject of the dispute and is in accordance with the criteria referenced
therein. If either party shall fail to give notice of such designations within
ten (10) days after failing to agree between themselves, then the appraisal made
by the appraiser so designated shall be the Appraisal Prevailing Market Rent. If
two appraisers have been designated, such two appraisers shall consult with each
other and, within thirty (30) days thereafter, issue their determinations of
Appraisal Prevailing Market Rent in writing, and give notice thereof to each
other and to Landlord and Tenant. If such two appraisers shall concur as to the
determination of the prevailing Market Rent and submit their decision in writing
to Landlord and Tenant, such concurrence shall be final and binding upon
Landlord and Tenant. If the two determinations of Prevailing Market Rent shall
be within five percent (5%) (measured from the higher appraisal) of each other,
the Prevailing Market Rent shall be deemed to be the average of the two
appraisers' determinations. If such two appraisers' determinations shall not so
concur or coincide, then such two appraisers shall immediately (i) designate a
third appraiser, (ii) prepare detailed written appraisals, and (iii) submit
copies of such appraisal to Landlord, Tenant and such third arbitrator. If the
two appraisers shall fail to agree upon the designation of such third appraiser
within eight (8) days of the date on which the last determination was rendered,
then either party may apply to the American Arbitration Association or any
successor thereto having jurisdiction, for the designation of such appraiser.
All arbitrators shall be licensed real estate appraisers or brokers who shall
have had at least ten (10) years continuous experience in the business of
appraising or managing real estate or acting as real estate agents or brokers in
the Sterling, Virginia area. The third appraiser shall conduct such hearings and
investigations as he may deem appropriate and shall, within twenty (20) days
after the date of designation of the third appraiser, choose the determination
of the two appraisers originally selected by the parties which is the nearest to
the determination such third appraiser would have made acting alone and applying
the standards set forth therefor in this Lease, and that choice by the third
appraiser shall be binding upon Landlord and Tenant. Each party shall pay its
own counsel fees and expenses, if any, in connection with any arbitration under
this Article, including the expenses and fees of any appraiser selected by it in
accordance with the provisions of this paragraph, and the parties shall share
equally all other expenses and fees of any such arbitration, including the
expenses of the third appraiser. The determination rendered in accordance with
the provisions of this paragraph shall be final and binding in fixing the
Prevailing Market Rent.
However, in no event shall the Base Rent for the first Lease Year of the Option
Term be less than the then Base Rent for the last Lease Year of the initial
Lease Term as escalated by three percent (3%).
. Satellite Dish. Tenant may install one (1) satellite dish antenna of
three (3) feet or less in diameter and related wiring and facilities
(the "Satellite Dish") on the roof of the Property in an area approved by
Landlord, upon the following terms and conditions:
() The Satellite Dish shall be installed at the sole cost and expense of Tenant.
The exact location of the Satellite Dish and all construction and improvements
related thereto are subject to Landlord's approval.
() Tenant agrees to paint the Satellite Dish a color approved by Landlord and to
screen the Satellite Dish so that it is not visible from the common areas of the
Building or adjoining public streets.
() Tenant shall repair promptly, at its own expense, any damage to the Property,
the Building or the roof caused by the use, maintenance, installation, or
removal of the Satellite Dish or by the negligence of Tenant or Tenant's
employees, agents, contractors or subcontractors. The Satellite Dish shall be
removed from the roof of the Property, and the roof and adjacent areas shall be
surrendered to Landlord at the expiration or sooner termination of the term
hereof, in as at least as good condition as existed on the Lease Date, excepting
only depreciation caused by ordinary wear and tear. The Satellite Dish shall be
used solely in connection with Tenant's business operation in the Premises, and
shall not be used by any other party.
() Landlord reserves the right to relocate the Satellite Dish, at Landlord's
expense, at any time during the term of this Lease, to another location will not
unreasonably interfere with satisfactory operation of the Satellite Dish.
() Landlord assumes no liability or responsibility for interference with the
Satellite Dish caused by the construction of the additional buildings on the
Property. Tenant agrees to assume all costs for relocation of the Satellite Dish
required if such relocation is as a result of the construction of additional
buildings on the Property.
() The Satellite Dish and areas of the roof used by Tenant in connection
therewith shall be deemed to be a part of the Premises for purposes of Articles
8, 9, 10, 13, 18, and 19 of this Lease and Tenant shall include the Satellite
Dish within the coverage of all insurance policies required to be maintained by
Tenant under this Lease.
. Year 2000. Landlord believes that the computer hardware and software for the
portions of the Building and its systems which are operated or maintained by
Landlord will operate after January 1, 2000. The foregoing information is based
upon a republication, as defined in the Year 2000 Information and Readiness
Disclosure Act, Public Law 105-271 (the "Year 2000 Act"), of information
received from other parties, such as manufacturers, suppliers or service
vendors, which may or may not be intended to be Year 2000 Statements (as defined
in the Year 2000 Act) by such parties. Landlord expressly disclaims any
liability for the failure of services provided by any utility company or other
private, quasi-governmental or governmental entities in providing any services
to the Building.
. Telecommunications Access. If any tenant of the Building or surrounding Park
(s) or Building (s) owned or controlled by Landlord requests in writing that
Landlord permit e.spire Communications, Inc. or its permitted
successors/assigns, to provide such tenant telecommunications access services
through optic fiber wiring (hereinafter referenced to as "Fiber Access") then,
Landlord shall not unreasonably withhold condition or delay its approval for
Tenant to install, operate, maintain, repair and replace fiber optic cable and
associated equipment (the "Facilities") within the Building (also referred to as
the "Licensed Premises") to provide its public utility telecommunications
services on a non-exclusive basis to or for the benefit of tenants of the
Building. In connection herewith:
() Landlord shall provide Tenant reasonable access to vertical and
horizontal shafts to enable Tenant to provide its telecommunications services to
tenants of the Building.
() Following notice to and approval of all plans and specifications by
Landlord. Tenant shall have right of access to the Building and the right to
construct, where necessary and at its expense, building entrance and conduit
facilities associated with providing its telecommunications services in the
Building.
() Nothing contained herein shall be construed as granting to tenant
any property or ownership rights in the Building or to create a partnership or
joint venture between Landlord or Tenant.
() Tenant shall defend, indemnify and save Landlord harmless from and
against all claims, liabilities, suits, fines, penalties, damages, losses, fees,
costs and expenses, including attorney fees, which may be imposed upon, incurred
by, or served against Landlord by reason of:
() any work or thing done by or on behalf of the Tenant, or
any of its agents, contractors, subcontractors, servants, employees or
invitees, in or about the Landlord's Building or any parts thereof;
() any use, occupation, condition, or operation by the Tenant, or any
of its agents, contractors, subcontractors, servants, employees, Tenants, or
invitees, in or about the Premises or the Building or any part thereof, or any
passageway or space adjacent thereto, or elsewhere in the Premises or the
Building;
() any act or omission on the part of the Tenant, or any of its
agents, contractors, subcontractors,
servants, employees, Tenants, or invitees;
() any occurrence, accident, injury (including death), or damage,
directly or indirectly caused by the Tenant or any of its agents, contractors,
subcontractors, servants, employees, Tenants, or invitees to any person or
property carried in, or about the Licensed Premises or any part thereof, or in
or about the Premises or the Building;
() any lien arising as a result of any of Tenant's actions or
omissions with respect to its activities on or with respect to the Licensed
Premises or the Facilities; and
() failure of Tenant to vacate the Licensed Premises or to remove the
Facilities as required under this Lease.
The Facilities shall be deemed to be a part of the Premises for all purposes of
the Lease including, without limitation, Articles 7, 8, 9, 13, 17 and 18.
All local, state or federal permits necessary for the use of the Facilities
shall be obtained by the Tenant at Tenant's sole cost and expense and prior to
the use herein contemplated. Tenant shall have its public liability and other
insurance policies endorsed to include the Facilities as a part of the Premises.
. LETTER OF CREDIT. For purposes of this Article 53 only, the Rent
Commencement Date shall mean July 15, 1999.
() In order to secure the prompt payment of Minimum Rent and Additional Rent
under the Lease (the "Lease Liabilities") Tenant has on this date delivered to
Landlord a letter of credit Number SB-902185-0101, in favor of Landlord as the
beneficiary, issued by The First National Bank of Maryland in the initial amount
of Three Hundred Fifty Thousand and 00/100 Dollars ($350,000.00), together with
all renewals and extensions thereof and substitutions therefor, and all cash
proceeds thereof (all of the foregoing are herein collectively referred to as
the ("Letter of Credit"). The Letter of Credit shall provide by its Terms that,
if Landlord has not notified the issuer of the occurrence of an event of
default, the amount thereof shall be reduced by the sum of (i) Fifty Thousand
Dollars and 00/100 Dollars ($50,000.00) on the third anniversary of the Rent
Commencement Date; (ii) One Hundred Thousand and 00/100 Dollars ($100,000.00) on
the fourth anniversary of the Rent Commencement Date; (iii) One Hundred Thousand
and 00/100 Dollars ($100,000.00) on the fifth anniversary of the Rent
Commencement Date; (iv) Fifty Thousand and 00/100 Dollars ($50,000.00) on the
sixth anniversary of the Rent Commencement Date. At no time during the term of
this Lease (including renewals) shall the Letter of Credit be less than Fifty
Thousand 00/100 Dollars ($50,00.00). In the alternative, Tenant may provide an
initial Letter of Credit in the amount of Three Hundred Fifty Thousand and
00/100 Dollars ($350,000.00) expiring on the third anniversary of the Rent
Commencement Date, in which event, Tenant shall provide to Landlord not later
than thirty (30) days prior to such date, a replacement Letter of Credit in the
amount then required to be maintained by Tenant under this Lease, providing for
an additional term of not less than one (l) year. If Tenant fails to renew or
replace the Letter of Credit as aforesaid, Landlord may present the Letter of
Credit for payment by the issuer thereof, and retain the proceeds of the Letter
of Credit as the Security Deposit under this Lease, and, if Landlord retains the
proceeds of the Letter of Credit as the Security Deposit, Landlord may commingle
the deposit with its own funds. If Tenant defaults in the payment of rent or in
the performance or observance of any other obligations to be performed on its
part under this Lease and does not cure such default within any notice and cure
period provided for in this Lease, Landlord may present the Letter of Credit for
payment by the issuer thereof and apply the proceeds to payment of Minimum Rent
or Additional Rent in default, and/or to the prepayment of the Minimum Rent for
any subsequent period of the term and/or to any amount to which Landlord may be
entitled under this Lease; and Tenant shall promptly thereafter restore the
Letter of Credit to the original amount above specified. The right of Landlord
to apply the Proceeds of the Letter of Credit as above specified shall not be
construed as a limitation upon Landlord's right to invoke any other remedy
available under this Lease or at law or equity for breach of this Lease, or to
collect the full amount of damages owing by Tenant on account of such breach.
If, by reason of Tenant's default under this Lease, Landlord terminates this
Lease at any time or reenters the Premises, Landlord may, at its option, either
retain the Proceeds of the Letter of Credit as liquidated damages (applying
against the damages which it suffers but without waiving its rights to recovery
of additional damages to which it may be entitled) or apply it to the monthly
installments of Minimum Rent and other amounts payable under this Lease
hereunder in inverse order of accrual.
() The Letter of Credit shall be issued to Landlord, shall be unconditional
(i.e., without requirements or conditions for presentation, honor or payment),
except as expressly provided for below, and shall be irrevocable during its
stated term. The Letter of Credit may state or require that, at the time that
Landlord presents the Letter of Credit for payment, such presentation shall be
accompanied by a written statement executed by any person purporting to be an
authorized officer of the general partner of Landlord as follows:
This shall certify that a default by Tenant in the payment of rent has
occurred and is continuing under that certain Lease dated ____________
by and between Dulles North Office Park II Corporation, as Landlord,
and e.spire Communications as Tenant. Any notice or notices of default
required by such Lease have been given by Landlord to Tenant and Tenant
has not cured within any period for cure provided for in the Lease.
Based upon the foregoing, Landlord hereby presents Letter Credit No.
SB-902185-0101 for payment and hereby demands that the issuer thereof
draw upon such Letter of Credit and remit the proceeds of the Letter of
Credit to Landlord."
() Any Letter of Credit which has an expiration date prior to the expiration
date of the term of this Lease (including any Option Terms exercised by Tenant)
shall also provide that Landlord may present the Letter of Credit for payment
when accompanied by the following written statement:
"Tenant has failed to renew or replace the Letter of Credit prior to
ten (10) days before its expiration date, and Landlord is accordingly
entitled to draw upon the Letter of Credit."
() The Letter of Credit shall also expressly state and provide that the issuer
is entitled to rely on any statement in the forms provided above which purports
on its face to be executed by an officer of Landlord, and that the issuer is not
obligated to verify the authority of any such person to execute any such
statement on Landlord's behalf, nor shall the issuer be liable in any manner
whatsoever if any such statement is found to have been improperly delivered by
Landlord, or if such statement is delivered by a person not duly authorized to
do so on Landlord's behalf.
() In addition to all other rights available to it under applicable laws or
otherwise: (a) Landlord, in conjunction with the assignment, pledge, or transfer
of its interest as Landlord under the Lease, shall have the right to assign
therewith Landlord's rights in the Letter of Credit, and any assignee, pledges,
or transferee shall have the rights of Landlord hereunder with respect to the
Letter of Credit so assigned, pledged, or transferred, and Landlord shall be
thereafter relieved from all duties with respect to any such Letter of Credit;
provided Landlord provides Tenant with written documentation evidencing such
assignment, pledge or transfer.
. Additional Area. Subject to the federal, state and local laws, ordinances and
regulations, Tenant may utilize an exterior area of not more than seven hundred
fifty (750) square feet unless approved by Landlord, such approval not to be
unreasonably withheld or delayed (hereinafter referred to as the "Additional
Area") adjacent to the Building which shall be located in an area to be agreed
upon by Landlord and Tenant solely to install, operate, maintain, repair and
replace during the term of this Lease, at its sole cost and expense, a generator
or generators of sufficient capacity to provide approximately 2,500 kilowatts
and an appropriately sized fossil fuel storage tank, together with related
wiring, piping and equipment including pipes and conduit to and from the
Premises to the generator, and for no other purpose whatsoever. Tenant, at its
sole cost and expense, shall maintain the Additional Area in a safe, clean and
orderly condition. All work in the Additional Area shall be performed in
accordance with Article 9. The Additional Area shall be deemed to be a part of
the Premises for all purposes of the Lease including without limitation,
Articles 7, 8, 9, 12, l 3, 17, l8, 21 and 23. All local, state or federal
permits necessary for the use of the Additional Area shall be obtained for the
Tenant by Landlord at Tenant's sole cost and expense and prior to the use herein
contemplated. Tenant shall have its public liability and other insurance
policies endorsed to include the Additional Area as a part of the Premises.
Any parking spaces displaced by the Additional Area shall be deducted from
Tenant's parking allotment under Article 22. Tenant shall install, at its sole
cost and expense, ballards or fencing with locks, to secure same, around this
Additional Area to protect its emergency generator and fuel storage tank.
. Landlord Wavier. Landlord waives any lien rights it may have concerning the
telecommunications equipment, cabling. Wiring and related equipment (the
"Network Operation Center Equipment") which are deemed Tenant's personal
property and not fixtures, and the Network Operation Center Equipment may be
removed at any time without Landlord's consent. Landlord acknowledges that
Tenant has entered into a financing arrangement including promissory notes and
financial and security agreements for the financing of the Network Operation
Center Equipment (the "Network Operation Center Equipment") with a third party
financing entity (and may in the future enter into additional financing
arrangements with other financing entities). In connection therewith, Landlord
(i) consents to the installation of the Network Operation Center Equipment; (ii)
disclaims any interest in the Network Operation Center Equipment, as fixtures or
otherwise; and (iii) agrees that the Telecom Equipment shall be exempt from
execution, foreclosure, sale, levy, attachment, or distress for any Rent (or
additional rent) due or to become due.
. Services of Landlord. Landlord shall furnish reasonably adequate services and
management for gardening and landscaping of the Property; removal of snow,
trash, rubbish, garbage and other refuse and such other matters as fall within
the definition of Annual Operating Costs as defined in Subparagraph 5(f) above.
Notwithstanding the above, Landlord shall not be liable for failure to furnish
or for suspension or delay in furnishing such services or management due to
breakdown, maintenance or repair work, strike, riot, civil commotion,
governmental action or any other cause beyond the reasonable control of
Landlord, or for the interruption of service for reasonable periods in
connection with construction work being performed on the Premises, Building or
Property, but Landlord shall use reasonable efforts not to affect Tenant's use
of the Premises, Building or Property as a result thereof. Interruption of
service(s) that continues beyond three (3) consecutive days shall entitle Tenant
to an abatement of rent.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have executed this Lease under seal on
the day and year first above written.
ATTEST: LANDLORD:
Dulles North Office Park II Corporation
By:
___________________________________ By:________________________________
(SEAL)
Name (Print):________________________
Title:_______________________________
ATTEST/WITNESS: TENANT:
___________________________________ By:________________________________
(SEAL)
Name (Print):________________________
Title:_______________________________
Tenant's Tax I.d. Number or Social Security
Number:_________-_________-_________
<PAGE>
EXHIBIT A
DEMISED PREMISES
<PAGE>
EXHIBIT B
RULES AND REGULATIONS
. No advertisement, or other notice, shall be inscribed, painted or affixed on
any part of the outside or inside of said Building, except of such order, size
and style, and at such places as shall be designated by Landlord. All signs will
be supplied for tenants by Landlord, the cost of the signs to be charged to and
paid for by tenants.
. The sidewalks and entry passages shall not be obstructed by tenants, or used
by them for any purpose other than for ingress and egress. The floors, and
skylights and windows that reflect or admit light into any place in said
Building, shall not be covered or obstructed by tenants without Landlord's
approval which shall not be unreasonably withheld or delayed. The water closets
and other water apparatus, shall not be used for any other purpose than those
for which they were constructed and no sweepings, rubbish, or other obstructing
substances shall be thrown therein. Any damage resulting to them, or to
associated systems, from misuse, shall be repaired by tenant who, or whose
clerks, agents, invitees, or servants shall cause it.
. No tenant shall do or permit to be done in said Premises, or bring or keep
anything therein, which shall in any way obstruct or interfere with the rights
of other tenants or in any way injure or annoy them. Tenants, their clerks and
servants, shall maintain order in the Building, shall not make or permit any
improper noise in the Building or interfere in any way with other tenants or
those having business with them. Nothing shall be thrown by Tenants, their
clerks or servants, out of the windows, doors or skylights of the Building. No
rooms shall be occupied or used as sleeping or lodging apartments at any time.
No part of the Building shall be used or in any way appropriated for gambling,
immoral or other unlawful practices, and no intoxicating liquor or liquors shall
be sold in said Building.
. It is understood and agreed that the Landlord shall not be
responsible to any tenant for any loss of property from rented premises,
however occurring.
. No animals (other than guide dogs) shall be allowed in the office,
halls, corridors, or elsewhere in the Building.
. All tenants and occupants shall observe strict care not to leave their doors
open when it rains or snows, and for any fault or carelessness in this respect
shall make good any injury sustained by other tenants, and to Landlord for
damage to paint, plastering or other parts of the Building resulting from such
default or carelessness. No alterations shall be made to any part of the
Building by putting up or changing any partitions, doors or windows, nor shall
there be any connection made to the electric wires or electric fixtures, or
plumbing lines nor shall there be any penetrations through the walls, floor or
roof without the consent in writing on each occasion of Landlord or its Agent
except as otherwise specifically provided in the Lease. All glass, locks and
trimmings in or upon the doors and windows of the Building shall be kept whole
and, when any part thereof shall be broken, the same shall be immediately
replaced or repaired and put in order under the direction and to the
satisfaction of Landlord, or its Agent, and shall be left whole and in good
repair. Tenant shall not injure, overload or deface the Building, the woodwork
or the walls of the Premises, nor carry on upon the Premises any noise some,
noxious, noisy, or offensive business.
. Fifty-five (55) keys will be provided upon initial occupancy; the charge for
additional keys shall be Five Dollars ($5.00) each. No additional locks or
latches shall be put upon any door without written consent of Landlord. Tenants,
at termination of their lease of the premises, shall return to Landlord, all
keys to doors in the Building.
. Landlord in all cases retains the power to prescribe the weight
and position of iron safes or other heavy articles.
. The tenant shall not (without the Landlord's prior written consent) install or
operate any electric heating device, steam engine, boiler, machinery or stove
upon the Premises, or carry on any mechanical business thereon subject to
Landlord's approval, or do any cooking thereon, or use or allow to be used upon
the Demised Premises oil, burning fluids, camphene, gasoline or kerosene for
heating, warming or lighting. No article deemed extra hazardous on account of
fire and no explosives shall be brought into said Premises. No offensive gases
or liquids will be permitted.
. If tenants desire blinds or window covering, other than those provided by
Landlord, if any, they must be of such shape, color and material as may be
prescribed by Landlord, and shall be erected with Landlord's prior consent and
at the expense of said tenants. No awnings shall be placed on said Building.
. Except for the storage of trash or rubbish in dumpsters provided by
Landlord, Tenant shall not permit storage of any kind outside of the Premises.
. Tenants and occupants shall observe and obey all parking and traffic
regulations as imposed by Landlord on the Property. Landlord in all cases
retains the power to designate "No Parking" zones, traffic right of ways, and
general parking area procedures.
. Tenant shall instruct all delivery companies that any vehicles making
deliveries to the Demised Premises shall use the truck access road provided for
such use and park only in designated loading areas.
. Unless otherwise agreed upon, in writing, Landlord will arrange
and contract for all heating, ventilating and air conditioning maintenance
and repairs.
. Except as otherwise specifically provided in the Lease, neither Tenant, nor
Tenant's agents, invitees, or contractors shall be permitted access to the roof
of the Building.
. The Landlord reserves the right to make such other rules and regulations as in
its judgement may from time to time be needed for the safety, care and
cleanliness of the Premises, and for the preservation of order therein Landlord
agrees that it will use diligent, commercially reasonable efforts to enforce the
rules and regulations in a non-discriminatory manner.
. Violation of these rules, or any amendments thereof or additions thereto,
which continues for twenty (20) days after written notice from Landlord to
Tenant, shall be sufficient cause for termination of this Lease at the option of
Landlord.
<PAGE>
EXHIBIT C
OUTLINE OF LANDLORD'S WORK:
"COLD DARK SHELL"
Landlord shall perform the work described below in accordance Landlord's Plans.
. FRAME
A structural frame of steel, concrete or masonry construction, or any
combination of these, with a floor design to carry and provide for 150
psf load. Clear height to the bottom of the roof joists shall be
approximately 13'-6" to 14'-6" except in Tenant's "Repository",
approximately 6,000 sf in the rear of the Premises, which shall be a
minimum of 16'-0".
. ROOF
A roof system, as designed by Landlord and in accordance with
applicable building codes.
. EXTERIOR WALLS
Exterior building walls shall be of non-combustible construction as
provided by Landlord. Landlord will provide a brick exterior in the
front of the building and a painted block (Standard CMU) exterior at
the rear of the building.
. FLOOR SYSTEM
Landlord will provide a 5" thick concrete floor slab.
. PLUMBING
Landlord will provide a 4" sanitary waste line to the building to be
shared by all tenants. Tenant shall be solely responsible for all costs
of obtaining required water meter(s).
. ELECTRICAL SERVICE
Landlord will provide 2,000 Amps to the building via a 480/277 volt,
3-phase, 4-wire electrical service, to be shared by all tenants.
Tenant shall apply to the local utility company to have electric
service established in its name and shall be solely responsible for all
costs of obtaining such service and for all costs of providing and
installing the required electric meter(s).
. FIRE PROTECTION
Landlord will provide a complete, automatic wet sprinkler system,
installed facing the underside of the roof deck. Landlord will provide
approximately one sprinkler head per 150 sf of Premises with sprinkler
heads turned up.
. STOREFRONT
Landlord will construct a complete storefront including, without
limitation, glass and glazing and door(s).
<PAGE>
EXHIBIT D
COMMENCEMENT AND ESTOPPEL
THIS COMMENCEMENT AND ESTOPPEL AGREEMENT is made and entered into this ____ day
of __, 19__, by and between ____________________ ("Tenant") and
_________________ _________________________ ("Landlord").
WHEREAS, Landlord and Tenant have heretofore entered into that certain Lease
Agreement dated ________ (the "Lease"), for certain space at
____________________ .
WHEREAS, paragraph ____ of the Lease provides for the execution of a
commencement agreement specifying the commencement date of the term of the
Lease;
NOW, THEREFORE, in consideration of the premises, and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, each party hereby warrants and represents to the other as follows:
. That Tenant is in full and complete possession of the Demised Premises,
such possession having been delivered by the Landlord and having been
accepted by the undersigned.
. That the Landlord's improvements, if any, and the space required to be
furnished by the terms of the Lease have been completed in all respects
and are open for the use of the Tenant, its customers, employees and
invitees.
. That all duties of an inducement nature required of the Landlord in
said Lease have been fulfilled.
. That said Lease is in full force and effect; that there is no existing
default on the part of the Landlord in the terms thereof; and that,
except as hereinafter set forth, said Lease has not been amended,
modified, supplemented or superseded: ____________________ [insert
"N/A" if not applicable].
. That no rents have been prepaid except as provided by said Lease; that
Tenant does not now have or hold any claim against Landlord which might
be set off or credited against future accruing rent.
. That Tenant has received no notice of a prior sale, transfer,
assignment, hypothecation or pledge of the said Lease or of the rents
secured therein, except to Landlord.
. That the Rent Commencement Date for the Lease is the ____ day of
________, 19__ and the Lease shall
expire at midnight on the ____ day of ________, 19__.
. Any agreement, obligation, or liability made, entered into or incurred
by or on behalf of Landlord binds only its property, and no
shareholder, trustee, officer, or agent of the Landlord assumes or
shall be held to any liability therefor.
IN WITNESS WHEREOF, the parties hereto do hereby execute this Agreement under
seal on the day and year first above written.
ATTEST: TENANT:
-----------------------------------
___________________________________ By:________________________________
Secretary Printed Name:_______________________
Its:________________________________
ATTEST: LANDLORD:
-----------------------------------
___________________________________ By:________________________________
Printed Name:______________________
Its:_______________________________
<PAGE>
EXHIBIT E
OPTION SPACE
EXHIBIT 11
e.spire COMMUNICATIONS, INC.
STATEMENT RE COMPUTATION OF PER SHARE EARNINGS (LOSS)
($ in thousands, except per share data)
Three months ended March 31,
1999 1998
------------------- --------------------
Net Loss $ (57,188) $(32,095)
Less: Preferred Stock Accretion 9,697 8,493
------------------- --------------------
Net Loss to Common Stockholders (66,885) (40,588)
Add: Convertible Preferred
Dividends Saved 9,697 8,493
Net Loss to Common Stockholders,
Dilutive Basis $ (57,188) $(32,095)
=================== ====================
AVERAGE SHARES OUTSTANDING
Weighted Average Number of
Common Shares Outstanding 48,687,218 37,709,282
Net additional shares assuming
stock options and warrants
exercised and proceeds used
to purchase treasury stock 1,271,505 11,938,445
------------------- --------------------
Weighted average number of common and
common equivalent shares outstanding 49,958,723 49,647,727
================== ====================
PER SHARE AMOUNTS
Basic earnings per share $ (1.37) $ (1.08)
================== ====================
Diluted earnings per share $ (1.14) $ (0.65)
================== ====================
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM
E.SPIRE COMMUNICATIONS, INC. FORM 10-Q FOR THE THREE MONTHS ENDED 3/31/99
AND IS QUALIFIED IN ITS ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> DEC-31-1999
<CASH> 247,467
<SECURITIES> 0
<RECEIVABLES> 85,623
<ALLOWANCES> (10,325)
<INVENTORY> (6,839)
<CURRENT-ASSETS> 329,604
<PP&E> 625,791
<DEPRECIATION> (94,266)
<TOTAL-ASSETS> 917,712
<CURRENT-LIABILITIES> 66,447
<BONDS> 736,277
0
250,724
<COMMON> 493
<OTHER-SE> (167,066)
<TOTAL-LIABILITY-AND-EQUITY> 917,712
<SALES> 0
<TOTAL-REVENUES> 58,073
<CGS> 37,237
<TOTAL-COSTS> 59,446
<OTHER-EXPENSES> (4,267)
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 22,845
<INCOME-PRETAX> (57,188)
<INCOME-TAX> 0
<INCOME-CONTINUING> (57,188)
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> (57,188)
<EPS-PRIMARY> (1.37)
<EPS-DILUTED> (1.37)
</TABLE>
EXHIBIT 99
e.spire COMMUNICATIONS, INC.
SUPPLEMENTAL FINANCIAL INFORMATION
YEAR TO DATE - MARCH 31, 1999
($'s in thousands)
<TABLE>
<CAPTION>
Networks Networks Networks Networks
Placed Placed Placed Placed
in Service in Service in Service in Service
Prior to 12/31/95 During 1996 During 1997 During 1998
----------------------------------------------------------------
<S> <C> <C> <C> <C>
Property, Plant & $ 173,295 $ 123,996 $ 166,774 $ 45,383
Equipment
Revenues $ 13,697 $ 8,725 $ 8,882 $ 1,550
EBITDA $ 5,109 $ 196 $ (1,405) $ (2,638)
EBIT $ 2,812 $ (1,647) $ (3,618) $ (3,318)
Network Statistics (cumulative)
Access Lines
Installed 43,114 24,045 58,479 9,496
Fiber Miles 45,119 40,085 47,482 24,528
Route Miles 759 460 410 152
Buildings
Connected 1,647 684 890 10
Voice Grade
Equivalents 654,527 387,949 306,699 1,803
</TABLE>
