OFFICE LEASE AGREEMENT
PROPERTY: Bay Colony Business Center
TENANT: Computer Outsourcing Services, Inc.
6620 Bay Circle Drive
Norcross, Georgia 30071
LANDLORD: Crocker Realty Trust, L.P.
433 Plaza Real
Suite 335
Boca Raton, FL 33432
SQUARE FOOTAGE: 52,174 R.S.F
LEASE TERM: EST. COMMENCEMENT DATE: July 4, 2000
EST. TERMINATION DATE: June 30, 2015
TABLE OF CONTENTS
1. Demise of Premises .................................................3
2. Term ...............................................................4
3. Rent ...............................................................5
4. Use of Premises; Compliance with Legal Requirements ................6
5. Taxes Payable by Tenant ............................................6
6. Insurance Coverage; Waiver of Subrogation ..........................7
7. Repairs and Maintenance by Landlord ................................7
8. Repairs and Maintenance by Tenant ..................................8
9. Utilities and Janitorial Services ..................................8
10. Alterations and Improvements .......................................8
11. Trade Fixtures and Other Personal Property..........................9
12. Signs and Advertising ..............................................9
13. Landlord's Right of Entry ..........................................9
14. Casualty Damage ....................................................9
15. Condemnation ......................................................10
16. Transfers by Tenant ...............................................10
17. Transfers by Landlord .............................................11
18. Subordination .....................................................11
19. Estoppel Certificates; Financial Statements .......................12
20. Events of Default by Tenant .......................................12
21. Landlord's Remedies ...............................................12
22. Landlord's Default ................................................13
23. Tenant's Remedies .................................................13
24. Indemnification ...................................................14
25. Protection Against Liens ..........................................14
26. Holding Over ......................................................14
27. Attorneys' Fees ...................................................15
28. Waiver ............................................................15
29. Leasing Commissions ...............................................15
30. Notices ...........................................................15
31. Miscellaneous .....................................................15
32. Special Provisions ................................................16
Exhibits
A Legal Description of Building Site
B Floor Plan of Premises
C Plan of Exterior Areas
D Minimum Rent
E Additional Rent Calculation
F Building Rules
G Special Provisions
H Form of Subordination, Non-Disturbance and Attornment Agreement
I Form of Guaranty
J Reports
K Roof Specifications
L Batteries to be Removed
OFFICE LEASE AGREEMENT
THIS LEASE AGREEMENT (the "Lease"), made and entered into as of , 2000
by and between CROCKER REALTY TRUST, L.P., a Delaware limited partnership, doing
business in Georgia as CROCKER REALTY, L.P. ("Landlord"), and COMPUTER
OUTSOURCING SERVICES, INC., a ____________________ corporation ("Tenant"),
WITNESSETH:
1. DEMISE OF PREMISES. Landlord hereby demises the Premises (as hereafter
described) to Tenant and covenants that Tenant shall peaceably and quietly hold
and enjoy the Premises throughout the term on and subject to all the provisions
and conditions of this Lease; and Tenant hereby accepts such demise of the
Premises from Landlord.
(a) The "Premises" consist of the space containing approximately 52,174
rentable square feet located in the building containing approximately 52,174
rentable square feet and known as Bay Colony - Building 6620 (the Building), on
a tract of land located at 6620 Bay Circle Drive, Norcross, GA 30071 and more
particularly described on Exhibit A attached hereto (together with the Building,
the "Property"). The Premises are shown highlighted on the Building plan
attached hereto as Exhibit B.
(b) As long as Tenant is entitled to possession of the Premises, Tenant
shall have the nonexclusive right to use any parking areas, loading areas,
driveways, sidewalks, and other common facilities of the Property as they may
exist from time to time, provided that Tenant shall have the exclusive right to
use and install on the roof of the Building and those portions of the Property
exterior to the Premises (the Exterior Areas) as shown on Exhibit C for
placement and operation of antenna, microwave dishes, HVAC equipment, generator
systems, telecommunications conduit and other equipment necessary for the
conduct of Tenant's business. subject to the prior written approval of Landlord
after submission of plans therefor to Landlord, and subject to the requirements
of applicable zoning and other land use ordinances, rules or regulations, and
any applicable restrictive covenants (each antenna and microwave dish, including
its associated parts, is referred to hereinafter as an item of such equipment;
all such equipment is collectively referred to hereinafter as
"Telecommunications Equipment", which may include the equipment of fiber and
other telecommunications service providers that are providing services to Tenant
or its customers, and such ancillary equipment and Tenant's HVAC equipment and
generator systems are hereinafter collectively referred to as "Other Equipment")
as may be required for the proper conduct of Tenant's business consistent with
the permitted use of the Premises under Paragraph 4 below. Except as expressly
provided herein, Landlord shall grant to no other party the right to use the
roof of the Building for any purpose. Tenant's rights hereunder shall be subject
to the limitations described in (1) and (2) below. Without limiting the
foregoing, Tenant shall be entitled to use the roof and Exterior Areas for the
storage and use of equipment to be used pursuant to Co-Location agreements (as
defined in Paragraph 16(d) below).
(1) Interference. Tenant shall operate the Telecommunications
Equipment in a manner that will not cause interference with any
equipment operated by other tenants or licensees of the Property,
the installation of which preceded the installation of the
Telecommunications Equipment of Tenant which interferes with it.
All operations of Telecommunications Equipment by Tenant shall be
in compliance with all Federal Communications Commission
requirements.
(2) Rules:
--- -----
(A) No item of Telecommunications Equipment shall be larger
than three (3) meters in any dimension, nor shall any item of Telecommunications
Equipment or Other Equipment, when installed exceed a height of ten (10) feet
above the surface of the roof of the Building; provided, however, one (1)
antenna installed on the roof of the Building shall be permitted to reach a
height of up to fifteen (15) feet above the surface of the roof of the Building;
(B) Each item of Telecommunications Equipment and Other
Equipment must be installed in a good and workmanlike manner and in accordance
with all applicable laws, rules and regulations and restrictive covenants of
record, and in accordance with the plans and specifications approved in advance
by Landlord;
(C) Tenant shall provide Landlord with reasonable advance
notice of any work that will be performed on the roof of the Building and afford
Landlord the opportunity to be present for all such work; provided that only
subsequent notice within a reasonable time shall be required in the case of an
emergency that presents immediate danger to Tenant, or its employees, invitees
or personal property;
(D) Tenant shall keep and maintain liability insurance and
property damage insurance with respect to all Telecommunications Equipment and
Other Equipment that names Landlord as an additional insured and that otherwise
complies with the other terms of this Lease;
(E) Tenant shall perform all work with respect to
Telecommunications Equipment and Other Equipment in a lien free manner and shall
bond off or discharge any other liens or encumbrances that arise out of or are
related to any of the work performed on such Telecommunications Equipment or
Other Equipment within thirty (30) days after the filing thereof;
(F) Tenant shall be responsible for and shall pay for and
repair any damage to the Premises, the Building or the Property that arises out
of the installation, maintenance, replacement or repair of any
Telecommunications Equipment or Other Equipment. Tenant will have the right to
penetrate the roof; provided that (i) Tenant shall obtain the prior written
approval of the Landlord for such penetration and for the plans for the
installation of the Telecommunications Equipment or Other Equipment, (ii) such
roof penetration shall not void or impair any roof warranty then in place; (iii)
Tenant shall be deemed to have assumed all liability that would otherwise be the
responsibility of Landlord for repairs and replacements of any portion of the
roof affected by such penetration; provided that the Landlord shall also assign
to the Tenant or otherwise cause the Tenant to receive the benefit, if any, of
any applicable warranty; (iv) at the expiration or termination of the Term,
Tenant shall be responsible for, and shall pay for any necessary repairs
resulting from the removal of such Telecommunications Equipment or Other
Equipment and the penetration of the roof associated therewith, and (v) if
requested by Landlord, Tenant shall cause such work to be done (A) by
contractors approved by Landlord, which approval shall not be unreasonably
withheld by Landlord, or (B) by Landlord, with the costs and expenses incurred
by Landlord in connection therewith (excluding any costs relating to defects
with respect to, or damages resulting from, such installation) to be reimbursed
by Tenant upon demand in one lump sum (but to be otherwise treated as additional
rental hereunder).
(G) Tenant hereby indemnifies Landlord against and agrees to
hold Landlord harmless from and against any and all losses, costs, expenses,
judgments, liabilities, suits and the like (including, without limitation court
costs and attorneys' fees) arising out of or related to the use, operation,
installation, repair, maintenance and replacement of all Telecommunications
Equipment and Other Equipment;
(H) Tenant and Landlord shall cooperate with each other to
modulate the frequencies from the Telecommunications Equipment so that they are
compatible with any telecommunications equipment subsequently installed on the
Property so long as such can be accomplished without material out-of-pocket cost
to Tenant and without material interference with Tenant's permitted use of the
Premises.
(I) No Telecommunications Equipment shall be used by Tenant
(or the applicable telecommunications service providers or customers, as the
case may be) for any purpose other than the receipt and transmission of
information directly related to the conduct of business within the Premises or
directly related to the business of customers and/or affiliates of the Tenant;
Tenant shall not rent, lease or otherwise demise space, time or other components
of any such Telecommunications Equipment to third party consumers of such
services other than its own affiliates and customers ; and
(J) All Telecommunications Equipment and Other Equipment
(other than the antenna described in the second clause of subparagraph 2(A)
above) shall be screened so as not to be visible from the ground within the
Property.
(c) Tenant's Proportionate Share (herein so called) is stipulated to be
One hundred percent ( 100 %), for Tenant's Proportionate Share when the
calculation is based upon the current rentable area of the Building and/or the
Exterior Areas, and Twenty-eight and 56/100 percent ( 28.56 %) for Tenant's
Proportionate Share when the calculation is based upon the current total
rentable building area of the entire Property containing approximately 182,684
rentable square feet. If the rentable area of the Building or Property changes,
Tenant's Proportionate Share shall be adjusted accordingly (based on an
architect's certificate or other reasonable substantiation of the Building's or
Property's rentable area) by an amendment to this Lease, which Landlord and
Tenant agree to execute.
2. TERM. The term of this Lease shall begin on the Commencement Date estimated
to be the 4th day of July , 2000 and end on the last day of the one hundred
eightieth ( 180th ) full calendar month thereafter estimated to be the 30th day
of June , 2015 . Thus, unless the Commencement Date falls on the first day of a
calendar month, the term will also include the initial partial calendar month
immediately following the Commencement Date. The "Commencement Date" shall be
the later of (a) the date of substantial completion of any Tenant Improvements
to be constructed by Landlord pursuant to the Special Provision attached hereto
as Exhibit G, or (b) July 4, 2000. On the Commencement Date, Tenant shall
execute a written agreement to confirm the actual calendar date on which the
Commencement Date occurs. Tenant shall take possession of the Premises on the
Commencement Date and surrender the Premises to Landlord at the expiration of
the term or earlier termination of this Lease free of waste and in as good a
condition as on the Commencement Date except for reasonable wear and tear and
repairs that are Landlord's responsibility under this Lease. By taking
possession of the Premises, Tenant shall have agreed that the Premises are
suitable for their intended purpose and that the Premises and all other parts of
the Property are in good and satisfactory condition, free of material defects.
3. RENT. Throughout the term of this Lease, Tenant shall pay rent to
Landlord in accordance with the following provisions:
(a) Tenant shall pay minimum annual rent (the "Minimum Rent") in
monthly installments in advance on or before the first day of each calendar
month as reflected in Exhibit D hereto.
(b) Additional Rent (herein so called) shall be calculated as provided
in Exhibit E hereto; provided, however, that during the first year of the Lease,
the portions of Additional Rent attributed to taxes, insurance, and maintenance
costs shall not collectively exceed $2.10 per rentable square foot. For each
calendar year after the year in which the Commencement Date occurs, Landlord
shall furnish Tenant a written estimate of Additional Rent for the applicable
calendar year. Estimates of Additional Rent shall be made by Landlord on a
reasonable basis determined by Landlord. Tenant shall pay estimated Additional
Rent in advance on or before the first day of each month in monthly installments
equal to one-twelfth (1/12) of the estimated Additional Rent for the applicable
calendar year. The estimated monthly Additional Rent includes, but shall not be
limited to, and shall be subject to adjustment as provided for in Exhibit E
herein, costs and expenses for operating and maintaining the common areas,
facilities, and equipment for the Property, costs and expenses for common area
water and sewer charges, costs and expenses for common area electricity charges.
Pending receipt of Landlord's written estimate of Additional Rent for any
calendar year, monthly installments of estimated Additional Rent shall continue
to be paid in the same amount as in the prior calendar year. By April 30 of each
calendar year or as soon as possible thereafter, Landlord shall deliver to
Tenant a written statement reflecting any difference between estimated
Additional Rent paid and actual Additional Rent accrued for the prior calendar
year (or in the case of any partial calendar year in which the term of this
Lease begins or ends, a prorated portion of such Additional Rent based on actual
days elapsed during the portion of term occurring in that calendar year). Tenant
shall pay Landlord the total amount of any balance of Additional Rent due shown
on such annual statement within thirty (30) days after receipt of the statement.
Landlord shall refund any overpayment of Additional Rent by Tenant shown on such
annual statement within thirty (30) days after delivery of the statement, or
Landlord, at its option, may credit the amount of any such overpayment against
the installment(s) of Minimum Rent and Additional Rent due for the remainder of
the then current calendar year.
(c) The installments of Minimum Rent and Additional Rent for any
initial partial calendar month shall be prorated based on actual days elapsed,
and shall be paid in advance on the Commencement Date.
(d) Except as expressly provided to the contrary in this Lease,
installments of Minimum Rent and Additional Rent shall be payable without
notice, demand, reduction, setoff, or other defense. Installments of Minimum
Rent and Additional Rent and payments of other sums owing to Landlord pursuant
to this Lease shall be made to Landlord at 433 Plaza Real, Boca Raton, Florida
33432 , or at whatever other account or address that Landlord may designate from
time to time by written notice to Tenant.
(e) If any installment of Minimum Rent or Additional Rent, or any other
sum due and payable pursuant to this Lease, remains unpaid for more than ten
(10) days after the date due, Tenant shall pay Landlord a late payment charge
equal to the greater of (i) Fifty and No/100 Dollars ($50.00), or (ii) five
percent (5%) of the unpaid installment or other payment. The late payment charge
is intended to compensate Landlord for administrative expenses associated with
responding to late payment, and shall not be considered liquidated damages or
interest. All rent and other sums of whatever nature owed by Tenant to Landlord
under this Lease that remain unpaid for more than ten (10) days shall bear
interest from the date due until paid at the lesser of (i) five percent (5%) in
excess of the prime or general reference rate of interest of NationsBank of
North Carolina, N.A. (or its successors) in effect from time to time, or (ii)
the maximum interest rate per annum allowed by law.
(f) Tenant will deliver by May 26, 2000 an Irrevocable Letter of Credit
(the L/C) in the amount of Six Hundred Twenty Six Thousand Eighty-eight and
00/100 dollars ($ 626,088.00 ) (the "Deposit") as security for Tenant's
performance of all obligations hereunder. The form of the letter shall be
subject to the Landlord's approval. In the Event of Default by Tenant, Landlord
may, at its option, draw upon the L/C on account of any rent or other sums owing
by Tenant, and thereupon Tenant shall immediately increase the L/C in an amount
so applied in order that Landlord will always have the full Deposit on hand
throughout the term of this Lease. The Deposit shall never constitute liquidated
damages in the Event of Default by Tenant. Upon full payment and performance of
this Lease by Tenant (including without limitation, final payment of any
Additional Rent owed by Tenant), Landlord shall return to Tenant the L/C after
drawing any rental or other sums owed by Tenant pursuant to this Lease. From and
after the expiration of the third year of the Lease, Tenant shall have the right
to replace the L/C annually with a letter of credit reduced by 20% (based on the
original amount of the L/C) but otherwise conforming in all respects to the
original L/C, provided that at the end of the fifth year of the Lease, Tenant
shall provide a letter of credit or cash security deposit in the amount of three
(3) months' average Minimum Rent and Additional Rent, for the remainder of the
Term.
4. USE OF PREMISES; Compliance with Legal Requirements. Tenant shall use the
Premises only for general office or warehouse purposes, which may include the
installation, operation, maintenance and replacement of communications and
switch equipment and facilities (including (a) co-location of equipment owned by
Business Affiliates (as defined in Section 16(d) below) and (b) such rights of
Business Affiliates to use the Premises as may be set forth in Section 16(d)
below) in connection with Tenant's Internet data center and communications
business, and for no other purposes without the Landlord's prior written
consent, which shall not be unreasonably withheld. Tenant shall not commit or
allow waste to be committed in the Premises or elsewhere on the Property, and
shall not do or allow to be done in the Premises or elsewhere on the Property
anything that shall constitute a nuisance or detract in any way from the
reputation of the Property as a first-class real estate development. Tenant
shall allow no noxious or offensive odors, fumes, gases, smoke, dust, steam or
vapors, or any loud or disturbing noise or vibrations to originate in or be
emitted from the Premises. Tenant shall comply with all laws, ordinances, and
regulations of any governmental authority relating to Tenant's use or occupancy
of the Premises, with the requirements of insurance underwriters or rating
bureaus applicable to the Property, and with the following requirements:
(a) Tenant may, after securing any necessary permits, use Hazardous
Materials at the Premises and Exterior Areas only of such types and in such
quantities or concentrations as is customary for businesses similar in nature
and scope to that of Tenant's business (e.g., generally available office
equipment and supplies that contain small amounts of Hazardous Materials, such
as copy machine toner and cleaning supplies, and diesel fuel and batteries for
generator systems), so long as they are properly used and stored within the
Premises, properly disposed of by Tenant at a location other than the Property,
and otherwise, used, handled, stored, transported and disposed of in accordance
with applicable law. Except as permitted in the preceding sentence, no use,
generation, storage, treatment, transportation, or disposal of any
Hazardous Material shall occur or be permitted to occur in connection with
Tenant's use and occupancy of the Premises or any other portion of the Property.
"Hazardous Material" shall mean any toxic or hazardous waste, material, or
substance or any other substance that is prohibited, limited, or regulated as a
health or environmental hazard by any governmental or quasi-governmental
authority, or that even if not so regulated, could or does pose a hazard to the
environment or to the health and safety of the occupants of the Building or
others.
(b) No portion of the Premises or the Property shall be used or
occupied for anything that is extrahazardous on account of fire or other risks,
that causes an increase in the premiums payable by Landlord for any of its
insurance with respect to the Property, or that causes any underwriter to deny
insurance coverage to Landlord.
(c) Tenant shall comply with all requirements of the Americans with
Disabilities Act and implementing regulations applicable to its use and
occupancy of the Premises other than requirements relating solely to the
physical structure of (i) the Tenant Improvements, (ii) the roof, foundation,
and exterior walls of the Building, and (iii) the common use areas of the
Property.
(d) Tenant has previously been furnished with a copy of any applicable
restrictive covenants relating to the Building, and Tenant shall abide by those
restrictions in connection with its use and occupancy of the Premises.
(e) Landlord shall have the right to prescribe and modify reasonable
rules for the use of the Property and leased premises within the Building. A
copy of Landlord's current Building rules is attached hereto as Exhibit F. In
the event of any conflict with the Building rules, the provisions in the main
body of this Lease control.
(f) Tenant shall ensure that its agents, employees, and contractors
comply with this Paragraph, and shall use reasonable efforts to ensure that its
invitees and customers comply with this Paragraph.
Subject to the last sentence of this paragraph, Landlord represents and warrants
to Tenant that the Premises and the Building are, to the best of its actual
knowledge, free of Hazardous Materials as of the date of this Lease; provided,
however, such representation and warranty shall be subject to any matters
disclosed in those reports described on Exhibit J attached hereto which Landlord
has delivered to Tenant (the Reports). Tenant hereby acknowledges that
underground storage tanks (the Tanks) are located on the Property near the
Building (as more particularly described in Document 1 of Exhibit J) and
Landlord has made no representation or warranty concerning the maintenance of,
or the presence or absence of Hazardous Materials in and around, the Tanks. As
part of Landlord's termination agreement with its prior tenant (Federated),
Landlord shall remove, or cause to be removed, the Tanks on or before July 1,
2000 in accordance with applicable law. Notwithstanding any contrary provision
contained herein, Landlord hereby represents that, to its knowledge, the Reports
constitute all of the environmental reports concerning the Property located in
Landlord's files.
5. TAXES PAYABLE BY TENANT. Tenant shall pay any documentary stamp tax, sales or
use tax, excise tax, or any other tax, assessment, or charge (other than any
income, franchise, or similar tax imposed directly on Landlord or Landlord's net
income from the Property) required to be paid on account of (a) the execution of
this Lease, (b) the use or occupancy of the Premises by Tenant, (c) the rent or
other payments due hereunder, or (d) Tenant's trade fixtures, equipment,
machinery, inventory, merchandise or other personal property located on the
Premises and owned by or in the custody of Tenant. All such taxes, assessments,
and charges shall be paid promptly as they become due prior to delinquency.
Tenant shall provide Landlord with copies of paid receipts for such taxes,
assessments, or charges promptly after payment of same. Tenant shall also pay on
written demand from Landlord any increase in ad valorem taxes or assessments on
the Property as a result of alterations, additions, or improvements made by or
on behalf of Tenant other than the initial Tenant Improvements.
6. INSURANCE COVERAGE; Waiver of Subrogation.
(a) Landlord shall maintain property and casualty insurance on the
Building, with extended coverage or such other additional coverage as Landlord
shall elect, in an amount of not less than the full replacement cost of the
Building; provided, however, if the premium for any insurance carried by
Landlord with respect to the Property increases as the result of Tenant's use or
occupancy or as the result of any act or omission of Tenant or its agents,
employees, or contractors, Tenant shall pay Landlord the amount of any such
increase on written demand. Payment of such increased premiums shall not excuse
any noncompliance with this Lease by Tenant that may have caused the increased
premiums.
(b) Tenant shall maintain and pay for property and casualty insurance
with extended coverage on all trade fixtures, equipment, machinery, merchandise,
or other personal property belonging to or in the custody of Tenant in the
Premises or otherwise on the Property. Tenant shall maintain and pay for
commercial general liability insurance (occurrence coverage) in the amount of
not less than $2,000,000.00, with a company licensed to do business in the state
in which the Property is located and reasonably acceptable to Landlord, naming
Landlord as an additional insured, providing contractual liability coverage, and
containing an undertaking by the insurer not to cancel or change coverage
materially without first giving thirty (30) days' written notice to Landlord.
Tenant shall furnish Landlord certificates of insurance evidencing the required
commercial general liability insurance coverage prior to the Commencement Date
and thereafter prior to each policy renewal date. Tenant shall be permitted to
satisfy the foregoing insurance requirements through the use of blanket policies
which otherwise comply with the terms hereof.
(c) Each of Landlord and Tenant hereby waives all claims or other
rights of recovery against the other and its agents, employees, and contractors
for any loss or damage to the Premises or other portions of the Property, or to
any personal property or fixtures thereon, by reason of fire or other insurable
risk of loss (whether or not actually insured), regardless of cause or origin,
including negligence, gross negligence, or misconduct of the other party or its
agents, employees, or contractors, and covenants that no insurer shall hold any
right of subrogation against such other party. Landlord and Tenant shall each
advise its insurers of the foregoing waiver and such waiver shall be a part of
the respective policies of property and casualty insurance maintained by
Landlord and Tenant.
7. REPAIRS AND MAINTENANCE BY LANDLORD. At its own cost (and not as a cost
included in the calculation of Additional Rent), Landlord shall repair only the
roof, exterior walls, structural members (including foundation and subflooring)
of the Premises, and central plumbing and electrical systems serving the entire
Building up to the point of entry into the Premises. If Tenant gives Landlord
written notice of the need for repairs, Landlord shall begin any repair work
required under the terms of this Lease within thirty (30) days after its receipt
of such notice, and shall diligently pursue such required repairs to completion.
If repairs are required to be made by Landlord as the result of any act or
omission of Tenant or its agents, employees, or contractors, then any cost of
such repairs in excess of insurance proceeds actually received by Landlord shall
be paid by Tenant to Landlord on written demand, and Landlord shall not be
obligated to begin or continue repair work until funds for such purposes are
received from insurance proceeds or from Tenant. As used in this Paragraph,
"repair" includes the replacement of materials or equipment.
As items whose cost is included in the calculation of Additional Rent, Landlord
shall provide for:
Routine repairs, service, management, operations and maintenance of the common
areas, facilities, and equipment of the Property, including landscaping,
irrigation systems, parking and loading areas, driveways, sidewalks, exterior
lighting, common signs, garbage collection and disposal, common water, sewer,
plumbing, gas, electric facilities and equipment, and other areas, facilities,
or equipment shared by the various tenants of the Property. If and to the extent
Landlord chooses, Landlord may furnish common area security services and
equipment. Landlord has no duty to provide security for persons or property, and
no duty to do so shall be deemed to have been assumed by Landlord's furnishing
of security services. Tenant waives and releases all claims against Landlord and
its agents, employees, and contractors to the extent based on any wrongful,
negligent, or other failure to furnish security services or equipment or on any
wrongful, negligent, or other act or omission in connection with any security
services or equipment furnished.
Tenant shall not be deemed to have been evicted as the result of, nor shall
Landlord be liable for any loss or damage to the property of Tenant located in
the Premises or for any loss of business or profits of Tenant or other damages
of any kind arising from (i) any failure of Landlord to provide maintenance,
repair, or other services to be furnished by Landlord pursuant to this Paragraph
as the result of circumstances outside of Landlord's reasonable control, (ii)
any interruption or unavailability of utilities or any stoppage, leaking,
bursting, or other defect or failure in the utility lines, pipes, wires, and
other facilities serving the Premises as the result of circumstances outside of
Landlord's reasonable control, or (iii) any repairs, maintenance, alterations,
or improvements to any portion of the Property made in connection with
correcting any of the foregoing circumstances or providing the maintenance,
repair, or other services to be furnished by Landlord pursuant to this
Paragraph, provided that in connection with any such repairs or corrections
Landlord shall use commercially reasonable efforts to prevent material
interference to Tenant and Tenant's business. If as the result of any of the
foregoing, the Premises remain untenantable for more than ten (10) days after
written notice from Tenant to Landlord specifying the circumstances giving rise
to such untenantability, then as Tenant's sole and exclusive remedy, Minimum
Rent and Additional Rent shall abate for so long thereafter as the Premises
remain untenantable in Landlord's judgement. Such abatement of Minimum Rent and
Additional Rent shall not extend the term of this Lease.
In exercising its rights under this Paragraph, Landlord shall use commercially
reasonable efforts to not materially interfere with or disrupt the normal
operation of Tenant's business. Landlord, and any third parties entering the
Premises at Landlord's invitation or request shall at all times strictly observe
Tenant's reasonable rules relating to security on the Premises. Except in the
event of an emergency, Tenant shall have the right, in its sole discretion, to
designate a representative to accompany Landlord, or any third parties, while
they are on the Premises.
8. REPAIRS AND MAINTENANCE BY TENANT. Tenant shall maintain and keep in good
repair all parts and components of the Premises not expressly required by this
Lease to be maintained or repaired by Landlord, including without limitation,
plumbing, wiring, electrical systems, HVAC systems and equipment (except for
routine maintenance provided by Landlord), glass and plate glass, and equipment
or machinery constituting fixtures. All maintenance and repair work performed by
Tenant shall be carried out in a good an workmanlike manner in compliance with
applicable building codes and other laws. As used in this Paragraph, "repair"
includes the replacement of materials or equipment.
Notwithstanding anything contained herein to the contrary, Tenant shall, at its
sole cost and expense, maintain and keep the heating, ventilating and air
conditioning systems, apparatus and equipment (the HVAC Systems) in good
condition and repair during the entire term of this Lease. Within thirty (30)
days of the date Tenant takes possession of the Premises, Tenant shall enter
into a maintenance contract, requiring at least quarterly service with a
reputable and licensed full service HVAC maintenance firm approved by Landlord,
for the routine maintenance and servicing of the HVAC Systems. Tenant shall
furnish Landlord with a copy of the then current maintenance contract. Landlord
shall have the specific right to inspect, or have inspected, the HVAC Systems,
and if in Landlord's reasonable judgement such HVAC Systems are not being
properly maintained, Landlord shall have the right to give notice to Tenant of
such, and Landlord may, at the expense of Tenant, undertake to make such repairs
as are necessary to put the HVAC Systems in good condition.
Notwithstanding anything contained herein to the contrary, Tenant shall, at its
sole cost and expense, provide for the routine control and extermination, as
applicable, of insects, pests, and other vermin in the premises (Pest Control).
If Landlord, in its reasonable judgement, determines that Tenant's Pest Control
is insufficient, Landlord may, at the expense of Tenant, undertake to contract
for such services as Landlord deems necessary to correct the situation.
9. UTILITIES AND JANITORIAL SERVICES. Tenant shall contract directly with public
or private utility companies to obtain, and shall pay directly any required
deposits, installation and hook-up costs, and consumption or use charges for (a)
electricity, gas, and telephone or other telecommunications services, (b) water
and sewer service if separately metered for the Premises, (c) unless provided by
Landlord as part of the common facilities of the Property, trash and waste
collection and disposal service, and (d) waste collection and disposal services
for waste in exceptional quantities or of a type requiring special handling or
that is otherwise not suitable for collection and disposal through common
facilities of the Property, if any. Tenant shall provide and pay for janitorial
services of a type and frequency to keep the Premises in a clean, safe,
healthful, and presentable condition.
10. ALTERATIONS AND IMPROVEMENTS. Tenant shall make no alterations, additions,
or improvements to the Premises or the Property that affect the structural
elements of the Building or Building systems or exterior without the prior
written consent of Landlord in each instance, which consent shall not be
unreasonably withheld. Tenant shall comply with all reasonable requirements of
Landlord relating to approval of plans and specifications, compliance with
building codes and other laws, protection of the integrity, condition, and
proper functioning of the roof, walls, foundations, and other structural
elements of the Building and of the Building's mechanical, electrical, and
plumbing systems and equipment, employment and bonding of contractors,
insurance, aesthetic considerations, and other relevant matters as determined by
Landlord. All alterations, additions or improvements, including without
limitation all partitions, walls, railings, carpeting, floor and wall coverings,
and other fixtures (excluding Tenant's trade fixtures) made by, for, or at the
direction of Tenant shall become the property of Landlord when made, and shall
remain upon the Premises at the expiration or earlier termination of this Lease.
Subject to the last paragraph of Paragraph 7, Landlord reserves the right to
make structural and nonstructural alterations, additions, and improvements to
the Property, to re-stripe parking areas and otherwise control parking and
traffic movement on the Property, and to change the name or street address of
the Property.
11. TRADE FIXTURES AND OTHER PERSONAL PROPERTY. Any trade fixtures installed in
the Premises at Tenant's expense shall remain Tenant's personal property, and
Tenant shall have the right at any time during the term of this Lease to remove
such trade fixtures (provided that any damage to the Building or Premises caused
by such removal shall immediately be repaired by Tenant). On or before the
expiration of the term or earlier termination of this Lease, Tenant shall remove
all trade fixtures and personal property from the Premises, repair any damage to
the Building or Premises caused by removal of its trade fixtures and other
personal property, and leave the Premises in a clean condition free of waste,
refuse, or debris. If Tenant fails to do so, Landlord may retain, store, or
dispose of such trade fixtures and other personal property however Landlord
chooses without liability of any kind to Tenant, repair any damage to the
Building or Premises caused by removal of such trade fixtures and other personal
property, and clean the Premises and properly dispose of all such waste, refuse,
or debris; and all costs and expenses incurred by Landlord in connection with
the foregoing shall be payable by Tenant to Landlord on written demand. The
following property shall be considered part of the permanent improvements to the
Building owned by Landlord, not trade fixtures of Tenant, and shall not be
removed from the Premises by Tenant under any circumstances: (a) HVAC systems,
fixtures, or equipment (unless the same is installed by Tenant, in which event
Tenant may remove same in accordance with the first sentence of this Paragraph
11); (b) lighting fixtures or equipment; (c) dock levelers; (d) carpeting, other
permanent floor coverings, or raised flooring; (e) paneling or other wall
coverings; (f) plumbing fixtures and equipment; and (g) permanent shelving.
Notwithstanding any contrary provision herein, Landlord may designate, in
connection with its review and approval of Tenant's plans, such equipment and/or
improvements (including without limitation those related to HVAC) that Landlord
desires for Tenant to remove upon the expiration of the term or earlier
termination of this Lease, which equipment and improvements shall be treated as
trade fixtures for purposes of the second and third sentences of this Paragraph
11.
12. SIGNS AND ADVERTISING. Tenant may, at its sole cost and expense, install
exterior tenant identification sign on the Building. The identification signage
will be of a design acceptable to Landlord in its sole discretion (taking into
account signage standards applicable to the Property), and installation will be
in a manner prescribed by Landlord. Landlord shall have the right to remove any
unapproved signage and repair any resulting damage to the Building or Premises
at the cost and expense of Tenant payable on written demand. Tenant shall not
use or allow the use in or about the Premises or elsewhere on the Property of
any sound production device, mechanical or moving display device, bright lights,
or other advertising media that would be visible or audible from the exterior of
the Building.
13. LANDLORD'S RIGHT OF ENTRY. Landlord and persons authorized by Landlord may
enter the Premises at any time without notice to Tenant in the event of
emergency involving possible injury to property or persons in or around the
Premises or the Building. Subject to the last paragraph of Paragraph 7, Landlord
and persons authorized by Landlord shall have the right to enter the Premises at
all reasonable times and upon reasonable notice for the purposes of making
repairs or connections, making alterations, additions, or improvements to the
Building, installing utilities, providing services to the Premises or for other
tenants, making inspections, or showing the Premises to prospective purchasers
or lenders of the Property. During the last six (6) months of the initial or any
extended term, Landlord and persons authorized by Landlord shall have the right
at reasonable times and upon reasonable notice to show the Premises to
prospective tenants.
14. CASUALTY DAMAGE. If any part of the Premises is damaged by fire or other
casualty, Tenant shall give prompt notice to Landlord. If damage by fire or
other casualty renders any substantial part of the Premises untenantable and the
repair time to restore the Premises to a tenantable condition will exceed one
hundred twenty (120) days (or will exceed thirty (30) days in the case of damage
occurring during the last twelve (12) months of the term), or if any part of the
Property is so damaged that in Landlord's judgment, substantial alteration or
reconstruction is required (whether or not the Premises have been damaged by the
casualty), or if any mortgagee of the Property requires application of the
insurance proceeds to the reduction of the mortgage debt, or if any material
uninsured loss occurs, Landlord may, at its option, terminate this Lease by so
notifying Tenant in writing within sixty (60) days after the date of the
casualty; provided, however, if Landlord desires to terminate this Lease as a
result of an uninsured loss or mortgagee's application of insurance proceeds,
Landlord shall notify Tenant of the amount of insurance proceeds available for
restoration (if Landlord knows the same) and Tenant may agree to pay to
Landlord, as rental hereunder, the difference between such amount and the actual
costs of restoration, in which case the Lease shall not be terminated pursuant
to this sentence. If the damage by fire or other casualty renders any
substantial part of the Premises untenantable and if the repair time to restore
the Premises to a tenantable condition will exceed one hundred twenty (120) days
(or will exceed thirty (30) days in the case of damage occurring during the last
twelve (12) months of the term), Tenant may elect to terminate this Lease by so
notifying Landlord in writing within sixty (60) days after the date of the
casualty. If the Lease is not so terminated by Landlord or Tenant, Landlord
shall promptly begin and diligently pursue the work of restoring the Premises
(including the initial Tenant Improvements) to substantially their former
condition as soon as reasonably possible. Landlord shall not, however, be
required to restore any alterations, additions, or improvements other than the
initial Tenant Improvements or to spend any amount in excess of the insurance
proceeds actually received by Landlord as a result of the casualty. Landlord
shall allow Tenant an equitable abatement of Minimum Rent and Additional Rent
during the time and to the extent the Premises are untenantable as the result of
fire or other casualty, but such abatement shall not extend the term.
15. CONDEMNATION. If all or substantially all of the Property is condemned or is
sold in lieu of condemnation, then this Lease shall terminate on the date the
condemning authority takes possession. If less than all of the Property is so
condemned or sold (whether or not the Premises are affected) and in Landlord's
judgment, the Property cannot be restored to an economically viable condition,
or if any mortgagee of the Property requires application of condemnation
proceeds to the reduction of the mortgage debt, Landlord may terminate this
Lease by written notice to Tenant effective on the date the condemning authority
takes possession. If the condemnation will render any substantial part of the
Premises untenantable, Tenant may terminate this Lease by written notice to
Landlord effective on the date the condemning authority takes possession of the
affected part of the Premises. If this Lease is not so terminated by Landlord or
Tenant, Landlord shall, to the extent feasible, restore the Premises (including
the initial Tenant Improvements) to substantially their former condition.
Landlord shall not, however, be required to restore any alterations, additions,
or improvements other than the initial Tenant Improvements or to spend any
amount in excess of the condemnation proceeds actually received by Landlord.
Landlord shall allow Tenant an equitable abatement of Minimum Rent and
Additional Rent during the time and to the extent the Premises are untenantable
as the result of any condemnation, but such abatement shall not extend the term.
All condemnation awards and proceeds shall belong exclusively to Landlord, and
Tenant shall not be entitled to, and expressly waives and assigns to Landlord,
all claims for any compensation for condemnation; provided, however, if Tenant
is permitted by applicable law to maintain a separate action that will not
reduce condemnation awards or proceeds to Landlord, Tenant shall be permitted to
pursue such separate action, but only for loss of business, moving expenses, and
Tenant's trade fixtures.
16 TRANSFERS BY TENANT.
(a) Without the prior written consent of Landlord in each instance,
which consent will not be unreasonably withheld, Tenant shall not do any of the
following (as used in this Paragraph, a "Transfer"): (i) assign this Lease or
any estate or interest therein, whether absolutely or collaterally as security
for any obligation; (ii) sublease any part of the Premises; (iii) permit any
assignment of this Lease or any estate or interest therein by operation of law;
(iv) subject to Paragraph 16(d) below, grant any license, concession, or other
right of occupancy for any part of the Premises; or (v) subject to Paragraph
16(d) below, permit the use of the Premises by any person other than Tenant and
its agents and employees. Permissible reasons for Landlord's withholding consent
include (but are not limited to) the following: (vi) the proposed use of the
Premises is not permitted by this Lease, would materially negatively affect
insurance or environmental risks (unless Tenant or the transferee nullifies such
risks), or would otherwise materially negatively impact the Property; (vii) the
creditworthiness of the proposed transferee is unacceptable to Landlord in
Landlord's good faith business judgment; (viii) the proposed use or occupancy
would require alterations or additions to the Premises or other portions of the
Property to comply with applicable laws, ordinances, and regulations (unless
Tenant or the transferee in advance funds such alterations or additions and same
do not materially negatively impact the Property); and (ix) if the consent of
any mortgagee is required, such mortgagee refuses to consent after good faith
efforts by Landlord to obtain such consent. Any attempted Transfer without
Landlord's prior written consent shall be void.
(b) If Tenant requests Landlord's consent to a Transfer (other than a
Permitted Transfer), Landlord may either (i) approve or disapprove the Transfer,
or (ii) terminate this Lease with respect to the part of the Premises included
in the proposed Transfer. In connection with each Transfer request by Tenant,
Tenant shall obtain and furnish to Landlord all documents, financial reports,
and other information Landlord reasonably requires in order to evaluate the
proposed transferee. Landlord shall advise Tenant of Landlord's decision with
respect to the requested Transfer within twenty (20) days after receipt of
Tenant's written Transfer request and all requested supporting materials. If
Landlord refuses to consent to a requested Transfer, this Lease shall
nonetheless remain in full force and effect. The consent of Landlord to one
requested Transfer shall never be construed to waive the requirement for
Landlord's consent to other Transfers, nor shall any consent by Landlord or
Transfer by Tenant discharge or release Tenant from any obligations or
liabilities to Landlord. Tenant shall remain fully responsible for all
obligations and liabilities arising under this Lease following any Transfer.
(c) All net cash or other proceeds of any Transfer (other than a
Permitted Transfer) in excess of the Minimum Rent and Additional Rent payable
under this Lease (i.e., net of reasonable brokerage commissions, legal fees,
transferee improvements and other costs incurred by Tenant in connection with
the Transfer) shall be paid to Landlord, and Tenant hereby assigns to Landlord
all rights it might have or ever acquire to such portion of the excess net
proceeds. No transferee of less than the entire Premises or Lease shall ever be
entitled to exercise any extension, expansion, or other option provided in this
Lease or to the return of the Deposit. If an Event of Default by Tenant occurs
after any Transfer, Landlord may, at its option, collect rent directly from the
transferee, and Tenant hereby authorizes any transferee to pay rent directly to
Landlord at all times after receipt of written notice from Landlord. No direct
collection by Landlord from any transferee shall constitute a novation or
release Tenant from its obligations and liabilities under this Lease.
(d) Notwithstanding any provision of this Lease to the contrary (i) an
assignment or subletting of all or a portion of the Premises to an entity which
is controlled by, controls, or is under common control with, Tenant, or to an
entity or which results from a merger or consolidation with Tenant, or which has
purchased all or a substantial part all of Tenant's assets (any such entity, an
Affiliate), (ii) a transfer of all or a substantial portion of the shares in
Tenant in connection with any sale, assignment, merger or other reorganization,
whether by operation of law or otherwise, (iii) a transfer of all or a
substantial part of the assets of Tenant, (iv) any transfer of all or a
substantial portion of the shares, control, and/or assets of Tenant to any
Affiliate, division, or entity controlling, controlled by or under common
control with Tenant, (v) any assignment of this Lease or pledge of a legal or
beneficial interest in Tenant to a lender or vendor as security for financing of
Tenant's equipment (provided, however, that Landlord shall owe such vendor(s) no
duties or obligations except to the extent, if any, imposed on Landlord under
any document(s) executed by Landlord and such vendor(s)), and/or (vi) provided
that Tenant remains in possession and control of the Premises, any Business
Agreements (defined below) to the extent that any Business Affiliates (as
defined below) comply in all respects with this Lease, including, without
limitation, the provisions hereof related to permitted uses and legal
compliance, shall be a Permitted Transfer and not be deemed a Transfer for any
purpose under this Lease, provided that Tenant notifies Landlord of any such
assignment or sublease and supplies Landlord with any documents or information
reasonably requested by Landlord regarding such assignment or sublease to such
affiliate. The term Business Agreement(s) shall mean any license, co-location
agreement (defined below), or other arrangement which permits the use or
occupancy of portions of the Premises by any of Tenant's subsidiaries,
divisions, customers, peering partners, or providers of telecommunications
services to any of the foregoing (collectively, Business Affiliates) and/or
their equipment and personnel; provided, however, that such Business Affiliates
(a) shall have no right to occupy the Premises, (b) shall be subject to all
restrictions imposed on Tenant hereunder, and (c) shall be owed no duties from
Landlord. The term Co-location agreement(s) shall mean any agreement entered
into by Tenant with another party whereby Tenant is providing (whether by cable,
fiber or other form of physical transmission, wireless transmission, or any
other mode of transmission) (i) co-location, access, or any other form of
connection to (a) the Internet, (b) any Internet successor or affiliated
networking system, and/or (c) any other existing or future telecommunications,
networking, or communication systems, or (ii) computer outsourcing services
(e.g. housing and management of computer services for Business Affiliates,
whether or not such entities are connected to the Internet or other networks or
systems). Control, as used in this Subparagraph, shall mean the ownership,
directly or indirectly, of more than fifty percent (50%) of the voting
securities of, or possession of the right to vote, in the ordinary direction of
its affairs, of more than fifty percent (50%) of the voting interest in, any
person or entity.
17 TRANSFERS BY LANDLORD. Landlord shall have the unrestricted right to sell,
assign, mortgage, encumber, or otherwise dispose of all or any part of the
Property or any interest therein. Upon sale or other disposition of the Property
to a party who assumes the obligations of Landlord under this Lease, Landlord
shall be released and discharged from obligations and liabilities thereafter
accruing under this Lease (including liability for the return of any Deposit if
the same has been delivered to such party), and Tenant shall look solely to
Landlord's successor for performance of the Lease thereafter (including the
return of any Deposit if the same has been delivered to such party). Tenant's
obligations under this Lease shall not be affected by any sale, assignment,
mortgage, encumbrance, or other disposition of the Property by Landlord, and
Tenant shall attorn to anyone who thereby becomes the successor to Landlord's
interest in this Lease.
18 SUBORDINATION. This Lease is subject and subordinate to any and all mortgages
now or hereafter encumbering the Property. Such subordination shall be
self-operative without the necessity of any further instrument, but if requested
by Landlord, Tenant shall promptly execute and deliver to Landlord any
instrument Landlord may reasonably request to evidence the subordination of this
Lease to such mortgages or to acknowledge the assignment of this Lease as
additional security for such mortgages. If any person acquires the Property
through the exercise of remedies provided in a mortgage, Tenant shall
automatically attorn to and become the tenant of the new owner of the Property,
except that the new owner shall not be bound by any payment of rent for more
than one (1) month in advance or liable for any act or omission of Landlord that
occurred prior to the date the new owner acquired title and possession of the
Property. Upon request by such a new owner, Tenant shall execute an instrument
confirming the attornment provided in this Paragraph.
Notwithstanding any provision of this Lease to the contrary, Landlord hereby
represents and warrants that it shall, within thirty (30) days of the execution
and delivery of this Lease by Tenant, obtain from the holder of a mortgage,
ground lease or any other interest in the Premises, Building and/or Property
superior to Tenant (a Mortgagee), a non-disturbance agreement providing, among
other things, that (a) Tenant will not be named or joined in any proceeding to
enforce the Mortgagee's interest unless required by law in order to perfect the
proceeding; (b) enforcement of the Mortgagee's interest shall not terminate the
Lease or disturb Tenant in the possession and use of the Premises (except in the
case where Tenant is in default under the Lease beyond any applicable notice and
cure period); and (c) any party succeeding to the interest of Landlord as a
result of the enforcement of the holder's interest shall be bound to Tenant
under all the terms, conditions and covenants of the Lease for the balance of
the term thereof, with the same force and effect as if such party were the
original Landlord under this Lease. In addition, Tenant's subordination to any
future Mortgagee hereunder is expressly conditioned on execution and delivery of
a non-disturbance agreement as set forth above. Landlord and Tenant agree that
any non-disturbance agreement in form and substance substantially similar to the
form attached hereto as Exhibit H shall satisfy the requirements of this
Paragraph.
19 ESTOPPEL CERTIFICATES; Financial Statements. Within ten (10) days after a
written request by Landlord, Tenant shall deliver an estoppel certificate in a
form supplied by or acceptable to Landlord certifying any facts that are then
true with respect to this Lease, including without limitation that this Lease is
in full force and effect, that no default exists on the part of Tenant or, to
Tenant's knowledge, on the part of Landlord, that Tenant is in possession, that
Tenant has commenced the payment of rent, and that Tenant, to its knowledge, has
no defenses or offsets with respect to payment of rent under this Lease.
Likewise, within ten (10) days after a written request by Tenant, Landlord shall
deliver to Tenant an estoppel certificate covering such matters of fact with
respect to Landlord's obligations under the Lease as are reasonably requested by
Tenant. If Landlord intends to sell the Property or obtain a loan secured by the
Property, then within ten (10) days of Landlord's written request, Tenant shall
furnish Landlord its most recent available audited or unaudited financial
statements.
20 EVENTS OF DEFAULT BY TENANT. Each of the following constitutes an
Event of Default by Tenant (herein so called):
(a) Tenant fails or refuses to pay any installment of Minimum Rent,
Additional Rent, or any other sum payable under this Lease when due, and the
failure or refusal continues for at least five (5) days after receipt of written
notice of such failure, provided that Landlord shall not be required to give
more than two (2) such notices of payment default within any consecutive twelve
(12) month period (with any subsequent late payment within such period an
automatic default).
(b) Tenant fails or refuses to comply with any provision of this Lease
not requiring the payment of money, and the failure or refusal continues for at
least thirty (30) days after receipt of written notice from Landlord; provided,
however, if any failure by Tenant to comply with this Lease cannot be corrected
within such 30-day period solely as a result of nonfinancial circumstances
outside of Tenant's control, and if Tenant has commenced substantial corrective
actions within such 30-day period and is diligently pursuing such corrective
actions, such 30-day period shall be extended for such additional time as is
reasonably necessary to allow completion of actions to correct Tenant's
noncompliance.
(c) Tenant's leasehold estate is taken on execution or other process of
law in any action against Tenant (other than a Permitted Transfer).
(d) Tenant fails or refuses to take occupancy of the Premises upon the
Commencement Date, or Tenant ceases to do business in, or abandons any
substantial part of, the Premises, and concurrently fails to comply with any
other material obligation or covenant under this Lease (e.g., payment of rent,
maintenance of the Premises or maintenance of insurance).
(e) Tenant or any guarantor of this Lease files a petition under any
chapter of the United States Bankruptcy Code, as amended, or under any similar
law or statute of the United States or any state, or a petition is filed against
Tenant or any such guarantor under any such statute and not dismissed with
prejudice within twenty (20) days of filing, or a receiver or trustee is
appointed for Tenant's leasehold estate or for any substantial part of the
assets of Tenant or any such guarantor and such appointment is not dismissed
with prejudice within sixty (60) days, or Tenant or any such guarantor makes an
assignment for the benefit of creditors.
21 LANDLORD'S REMEDIES. If an Event of Default by Tenant occurs,
Landlord shall be entitled then or at any time thereafter to do any one or more
of the following at Landlord's option:
(a) Enter the Premises if need be, and take whatever curative actions
are necessary to rectify Tenant's noncompliance with this Lease; and in that
event Tenant shall reimburse Landlord on written demand for any expenditures by
Landlord to effect compliance with Tenant's obligations under this Lease.
(b) Terminate this Lease, in which event Tenant shall immediately
surrender possession of the Premises to Landlord, or without terminating this
Lease, terminate Tenant's right to possession of the Premises; and in either
case, Landlord may re-enter and take possession of the Premises, evict Tenant
and all parties then in occupancy or possession, and if permitted under
applicable law, change the locks on the doors of the Premises without making
keys to the changed locks available to Tenant.
(c) If Landlord has terminated this Lease, recover all Minimum Rent,
Additional Rent, and other sums owing and unpaid under this Lease as of the date
of termination plus damages measured by the present value of the difference in
the rental value of the Premises if this Lease had been fully performed for the
balance of the term and the rental value of the Premises following the Event of
Default by Tenant (taking into account probable remodeling, lease commission,
allowance, inducement, and other costs of reletting).
(d) If Landlord has not terminated this Lease (whether or not Landlord has
terminated Tenant's right to possession of the Premises or actually retaken
possession), recover (in one or more suits from time to time or at any time
before or after the end of the term) all Minimum Rent, Additional Rent, and
other sums then or thereafter owing and unpaid under this Lease, together with
all costs, if any, incurred in reletting the Premises (including remodeling,
lease commission, allowance, inducement, and other costs), less all rent, if
any, actually received from any reletting of the Premises during the remainder
of the term. Landlord shall have the right following an Event of Default by
Tenant to relet the Premises on Tenant's account without terminating the Lease,
any such reletting to be on such terms as Landlord considers reasonable under
the circumstances. Landlord may, at its option and without terminating this
Lease, also declare the difference, if any, between (i) the entire amount of the
rental which would become due and payable during the remainder of the term of
this Lease, discounted to present value using a discount rate equal to the prime
rate of the Atlanta office of Bank of America (the "Prime Rate") in effect as of
the date of such declaration, and (ii) the fair rental value of the Leased
Premises during the remainder of the term of this Lease (taking into account,
among other factors, the anticipated duration of the period the Premises will be
unoccupied prior to reletting and the anticipated cost of reletting the Leased
Premises), also discounted to present value using a discount rate equal to the
Prime Rate in effect as of the date of such declaration, to be due and payable
immediately, in which event such sum shall be due and payable immediately and
Tenant agrees to pay to Landlord the same at once, together with all rental and
other sums theretofore due, it being understood and agreed that such payment
shall be and constitute Landlord's liquidated damages, Landlord and Tenant
acknowledging and agreeing that it is difficult or impossible to determine the
actual damages Landlord would suffer from Tenant's breach hereof and that the
agreed upon liquidated damages are not punitive or penalties and are just, fair
and reasonable, all in accordance with O.C.G.A. `13-6-7.
(e) Recover all costs of retaking possession of the Premises and
any other damages incidental to the Event of Default by Tenant.
(f) Terminate all of Tenant's rights to any allowances or under any
renewal, extension, expansion, refusal, or other options granted to Tenant by
this Lease.
(g) Exercise any and all other remedies available to Landlord at
law or in equity, including injunctive relief of all varieties.
If Landlord elects to retake possession of the Premises without terminating this
Lease, it may nonetheless at any subsequent time elect to terminate this Lease
and exercise the remedies provided above on termination of the Lease. Nothing
done by Landlord or its agents shall be considered an acceptance of any
attempted surrender of the Premises unless Landlord specifically so agrees in
writing. No re-entry or taking of possession of the Premises by Landlord, nor
any reletting of the Premises, shall be considered an election by Landlord to
terminate this Lease unless Landlord gives Tenant written notice of termination.
22 LANDLORD'S DEFAULT. It shall be an Event of Default by Landlord (herein so
called) only if Landlord fails to comply with any provision of this Lease and
the failure continues for at least thirty (30) days after written notice from
Tenant to Landlord (with a copy to Landlord's mortgagee if Tenant has been
notified in writing of the identity and address of such mortgagee); provided,
however, if any failure by Landlord to comply with this Lease cannot be
corrected within such 30-day period solely as a result of nonfinancial
circumstances outside of the control of Landlord, and if substantial corrective
actions have commenced within such 30-day period and are being diligently
pursued, such 30-day period shall be extended for such additional time as is
reasonably necessary to allow completion of actions to correct Landlord's
noncompliance.
23 TENANT'S REMEDIES. Except as otherwise provided in this Lease, in the Event
of Default by Landlord, Tenant shall be entitled to any remedies available at
law or in equity. Notwithstanding anything in this Lease to the contrary,
Landlord shall never be liable in the Event of Default by Landlord, under any
promise of indemnity in this Lease, or under any other provision of this Lease
for any loss of business or profits of Tenant or other consequential damages or
for punitive or special damages of any kind. None of Landlord's officers,
employees, agents, directors, shareholders, or partners shall ever have any
liability to Tenant under or in connection with this Lease. Tenant agrees to
look solely to Landlord's interest in the Property for the recovery of any
judgment against Landlord, and Landlord shall never be personally liable for any
judgment.
In the event that Landlord fails to comply with its obligations to repair under
Paragraph 7 within the period set forth in Paragraph 22, Tenant shall have the
right, upon reasonable prior notice to Landlord, to make such repairs as are
reasonably necessary to promote the tenantability of the Premises and protect
Tenant's business operations and equipment. Landlord shall reimburse Tenant's
reasonable costs (but in no event for any Excess Costs (as hereinafter defined)
incurred in connection with any such repair by Tenant within thirty (30) days of
receipt of invoices and necessary lien waivers therefor. Landlord acknowledges
that the watertighness of the Building is of paramount importance to Tenant and
agrees that it shall repair any leaks as quickly as possible, and that,
notwithstanding the foregoing, Tenant may, immediately following notice to
Landlord, use commercially reasonable efforts to correct such leaks and make
such other repairs as Tenant deems necessary, in its reasonable business
judgment, to avert damage to its operations and equipment. Notwithstanding any
contrary provision herein, in the event that Tenant commences performance of any
repairs under this Paragraph, then (i) Tenant shall be obligated to prosecute
such performance to full completion in a good and workmanlike manner in
accordance with applicable laws, codes and ordinances and shall be solely
responsible for any and all costs and expenses associated with repairing any
defective work so performed by Tenant, (ii) such commencement shall be deemed to
be a cure of Landlord's failure to perform such obligations, (iii) Landlord
shall have no further duties or liabilities (except with respect to reimbursing
Tenant for Tenant's performance) in connection with such obligations, (iv)
Tenant shall be and remain solely liable for any failure by Tenant to complete
such performance, (v) Tenant shall utilize its best efforts to contact and
utilize a contractor to make the repair that is included on Landlord's approved
contractor list, and (vi) Tenant agrees to pay any and all costs and expenses of
the repair that exceed those that would have been incurred by Landlord in
diligently and competently prosecuting such repair (excluding necessary weekend
and overtime surcharges)(such costs, the Excess Costs).
24 INDEMNIFICATION.
(a) Tenant shall indemnify and hold Landlord and its officers,
employees, agents, directors, shareholders, and partners harmless against any
loss, liability, damage, fine or other governmental penalty, cost, or expense
(including attorneys' fees and costs of litigation), or any claim therefor,
resulting from: (i) Tenant's noncompliance with or violation of any law,
ordinance, or other governmental regulation applicable to Tenant or its use and
occupancy of the Premises; (ii) the use, generation, storage, treatment, or
transportation, or the disposal or other release into the environment, of any
Hazardous Material by Tenant or its employees, agents, or contractors or as the
result of Tenant's use and occupancy of the Premises; or (iii) injury to persons
or loss or damage to property to the extent caused by any negligent or wrongful
act or omission of Tenant or its employees, agents, and contractors, but only to
the extent the loss or damage would not be covered by property and casualty
insurance of the type and amount required to be carried by Landlord pursuant to
this Lease (whether or not actually so carried).
(b) Landlord shall indemnify and hold Tenant and its officers,
employees, agents, directors, shareholders, and partners harmless against any
loss, liability, damage, fine or other governmental penalty, cost, or expense
(including attorneys' fees and costs of litigation), or any claim therefor,
resulting from: (i) Landlord's noncompliance with or violation of any law,
ordinance, or other governmental regulation applicable to Landlord, but only to
the extent such noncompliance or violation is not based on the use or occupancy
of the Premises by Tenant or on any other act or omission of Tenant or its
employees, agents, or contractors; (ii) the use, generation, storage, treatment,
or transportation, or the disposal or other release into the environment, of any
Hazardous Material by Landlord or its employees, agents, or contractors; or
(iii) injury to persons or loss or damage to property (other than trade fixtures
or personal property owned by, or in the custody of Tenant) to the extent caused
by any negligent or wrongful act or omission of Landlord or its employees,
agents, and contractors (other than any negligent or wrongful omission to
furnish security services or equipment or any negligent or wrongful act or
omission in connection with any security services or equipment furnished).
Nothing herein shall create any liability on the part of Landlord for any acts
or omissions by other tenants or occupants of the Property or their agents,
employees, contractors, or invitees.
25 PROTECTION AGAINST LIENS. Tenant shall do all things necessary to prevent the
filing of any mechanics', materialmen's, or other type of lien or claim against
Landlord or the Property by, against, through, or under Tenant or its
contractors (other than security interests described in clause (v) of Paragraph
16(d) above). If any such lien or claim is filed, Tenant shall either cause the
same to be discharged within twenty-five (25) days after filing, or if Tenant in
its discretion and in good faith determines that such lien or claim should be
contested and if all required consents or approvals of Landlord's mortgagee are
obtained, Tenant shall furnish such security as may be necessary to prevent any
foreclosure proceedings against the Property during the pendency of such
contest. If Tenant fails to discharge such lien or claim within such 25-day
period or fails to furnish such security, then Landlord may at its election, in
addition to any other right or remedy available to it, discharge the lien or
claim by paying the amount alleged to be due or by giving appropriate security.
If Landlord discharges or secures such lien or claim, then Tenant shall
reimburse Landlord on written demand for all sums paid and all costs and
expenses (including reasonable attorneys' fees) so incurred by Landlord.
26 HOLDING OVER. If Tenant remains in possession of any part of the Premises
after the expiration of the term of this Lease, whether with or without
Landlord's consent, Tenant shall be only a tenant at will, the monthly
installments of Minimum Rent payable during such holdover period shall be one
hundred fifty percent (150%) of the monthly installments of Minimum Rent payable
immediately preceding such expiration, and all Additional Rent and other sums
payable under this Lease shall continue to be due and payable. The acceptance of
any rent or other payments from Tenant with respect to any holdover period shall
not serve to extend the term or waive any rights of Landlord, but Landlord may
at any time refuse to accept rent or other payments from Tenant, and may
re-enter the Premises, evict Tenant and all parties then in occupancy or
possession, take possession of the Premises, and if permitted under applicable
law, change the locks on the doors of the Premises without making keys to the
changed locks available to Tenant. Tenant shall indemnify and hold Landlord
harmless against any loss, liability, damage, cost, or expense (including
attorneys' fees and costs of litigation), or any claim therefor, related to
Tenant's holding over, including liabilities to any person to whom Landlord may
have leased any part of the Premises.
27 ATTORNEY'S FEES. If an Event of Default by Tenant or an Event of Default by
Landlord occurs, the nondefaulting party shall be entitled to recover reasonable
attorneys' fees and other expenses of litigation incurred in exercising and
enforcing its remedies under this Lease.
28 WAIVER. The failure of a party to insist upon the strict performance of any
provision of this Lease or to exercise any remedy for an event of default shall
not be construed as a waiver. The waiver of any noncompliance with this Lease
shall not prevent subsequent similar noncompliance from being or becoming an
event of default. No waiver shall be effective unless expressed in writing
signed by the waiving party. No waiver shall affect any condition other than the
one specified in the waiver and then only for the time and in the manner stated.
Landlord's receipt of any rent or other sums with knowledge of noncompliance
with this Lease by Tenant shall not be considered a waiver of the noncompliance.
No payment by Tenant of a lesser amount than the full amount then due shall be
considered to be other than on account of the earliest amount due. No
endorsement or statement on any check or any letter accompanying any check or
payment shall be considered an accord and satisfaction, and Landlord may accept
any check or payment without prejudice to Landlord's right to recover the
balance owing and to pursue any other available remedies.
29 LEASING COMMISSIONS. Each of Landlord and Tenant represents and warrants to
the other that it has not dealt with anyone claiming any entitlement to any
commission in connection with this leasing transaction except: N/A representing
Landlord and Insignia/ESG representing Tenant, the "Broker(s)", whose commission
will be paid by Landlord pursuant to a separate written agreement. Each of
Landlord and Tenant agrees to indemnify and hold the other harmless against any
loss, liability, damage, cost, or expense (including attorneys' fees and costs
of litigation), or any claim therefor, for any leasing or other commissions,
fees, charges, or payments resulting from or arising out of their respective
actions in connection with this Lease except as to Broker(s). Landlord shall
indemnify and hold Tenant harmless against payment of any leasing commission due
Broker(s) in connection with this Lease.
30 NOTICES. Any written notice may be given by (a) depositing the notice in the
United States mail, postpaid and certified and addressed to the party at its
notification address under this Lease with return receipt requested, (b)
delivering the same in person or by commercial messenger or overnight private
delivery service to the party at its notification address under this Lease, or
(c) by facsimile transmission to the party at its notification address under
this Lease. Unless actually received earlier, written notice deposited in the
mail in the manner described above shall be effective on the third business day
after it is so deposited, even if not received. Written notice given in person
or by commercial messenger, overnight private delivery, or facsimile
transmission in the manner described above shall be effective as of the time of
receipt at the destination address as evidenced by a receipt signed by an
employee of Tenant, by any confirmation of delivery provided by the messenger or
delivery service, or by facsimile confirmation of transmission. The notification
addresses of the parties are specified on the signature page of this Lease. Each
party shall have the right to change its address by not less than ten (10) days'
prior written notice to the other party.
31 MISCELLANEOUS.
(a) If requested by Landlord, Tenant shall furnish appropriate evidence
of the valid existence and good standing of Tenant and the authority of any
parties signing this Lease to act for Tenant. If requested by Tenant, Landlord
shall furnish appropriate evidence of the valid existence and good standing of
Landlord and the authority of any parties signing this Lease to act for
Landlord.
(b) This document embodies the entire contract between the parties, and
supersedes all prior agreements and understandings between the parties related
to the Premises, including all lease proposals, letters of intent, and similar
documents. All representations, warranties, or agreements of an inducement
nature, if any, are merged with, and stated in this document. This Lease may be
amended only by a written instrument executed by both Landlord and Tenant.
(c) The relationship created by this Lease is that of landlord and
tenant. Landlord and Tenant are not partners or joint venturers, and neither has
any agency powers on behalf of the other. Tenant is not a beneficiary of any
other contract or agreement relating to the Property to which Landlord may be a
party, and Tenant shall have no right to enforce any such other contract or
agreement on behalf of itself, Landlord, or any other party.
(d) No consent or approval by Landlord shall be effective unless given
in writing signed by Landlord or its duly authorized representative. Any consent
or approval by Landlord shall extend only to the matter specifically stated in
writing.
(e) Whenever this Lease requires Tenant to pay or reimburse Landlord
for costs or expenses in connection with any matter, such payment or
reimbursement shall include costs and expenses payable by Landlord for related
legal, architectural, engineering, and other consulting services as well as a
ten percent (10%) administrative processing fee to compensate Landlord for its
additional administrative and overhead costs. Whenever this Lease requires
Landlord's consent to or approval of any item, Landlord may condition such
consent or approval on payment or reimbursement of all costs and expenses
incurred by Landlord (including legal, architectural, engineering, and other
consulting services) as well as reasonable administrative processing fee to
compensate Landlord for its additional administrative and overhead costs.
(f) The captions appearing in this Lease are included solely for
convenience and shall never be given any effect in construing this Lease.
(g) This Lease is being executed in multiple counterparts,
each of which shall be considered an original for all purposes.
(h) If any provision of this Lease is invalid or unenforceable, the
remainder of this Lease shall not be affected. Each separate provision of this
Lease shall be valid and enforceable to the fullest extent permitted by law.
(i) This Lease binds not only Landlord and Tenant, but also their
respective heirs, personal representatives, successors, and assigns (to the
extent assignment is permitted by this Lease).
(j) This Lease is governed by the laws of the state in which the
Property is located.
(k) All references to "business days" in this Lease shall refer to days
that national banks are open for business in the city where the Property is
located. Time is of the essence of this Lease.
(l) All references to "mortgage(s)" in this Lease shall include deeds
of trust, deeds to secure debt, other security instruments, and any ground or
other lease under which Landlord may hold title to the Property as lessee. All
references to "mortgagee(s)" in this Lease shall include trustees,
beneficiaries, secured parties, ground or other lessors, and other parties
secured by any mortgage.
(m) Any liability or obligation of Landlord or Tenant arising during or
accruing with respect to the term of this Lease shall survive the expiration or
earlier termination of this Lease, including without limitation, obligations and
liabilities relating to (i) the final adjustment of estimated installments of
Additional Rent to actual Additional Rent owed, (ii) the condition of the
Premises or the removal of Tenant's property, and (ii) indemnity and hold
harmless provisions of this Lease.
(n) Tenant agrees not to record this Lease. Tenant may record a
memorandum of this Lease in a form approved by Landlord in writing prior to
recording provided Tenant pays all taxes, recording fees, or other governmental
charges incident to such recording. The memorandum shall not disclose the rent
payable under this Lease and shall expressly provide that it shall be of no
further force or effect after the last day of the term or on filing by Landlord
of an affidavit that this Lease has expired or been terminated. Additionally,
Tenant shall not disclose the terms of this Lease to any third party except (i)
legal counsel to Tenant, (ii) any assignee of Tenant's interest in this Lease or
sub-tenant of Tenant, (iii) as required by applicable law or by subpoena or
other similar legal process, or (iv) for financial reporting purposes.
(o) Landlord has delivered a copy of this Lease solely for Tenant's
review, and such delivery does not constitute an offer to Tenant or an option
reserving the Premises. This Lease shall not be effective until a counterpart
executed by both Landlord and Tenant is delivered by Landlord to Tenant.
(p) Tenant's interest in this Lease is a usufruct, not subject to levy
and sale and not assignable except as expressly stated in this Lease to the
contrary, rather than estate or interest in land.
32 SPECIAL PROVISIONS. Any special provisions are attached to this Lease
as Exhibit G.
IN WITNESS WHEREOF, the parties have caused this Lease to be executed pursuant
to authority duly given as of the day and year first above written.
[Signatures on following page]
TENANT: LANDLORD:
COMPUTER OUTSOURCING SERVICES, INC., CROCKER REALTY TRUST, L.P., a Delaware
a corporation limited partnership, doing business in
---------------------- Georgia as CROCKER REALTY. L.P.
By: CRT-GP, LLC, a Delaware limited
liability company, its sole general
partner
By: Crocker Operating Partnership,
L.P., a Delaware limited
partnership, its sole member
By:
Name:
Title By: Crocker Realty Trust, Inc., a
Maryland corporation, its sole
general partner
[CORPORATE SEAL]
By:
----------------------------------
Name: Christopher L. Becker
Title: Vice President
[CORPORATE SEAL]
Tenant's Notification Address: Landlord's Notification Address:
- ----------------------------- -------------------------------
c/o Crocker Realty Trust, L.P.
433 Plaza Real, Suite 335
Boca Raton, Florida 33432
Facsimile: (561) 394-7712
Facsimile:
Copy to:
Crocker Realty, L.P.
2675 Paces Ferry Road
Suite 320
Atlanta, Georgia 30339
Attention: Christopher L. Becker
Facsimile: (770) 435-7080
EXHIBIT A
Legal Description of Building Site and Property
EXHIBIT B
Floor Plan of Premises
EXHIBIT C
Plan of Exterior Areas
EXHIBIT D
Minimum Rent
From Through Rate Annual Amount Monthly Installment
- ---------- ------------ -------- -------------- --------------------
07/01/00 06/30/01 $14.50 $756,523.00 $63,043.58
07/01/01 06/30/02 $14.86 $775,305.64 $64,608.80
EXHIBIT E
Additional Rent Calculation
1. Operating Expenses (herein so called) shall consist of all costs and expenses
of Landlord or its property management company ("Manager") accrued each calendar
year for the management, operation, repair, and maintenance of the Property,
including without limitation, costs and expenses for the following in connection
with the Property:
(a) Wages, salaries and compensation (including fringe benefits) paid or
incurred for employees of Landlord or Manager up to and including the level of
Property manager or the equivalent, provided that if such employees provide
services with respect to other premises, such amounts shall be fairly allocated
amongst all such premises.
(b) Materials, supplies, replacement parts, equipment, and tools
(whether purchased or leased).
(c) Services rendered by third parties, including services to be provided
by Landlord pursuant to the terms of the Lease. The costs of services rendered
by Landlord, Manager or the affiliates of either shall not include costs
representing an amount paid to Landlord, Manager or their affiliates which is in
excess of the market rate which would have been paid in the absence of such
relationship.
(d) Utility costs and services, including electricity, gas, telephone,
sewage, refuse or garbage collection, fire protection, and security services (if
furnished).
(e) Insurance premiums and policy deductibles paid, including property and
casualty, rent loss, and public liability insurance.
(f) Management fees and expenses.
(g) Accounting services.
(h) Assessments, fees, or similar charges for the Property's fair share of
the cost of operating and maintaining common areas and facilities of the
business park in which the Property is located.
(i) Expenditures required to be capitalized in accordance with generally
accepted accounting principles that are either required under any governmental
law or regulation that was not applicable to the Property at the time the
Building was constructed or that are intended to reduce Operating Expenses;
provided that such capitalized costs shall be amortized over a reasonable period
(as determined in accordance with generally accepted accounting principles) with
interest thereon at the prime rate of NationsBank of North Carolina, N.A. (or
its successor), in effect at the time such capital improvements were made.
Notwithstanding the foregoing, Operating Expenses shall not include: (i)
depreciation or amortization (except as otherwise provided above), (ii) debt
service, interest or ground lease payments, (iii) leasing commissions or
brokerage fees, (iv) repairs to the Building and any demised premises where the
occurrence causing the damage or loss necessitating repair is reimbursed by
insurance carried by Landlord or that would have been reimbursed by insurance as
would normally be carried by a reasonably prudent operator, (v) renovating space
for new tenants or in renovating space vacated by any tenant, (vi) Landlord's
cost of utilities separately charged to tenants and Landlord's payroll,
material, and contract cost of other services separately charged to tenants,
(vii) costs incurred by Landlord for Tenant's alterations, (viii) any cost of
painting and decorating the premises of other tenants, and (ix) costs required
to be capitalized in accordance with generally accepted accounting principles
(except as described above).
2. Taxes (herein so called) for each calendar year shall consist of all real
estate taxes, assessments (whether for drainage, sewage, or other public
improvements), taxes on rent or on occupancy or use of the Property, and similar
governmental impositions now or hereafter levied or assessed, whether general or
special, and whether imposed by any governmental entity or special taxing or
assessment district (excluding, however, any income, franchise, or similar tax
imposed directly on Landlord or Landlord's net income from the Property),
together with all costs incurred by Landlord in contesting same.
3. In calculating Operating Expenses, all costs shall be determined on an
annualized basis, and costs that vary with occupancy (such as janitorial service
and utilities) shall be appropriately adjusted to reflect Operating Expenses at
one hundred (100%) percent occupancy of the Building for a full calendar year.
If the rentable area of the Building changes, subsequent calculations of
Additional Rent shall be adjusted accordingly based on an architect's
certificate or other reasonable substantiation of the Building's rentable area.
4. Tenant shall have the right, upon reasonable notice, to audit the books and
records of Landlord relating to determination of Additional Rent within thirty
(30) days after receipt of Landlord's calculation of Additional Rent. In the
event that such audit reflects a discrepancy, and Landlord does not provide
evidence to the contrary, an adjustment shall immediately be made to correct
such discrepancy. The cost of the audit shall be at the expense of Tenant,
unless the audit reveals a discrepancy in Landlord's favor of more than five
percent (5%), in which event Landlord shall reimburse Tenant for the reasonable
and actual expenses incurred by Tenant in connection with the audit.
EXHIBIT F
Building Rules and Regulations
1. Sidewalks, doorways, vestibules, halls, stairways, elevator lobbies
and other similar areas in the common areas of the Property shall not be used
for the storage of materials or disposal of trash, obstructed by tenants or
others, or used by tenants or others for any purpose other than entrance to and
exit from tenant premises.
2. Plumbing fixtures shall be used only for the purposes for which they
are designed, and no sweepings, rubbish, rags, or other unsuitable materials
shall be disposed into them. Damage resulting to any such fixtures from misuse
by a tenant shall be the liability of said tenant.
3. Landlord's property manager shall have the authority to approve the
proposed weight and location of any safes and heavy furniture and equipment,
which shall if determined to be necessary by Landlord's property manager, stand
on supporting devices approved by Landlord's property manager in order to
distribute the weight.
4. Each tenant shall keep its premises neat and clean. No exterior
storage of materials, equipment, supplies, or other property shall be permitted.
All trash shall be properly disposed of in appropriate containers or
receptacles. Specifically, and without limitations, no exterior storage of
pallets or shipping containers is permitted.
5. No birds, fish or other animals shall be brought into or kept in, on
or about the Building (except for seeing-eye dogs).
6. Each tenant shall comply with all security procedures (if any) both
during business hours and after hours and on weekends. Landlord's property
manager will provide each tenant with prior notice of any such security
procedures and any changes thereto promptly. Tenants shall lock all exterior
doors after working hours.
7. No flammable or explosive fluids or materials shall be kept or used
within the Building except in areas approved by Landlord, and each tenant shall
comply with all applicable building and fire codes relating thereto.
8. The location of any vending machines must be approved by Landlord's
property manager.
9. All locks for doors in each tenant's premises shall be Building
Standard except as otherwise permitted by Landlord and no tenant shall place any
additional lock or locks on any door in its premises without Landlord's property
manager's written consent. All requests for duplicate keys shall be made to
Landlord's property manager.
10. No machinery of any kind may be operated that would overload,
damage, or otherwise exceed design capacities for the Building's mechanical,
electrical, and plumbing systems and equipment.
11. Canvassing, peddling, soliciting and distribution of hand bills on
the Property (except for activities within a tenant's premises that involve only
such tenant's employees) is prohibited. Each tenant is requested to notify
Landlord (or Landlord's property manager) if such activities occur.
12. The tenant will be responsible for contacting Landlord's property
manager in advance for clearance of tenant contractors. All tenants shall refer
all contractors, contractors' representatives, and installation technicians
rendering any service to them to Landlord for Landlord's supervision, approval,
and control.
13. Each tenant and their contractors are responsible for removal of
trash resulting from large deliveries or move-ins. Such trash must be removed
from the Building and Building facilities may not be used for dumping. If such
trash is not promptly removed, Landlord (or Landlord's property manager) may
cause such trash to be removed at the tenant's sole cost and expense plus a
reasonable additional charge to be determined by Landlord to cover Landlord's
administrative costs in connection with such removal.
14. Tenants may not install, leave or store equipment,
supplies, furniture or trash in the common areas of the Property (other than
the Exterior Areas).
15. Each tenant shall provide Landlord's property manager
with names and telephone numbers of individuals who should be contacted in an
emergency.
16. Electric current shall not be used for space heaters, cooking or
heating devices or similar appliances without Landlord's prior written
permission.
17. No vehicles shall be parked except in designated areas. No vehicles
may be stored or abandoned on the Property. All loading and unloading shall
occur only at designated loading docks or areas. All persons on the property
shall comply with traffic control and parking signs.
18. Except as provided in Paragraph 1 of the Lease, no antennas
(including microwave or satellite dish antennas) shall be placed on the roof of
the Building or elsewhere on the Property without the prior written consent of
Landlord.
Landlord reserves the right to amend and add to these rules as Landlord
considers appropriate for the safety, care, maintenance, operation, and
cleanliness of the Building, and for the preservation of good order therein. If
any of these rules directly contradicts the other terms of the Lease, such other
terms shall prevail.
EXHIBIT G
Special Provisions
1. Landlord, at its own cost and expense, agrees to replace, prior July
10, 2000, the entire roof of the Premises with a new watertight roof
system pursuant to the specifications attached hereto as Exhibit K.
2. Landlord shall, at its own cost and expenses, remove, or cause to be
removed, from the Property those batteries designated on Exhibit L
attached hereto.
3. Landlord has made no representations or promise as to the condition of
the Premises. Except as set forth in this Exhibit G, Landlord shall not
perform any alterations, additions, or improvements, in order to make
the Premises suitable and ready for occupancy and use by Tenant. Tenant
has inspected the Premises, is fully familiar with the physical
condition of the Premises, and shall accept the Premises as-is, where
is, and without any warranty, express or implied, or representation as
to fitness or suitability
4. Tenant shall have access to the Premises and Exterior Areas 24 hours
per day, 365 days per year. Tenant shall have the right to secure its
property in the Exterior Areas by means of a fence or other appropriate
measures behind the Building where not visible to the public, provided
that any such installation shall comply with all applicable laws,
ordinances, codes and rules and regulations.
5. Infocrossing, Inc. (Guarantor) shall guaranty the performance of
Tenant's obligations hereunder pursuant to a guaranty to be
executed by Guarantor of the form attached hereto as Exhibit I.
6. Following Landlord's written confirmation to Tenant of Federated's
vacation of the Premises, Tenant shall be entitled to access to the
Premises upon its execution and delivery of the Lease for purposes of
measuring the space to design the Tenant Improvements, demolish the
space to a shell and core condition and thereafter construct the Tenant
Improvements. Tenant agrees that (i) it shall not interfere, or permit
its agents, employees or contractors, to interfere with, any
construction work being performed by, or on behalf of, Landlord; (ii)
Landlord shall have no responsibility or liability for any loss of
or damage to any of Tenant's property installed or left upon the
Premises (except such as results from the negligence or willful
misconduct of Landlord or its agents, employees or contractors); (iii)
all provisions of this Lease, other than the obligation of Tenant to
pay Rent, shall be binding upon Tenant at such time; (iv) Tenant's
agents, employees and contractors shall work in harmony and shall not
interfere with Landlord, Landlord's contractor or any subcontractor in
the construction of other improvements to the Building; and (v) before
entering upon the Premises, Tenant shall cause Landlord to be insured
from the date of such entry with satisfactory proof that all agents or
employees of Tenant or any of its contractors or subcontractors
entering upon the Premises are appropriately covered by workers'
compensation insurance. Tenant shall not undertake the installation of
the Tenant Improvements using contractors or employees that interfere
with or disrupt harmonious labor relations for the Building as a whole,
including work being performed by Landlord.
7. Notwithstanding the provisions of Paragraph 16(d) of the Lease, Tenant
may form an operating subsidiary (Subsidiary), and transfer its
interest hereunder to Subsidiary, provided that (i) prior to such
transfer, Tenant shall execute a guaranty of a form acceptable to
Landlord, and (ii) such Subsidiary is entirely controlled by Tenant or
Landlord is otherwise satisfied, in its sole discretion, with the
relationship between Tenant and Subsidiary.
8. With respect to the generators and raised flooring currently located in
the Premises for the use of Federated (the Federated Equipment), Tenant
may notify Landlord of any items of such Federated Equipment which
Tenant desires to use following Federated's surrender of the Premises,
which notice shall be effective if received by Landlord reasonably in
advance of Federated's surrender. Landlord shall use commercially
reasonable efforts to enforce the obligations of Federated to retain in
the Premises following the termination of Federated's lease those items
of the Federated Equipment for which Tenant timely notifies Landlord in
accordance with the immediately preceding sentence.
9. Landlord shall deliver to Guarantor copies of any default notice
delivered by Landlord to Tenant at the following address (or at such
other address as Guarantor may notify Landlord pursuant to Paragraph 30
of the Lease) :
Infocrossing, Inc.
Guarantor shall be afforded the same cure period from and after notice
as is afforded Tenant hereunder. As used in this Paragraph 9,
Guarantor shall mean and refer to Guarantor and, in the event that
Tenant executes the guaranty contemplated by Paragraph 7 above, Tenant.
EXHIBIT H
Form of Subordination, Non-Disturbance and Attornment Agreement
EXHIBIT I
Form of Guaranty
EXHIBIT J
Reports
1. Compliance Evaluation for an Emergency Generator Underground Storage
Tank, dated October 6, 1999
2. Letter from Federated Systems Group dated June 22, 1999
3. Phase I Environmental Site Assessment Update dated February 13, 1998
4. Phase I Environmental Site Assessment Update dated October 31, 1996
5. Report of Phase II Subsurface Investigation dated July 17, 1995
6. Asbestos Operations and Maintenance Program for Bay Colony Business
Center
EXHIBIT K
Roof Specifications
EXHIBIT L
Batteries to be Removed
All batteries located on the Premises except those specified in a written
notice to the Landlord at least 24 hours before Landlord's removal
contractor enters the Premises to remove such batteries.