DEED OF LEASE
between
BECO-TERMINAL LLC
("Landlord")
and
INFOCROSSING, INC.
("Tenant")
TABLE OF CONTENTS
Page
ARTICLE 1 PREMISES.......................................................1
ARTICLE 2 TERM...........................................................1
ARTICLE 3 RENEWAL OPTIONS................................................2
ARTICLE 4 ACCEPTANCE OF THE PREMISES BY TENANT...........................3
ARTICLE 5 RENTAL.........................................................4
ARTICLE 6 IMPOSITIONS....................................................5
ARTICLE 7 UTILITIES.....................................................6
ARTICLE 8 USE............................................................7
ARTICLE 9 LAWS, ORDINANCES, AND REQUIREMENTS OF PUBLIC AUTHORITIES.......7
ARTICLE 10 ALTERATIONS...................................................9
ARTICLE 11 LIENS........................................................11
ARTICLE 12 REPAIRS......................................................11
ARTICLE 13 INSURANCE....................................................12
ARTICLE 14 DAMAGE BY FIRE OR OTHER CASUALTY.............................14
ARTICLE 15 CONDEMNATION.................................................15
ARTICLE 16 ASSIGNMENT AND SUBLETTING....................................16
ARTICLE 17 INDEMNIFICATION..............................................22
ARTICLE 18 SURRENDER OF THE PREMISES....................................22
ARTICLE 19 ESTOPPEL CERTIFICATES........................................23
ARTICLE 20 SUBORDINATION................................................24
ARTICLE 21 DEFAULT AND REMEDIES.........................................26
ARTICLE 22 WAIVER BY TENANT.............................................29
ARTICLE 23 SECURITY DEPOSIT.............................................29
ARTICLE 24 ATTORNEYS' FEES AND LEGAL EXPENSES...........................31
ARTICLE 25 NOTICES......................................................31
ARTICLE 26 HAZARDOUS SUBSTANCES.........................................32
ARTICLE 27 SIGNS........................................................33
ARTICLE 28 WAIVER OF LIEN ON PERSONAL PROPERTY..........................33
ARTICLE 29 WAIVER OF JURY TRIAL; COUNTERCLAIMS..........................34
ARTICLE 30 MISCELLANEOUS................................................34
ARTICLE 31 OMITTED......................................................40
ARTICLE 32 BACKUP ELECTRICAL GENERATORS.................................40
ARTICLE 33 NET LEASE....................................................40
Exhibits:
Exhibit A Description of the Land
Exhibit B Rules and Regulations
Exhibit C Form of Commencement Date Certificate
Exhibit D Description of Landlord's Work
Exhibit D-1 Site Plan
Exhibit E ALTA Endorsement
Exhibit F Letter of Credit
BASIC LEASE INFORMATION
Date of Lease: July __, 2000.
Landlord: BECO-TERMINAL LLC, a Virginia limited liability company.
Tenant: INFOCROSSING, INC., a Delaware corporation.
Premises: The one-story building (the "Building") to be located at
45580 Terminal Drive, Sterling, Loudoun County, Virginia
together with the land on which the Building shall be
constructed, which land is more particularly described
on Exhibit A attached hereto (the "Land"). The Premises
are shown on the site plan attached hereto as Exhibit
D-1.
Commencement Date: The "Commencement Date" specified in Section 2.01 of the
Lease.
Expiration Date: The last day of the month in which occurs the 15 year
anniversary of the Commencement Date, subject to the
terms of Article 3 of the Lease.
Annual Base Rent: Subject to adjustment pursuant to Article 3 of the
Lease, the Annual Base Rent payable by Tenant shall be
as follows:
A. For the period commencing (the "Rent
Commencement Date") on the 10th day immediately
following the Commencement Date through the
last day of the First (1st) Lease Year, $29.50
per rentable square foot of the Building.
B. For each Lease Year during the Term (and any
Renewal Term) after the first (1st) Lease Year,
the Annual Base Rent per rentable square foot
of the Building shall increase by three percent
(3%) of the Annual Base Rent per rentable
square foot in effect for the immediately
preceding Lease Year as same may have been
previously increased.
Lease Year: The 12-month period beginning on the Commencement Date,
and each anniversary thereof; provided, however, that if
the Commencement Date occurs on a day other than the
first day of a calendar month, then the first Lease Year
shall commence on the Commencement Date and end 12
months after the first day of the first full month
following the Commencement Date.
Rentable Area of the Building: 54,400 rentable square feet, which
rentable square footage shall be certified to Tenant by
Landlord's licensed architect and adjusted, if
necessary, in accordance with BOMA standards.
Renewal Options: Two (2) additional periods of Five (5) years each.
Security Deposit: $1,460,000.00 subject to the terms of Sections 23.02 and
23.03 below.
Landlord's Address for Notices: BECO-Terminal LLC
c/o BECO Management, Inc.
11140 Rockville Pike, Suite 300
Rockville, Maryland 20852
Attn: President
(o) 301-816-1500
(fax) 301-816-1501
With a copy to:
BECO-Terminal I LLC
c/o BECO Management, Inc.
11140 Rockville Pike, Suite 300
Rockville, Maryland 20852
Attn: General Counsel
(o) 301-816-1500
(fax) 301-816-1501
Tenant's Address for Notices: INFOCROSSING, INC.
2 Christie Heights Street
Leonia, NJ 07605
Attn: Zach Lonstein, Chairman
(o) 201-840-4710
with a copy to Tenant at the above
address
Attention: General Counsel
Broker: None
Permitted Use: General office or warehouse purposes which may include
the installation, operation, repair, maintenance and
replacement of communications and switch equipment and
facilities including (a) colocation of equipment owned
by Colocates (as defined in Section 16.07) and (b)
rights of Colocates to use the Premises in connection
with Tenant's internet data center and communications
business, subject to compliance with the terms of this
Lease. Tenant shall have access to the Premises at all
times 24 hours a day, 7 days a week, 365 days a year,
subject to the terms of this Lease. Landlord represents
that its fee title insurance policy for the Land
contains the ALTA 3 endorsement that is attached hereto
as Exhibit E. Following completion of the exterior of
the Building and the parking facilities (which need not
be striped for these purposes) to be constructed on the
Land, and all other zoning requirements and requirements
of the title insurance company's underwriters have been
satisfied, Landlord will obtain a zoning endorsement 3.1
from its title insurance company.
The foregoing Basic Lease Information is hereby incorporated into and made a
part of the Lease. Each reference in the Lease to any information and
definitions contained in the Basic Lease Information shall mean and refer to the
information and definitions hereinabove set forth.
VIRGINIA LEASE 1
DEED OF LEASE
THIS DEED OF LEASE (this "Lease"), dated as of the date specified in
the Basic Lease Information, is made by and between Landlord and Tenant. This
Lease is made upon the following terms, covenants, conditions, provisions and
agreements, all of which Tenant or Landlord, as the case may be, covenants and
agrees to keep, observe and perform.
ARTICLE 1
PREMISES
Landlord leases the Premises to Tenant, and Tenant leases the Premises
from Landlord, for the Term (as defined in Article 2).
ARTICLE 2
TERM
Section 2.01. The term of this lease (the "Term") shall begin on the
date Landlord has tendered possession of the Premises to Tenant with the
Landlord's Work (as defined in Section 4) substantially completed (the
"Commencement Date"), and unless sooner terminated, shall end at 11:59 p.m. on
the Expiration Date. Tenant shall have access to the Premises to perform
Tenant's initial construction from and after Landlord's closing in of the
Building and completion of those items of Landlord's Work which will not be
materially adversely affected by the performance by Tenant of its initial
construction, upon prior notice to Landlord, subject to compliance with all of
the terms of this Lease as if the Commencement Date had occurred (except with
respect to the payment of Annual Base Rental, Impositions, and utilities, except
to the extent Tenant has caused same to be provided or utilized or Tenant has
requested same). In the event a "Tenant Delay" (as hereinafter defined) delays
substantial completion of Landlord's Work, then substantial completion of
Landlord's Work shall be deemed accelerated by one day for each day of such
Tenant Delay. Tenant Delay shall mean any delay which results from any act or
omission of Tenant, its agents, employees or contractors, including delays due
to changes in or additions to, or interference with any work to be done by
Landlord, or delays by Tenant in submission of information approving working
drawings or estimates or giving authorizations or approvals, as reasonably
determined in good faith by Landlord's licensed architect.
Section 2.02. Provided Tenant performs all of Tenant's obligations
under this Lease, including the payment of Rental (as defined in Article 5),
Tenant shall, during the Term, enjoy the Premises without disturbance from
Landlord or any other persons claiming or acting by, through, or under Landlord;
subject, however, to the terms of this Lease. This covenant and all other
covenants of Landlord now or hereafter in this Lease shall be binding upon
Landlord and its successors only with respect to breaches based on Landlord's
acts or omissions occurring during its and their respective ownership of
Landlord's interest hereunder.
Section 2.03. Landlord shall notify Tenant of the Commencement Date, as
such date is determined in accordance with the terms set forth in Section 2.01,
and within fifteen (15) days after delivery of such notice Landlord and Tenant
shall execute a written instrument substantially in the form of Exhibit C,
attached hereto, confirming such date as the Commencement Date. Any failure of
the parties to execute such written instrument shall not affect the validity of
the Commencement Date as determined as aforesaid.
Section 2.04. In the event the Commencement Date has not occurred on or
before February 1, 2001 (the "Outside Date") as such date may be extended on a
day for day basis to and including June 1, 2001 (the "Final Outside Date"), for
circumstances outside Landlord's reasonable control, including any Tenant
Delays, Tenant may cancel this Lease upon notice to Landlord provided and on
condition that (i) a material Event of Default is not then existing, (ii) Tenant
notified Landlord of such cancellation within 30 days after the Final Outside
Date, as such date may be extended by a Tenant Delay only, as aforesaid (time
being of the essence with respect to such notice). For greater clarity the Final
Outside Date may be extended on a day for day basis as a result of Tenant Delays
only. In the event Tenant terminates this Lease pursuant to this Section 2.04,
Landlord shall return to Tenant the first month's rent check and Security
Deposit (or portion thereof which has not been applied by Landlord pursuant to
the terms of this Lease) delivered to Landlord prior thereto, within thirty (30)
days after the effective date of termination, and the Tenant has vacated the
Premises and removed its property therefrom.
ARTICLE 3
RENEWAL OPTIONS
Section 3.01. Tenant shall have and is hereby granted two (2)
successive options to renew or extend the Term (the "Renewal Term") for
additional periods of five (5) years each (the "Renewal Periods"). The First
Renewal Term shall commence on the day immediately following the Expiration Date
and shall expire on the 5th anniversary of the Expiration Date, and if
applicable the second and final Renewal Term shall commence on the day following
the 5th anniversary of the Expiration Date and end on the 10th anniversary of
the Expiration Date. Each renewal option shall be exercisable by Tenant by
giving written notice of the exercise of such renewal option to Landlord at
least twelve (12) months prior to the expiration of (i) the initial Term, in the
case of the first such renewal option, and (ii) the first Renewal Period, in the
case of the second such renewal option (time being of the essence with respect
to the delivery of said notice). Except as otherwise expressly provided herein,
each Renewal Period shall be upon the same terms, covenants and conditions as
set forth herein with respect to the Term, including, without limitation, the
payment of Annual Base Rent and Additional Rent hereunder. All references in
this Lease to the Term shall be construed to mean the initial Term and the
Renewal Period or Periods, unless the context clearly indicates that another
meaning is intended. For purposes of this Lease, no distinction is made between
the terms "extend" and "renew," or any variations thereof.
Section 3.02. The Annual Base Rent payable for the Premises during the
Renewal Periods shall be as stated in the Basic Lease Information.
Section 3.03. Neither of the Renewal Options referred to in Section
3.01 above may be exercised by Tenant if, at the time specified in Section 3.01
for exercising such option, (i) this Lease shall not be in full force or effect
(ii) a monetary or material non-monetary Event of Default (as defined in Section
21.01) shall have occurred and shall be continuing or (iii) this Lease has been
assigned or more than 50% of the Premises has been sublet, except for an
assignment or subletting to a "Related Entity" (as hereinafter defined) or as
otherwise provided in Section 16.07. If Tenant shall fail to exercise either
Renewal Option during the time or in the manner provided in Section 3.01 for the
exercise thereof, or if at the time specified for the exercise of such Renewal
Option Tenant shall not be entitled to exercise such option because of the
provisions of this Section, then, and in either such event, such Renewal Option,
and any additional Renewal Option, shall be absolutely void and of no force or
effect. In addition, if Tenant failed to timely exercise the first Renewal
Option, then Tenant shall have no right to exercise the second Renewal Option.
ARTICLE 4
ACCEPTANCE OF THE PREMISES BY TENANT
Landlord shall perform the work described in Exhibit D attached hereto
and the items of work set forth on plans and specifications (with handwritten
notations) prepared by Landlord's architect for the Building (a copy of which
has been delivered to Tenant) which do not conflict with the items set forth on
Exhibit D (the "Landlord's Work"). Except as otherwise expressly provided
herein, Tenant agrees to accept the Premises, Building and Land in its "as is"
condition. Landlord shall not modify Landlord's Work beyond a de minimis extent
without Tenant's prior approval which shall not be unreasonably withheld or
delayed. Such consent shall not be withheld to changes required by applicable
laws or regulations in the event that same will not materially adversely affect
Tenant's Permitted Use of the Premises. Tenant shall respond to requests for
approval to any such modifications within ten (10) Business Days after receipt
of applicable plans or specifications therefor. Except with respect to the
performance of Landlord's Work and as otherwise expressly set forth in the
Lease, Tenant acknowledges that Landlord has not made, nor shall Landlord be
deemed to have made, any warranty or representation, express or implied, with
respect to the Premises, including any warranty or representation as to its
fitness for use or purpose, design or condition for any particular use or
purpose, availability of data cabling or connections or as to value,
merchantability, quality, description, durability or operation, it being agreed
that all risks incident thereto are to be borne by Tenant. On the Commencement
Date, Landlord's Work shall be lien free and Landlord shall have paid all
applicable governmental taxes then due by Landlord with respect to Landlord's
Work, subject to Landlord's good faith right to contest bills and other charges
incurred in connection with Landlord's Work. Upon request, Landlord shall
deliver to Tenant a copy of the final Building drawings and plans used by
Landlord to construct the Building, and a set of "as-built" drawings upon
completion of Landlord's Work. In the event of any defect or deficiency in the
Premises of any nature, whether patent or latent, Landlord shall not (except as
otherwise expressly provided herein) have any responsibility or liability with
respect thereto or for any incidental or consequential damages (including strict
liability in tort). Subject to Landlord's representations herein, taking
possession of the Premises by Tenant shall be conclusive evidence that Tenant:
(a) accepts the Premises as suitable for the purposes for which they are leased;
(b) accepts the Building and every part and appurtenance thereof as being in a
good and satisfactory condition; and (c) waives any defects in the Premises or
the Building except latent defects in Landlord's Work. Subject to Landlord's
representations herein, Landlord shall not be liable, except for gross
negligence or willful misconduct, to Tenant or any of Tenant's agents,
employees, licensees, servants, or invitees for any injury or damage to person
or property due to the condition or design of or any defect in the Building or
its mechanical systems and equipment which may exist or occur; and Tenant, for
itself and its agents, employees, licensees, servants, and invitees, expressly
assumes (except as otherwise expressly provided herein) all risks of injury or
damage to person or property, either proximate or remote, resulting from the
condition of the Premises or the Building. Landlord represents that (i)
Landlord's Work shall be performed in compliance with all applicable laws, codes
and regulations (ii) the Premises shall be delivered in material compliance with
all applicable laws, codes, and regulations (except to the extent non-compliance
results from the acts or omissions of Tenant, its agents, employees or
contractors) and free of Hazardous Materials (as hereinafter defined) except
those materials which are customary for the type of Building constructed and
equipment installed therein or thereon or which were brought on the Land by or
on behalf of Tenant, its agents, employees or contractors and (iii) all off-site
improvements on the Land necessary for Tenant to obtain its certificate of
occupancy as stated below, shall have been completed.
ARTICLE 5
RENTAL
Section 5.01. Commencing on the Rent Commencement Date, Tenant shall
pay to Landlord monthly, in advance, without demand, on the first day of each
calendar month during the Term, an annual rental ("Annual Rental") in an amount
equal to 1/12 of the Annual Base Rent specified in the Basic Lease Information.
The first monthly installment of Annual Base Rent shall be payable in advance by
Tenant on the date of execution of this Lease. If the Commencement Date is a
date other than the first day of a calendar month, then the monthly installment
of Rental for the first month for which rent is owing, being a fractional month,
shall be appropriately prorated based on the number of days in such month, and
shall be paid to Landlord in addition to the Annual Rental for the 12-month
period commencing on the first day of the month following the month in which the
Commencement Date occurs. If the Expiration Date is a date other than the last
day of a calendar month, then the monthly installment of Rental for the last
month for which rent is owing, being a fractional month, shall be appropriately
prorated.
Section 5.02. All Rental shall be paid to Landlord by Tenant when due,
without deduction, offset or counterclaims (except as otherwise expressly
provided for herein), in lawful money of the United States, at Landlord's
Address for Notices as specified in the Basic Lease Information, or such other
place as Landlord may from time to time designate in writing. The term "Rental"
as used herein means the then applicable Annual Rental and all other sums
payable by Tenant under this Lease. All installments of Rental within five (5)
days after same is due shall bear interest from the date due until paid at a
rate per annum equal to fifteen percent (15%); provided, however, that any
interest payable pursuant to this Section 5.02 shall never exceed the Highest
Lawful Rate. The term "Highest Lawful Rate" as used herein shall mean the
maximum rate of interest from time to time permitted to be charged under
applicable law to Tenant with respect to the indebtedness for which such
interest is charged under this Lease.
Section 5.03. If Tenant fails to make any payment of Rental within five
(5) days after the date on which such payment is due, Tenant shall also pay to
Landlord on demand a late payment service charge (to cover Landlord's
administrative and overhead expenses of processing late payments) equal to five
percent (5%) of such unpaid sum. Such payments shall not excuse the untimely
payment of rent.
Section 5.04. No payment by Tenant or receipt by Landlord of a lesser
amount than the amounts herein stipulated shall be deemed to be other than on
account of the earliest stipulated rent, nor shall any endorsement or statement
on any check or letter accompanying a check for payment of rent be deemed an
accord and satisfaction and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or to pursue
any other remedy provided in this Lease. Tenant shall pay Landlord upon demand
the sum of Fifty Dollars ($50.00) for each of Tenant's checks returned to
Landlord not paid for insufficient funds or other reasons not the fault of
Landlord, to cover Landlord's costs in handling such returned items, and, upon
request by Landlord, Tenant shall pay all future sums due hereunder to Landlord
in the form of certified or cashier's checks or money orders. The foregoing
returned check charge represents the parties' reasonable estimate as of the date
hereof of the extra expenses that Landlord will incur in processing returned
checks, the exact amount of such charges being difficult to ascertain, and such
charge shall not be considered interest.
ARTICLE 6
IMPOSITIONS
Section 6.01. Tenant shall pay all Impositions (as defined in Section
6.02 herein) attributable to the Term (and Renewal Term(s), as applicable), as
additional rent hereunder before any fine, penalty, interest or cost may be
added for non-payment. Tenant agrees to furnish to Landlord, within thirty (30)
days after written demand therefor, proof of the payment of all Impositions
which are payable by Tenant as provided in this Article 6. In the event that any
Imposition becomes due and payable during the Term and may be legally paid in
installments, Tenant shall have the option to pay such assessment (including
without limitation all assessments for public improvements or benefits) in
installments, and in such event, Tenant shall be liable only for those
installments which become due and payable during the Term, with appropriate
proration in the case of fractional years. Any Impositions which are
attributable in part to the Term shall be equitably apportioned between Landlord
and Tenant.
Section 6.02. As used herein, the term "Impositions" means all taxes,
assessments, and other governmental charges applicable to the Land, the
Building, or any portion thereof, or to any personal property used in connection
therewith, whether federal, state, county, municipal or other authority, water
and sewer rents, rates and charges, vault taxes, excises, levies, license fees,
permit fees, inspection fees and other authorization fees and other charges or
other costs of any nature whatsoever, in each case whether general or special,
ordinary or extraordinary, foreseen or unforeseen, of every character (including
all interest and penalties thereon unless attributable to the acts of Landlord),
which at any time during or in respect of the Term may be assessed against,
levied upon, confirmed or imposed on, or in respect of or to be a lien upon (i)
the Premises or any part thereof, or any estate, right or interest therein, (ii)
occupancy, use or possession of or activity conducted on the Premises or any
part thereof, (iii) any Rental or other sum reserved or payable by Tenant
hereunder, or (iv) this Lease, or Landlord in respect of this Lease or the
Premises. Impositions shall not include Landlord's income, succession or other
taxes personal to Landlord and not applicable to the Land or Building, or any
recordation or other similar charges.
Section 6.03. Tenant shall, at Tenant's cost, provide for adequate
management of the Building and Land. Any firms, vendors or contractors hired or
used by Tenant to maintain the generators and electrical equipment, connections
and facilities (as applicable) are subject to Landlord's reasonable approval.
Section 6.04. Notwithstanding the foregoing, Impositions billed
directly to Landlord shall be payable by Landlord to the applicable third party,
provided Tenant shall reimburse Landlord for the cost thereof or amount payable
by Landlord to such third party within thirty (30) days after demand (which
demand shall be accompanied by reasonable substantiation of such Imposition
amount). Landlord shall provide Tenant with a copy of Landlord's payment within
30 days after same is paid. Landlord shall not bill Tenant more than 30 days in
advance of the date the applicable payment is due to the particular third party.
ARTICLE 7
UTILITIES
Section 7.01. Except as otherwise expressly provided below, Tenant
shall cause to be provided to the Building all applicable utility services
necessary for the operation of Tenant's business therein throughout the Term and
Tenant shall timely pay for the cost of such services directly to the service
provider. Subject to Section 7.02, Tenant shall pay as additional rent hereunder
all utility charges imposed upon Landlord, with respect to utilities furnished,
available or applicable to the Premises and the Lease Term (including, without
limitation charges from the local electrical provider) whether accruing or
imposed upon Landlord prior to or after the Commencement Date) within thirty
(30) days after substantiated demand. Subject to the terms of Section 7.02,
utility charges that Tenant shall be responsible for paying shall include,
without limitation, all up-front fees, construction and equipment fees,
reservation fees, excess and minimum usage fees, hook-up charges, charges for
installation or modification of vault rooms and/or transformer panels, monthly
fees, and charges for use. Tenant hereby acknowledges and agrees that to the
extent Landlord has the right to assign to Tenant Landlord's interest in the
electric services agreement to be entered into between the applicable electrical
service provider and Landlord with respect to the furnishing of electricity to
the Building for Tenant's consumption, at Landlord's request, Tenant shall
promptly execute any reasonable and customary agreement provided by Landlord to
effectuate such transfer and Tenant's failure to execute such documentation
shall constitute a material default hereunder (after applicable notice and cure
rights have expired). Landlord shall cooperate with Tenant (at no cost or
expense to Landlord) in connection with Tenant's efforts to obtain, at Tenant's
sole expense, excess power and/or a redundant power supply to the Building from
the local utility as reasonably required by Tenant for its business operations
from the Building.
Section 7.02. In connection with Landlord's Work, Landlord shall, at
Landlord's sole cost, (i) be responsible for reserving from the applicable
service provider, 6.5 MVA of electric power to serve the Building and (ii)
provide sewer and plumbing connections to the Building and electric connections
for 6.5 MVA of power to the Building distribution boards as specified in Exhibit
D otherwise or to a location mutually agreed upon by Landlord and Tenant.
Landlord shall also pay the up-front fees applicable to the 6.5 MVA designated
to serve the Building.
ARTICLE 8
USE
The Premises shall be used only for the Permitted Use (as defined in
the Basic Lease Information) and for no other purpose. Tenant agrees to use and
maintain the Premises in a clean, careful, safe, lawful, and proper manner.
Tenant shall not use the Premises, nor suffer the Premises to be used (i) to
create any nuisance or trespass; (ii) to annoy or embarrass Landlord; or (iii)
for any disruptive, harassing or outrageous conduct. Tenant shall not commit
waste, overload the floors or structure of the Building beyond the capacity
shown on Exhibit D. Use of the Premises is subject to all covenants, conditions
and restrictions of record. Tenant shall not permit any objectionable odors or
noises to emanate from the Premises.
ARTICLE 9
LAWS, ORDINANCES, AND REQUIREMENTS OF PUBLIC AUTHORITIES
Section 9.01. Subject to Tenants' right to occupy the Premises for the
Permitted Use in accordance with the terms of this Lease, Tenant shall not use
or occupy or permit the Premises to be used or occupied, nor do or permit
anything to be done in or on the Premises, in whole or in part, in a manner
which would in any way violate any certificate of occupancy affecting the
Premises, or make void or voidable, or except to a de minimis extent, increase
the rate of any insurance then in force with respect thereto, or which may make
it difficult or impossible to obtain fire other insurance thereon required to be
furnished by Tenant hereunder, or will cause or be apt to cause structural
injury to the Building or any part thereof, or as will constitute a public or
private nuisance. Any certificate of occupancy or similar permit required with
respect to Landlord's Work shall be obtained by Landlord prior to Tenant's
occupancy of the Premises for the conduct of its business, but after substantial
completion of Tenant's initial work (unless Landlord is unable to obtain same as
a result of the acts or omissions of Tenant, or its agents, employees or
contractors), then as soon as reasonably practicable, at Landlord's expense.
Tenant shall obtain at its expense any certificate of occupancy or similar
permit or certificate that may be required for Tenant to lawfully occupy and
conduct business from the Premises. Copies of such permits and certificates
shall be delivered to Landlord upon receipt by Tenant.
Section 9.02. Except with respect to violations existing as of the
Commencement Date, Tenant shall, at its sole expense, (i) comply with all laws,
orders, ordinances, and regulations of Federal, state, county, municipal and
other authorities having jurisdiction over the Premises ("Legal Requirements"),
applicable to the Premises, Building, Land and/or Tenants' use and occupancy
thereof, (ii) comply with any direction made pursuant to law by any public
officers requiring abatement of any nuisance, or which imposes upon Landlord or
Tenant any duty or obligation arising from Tenant's occupancy or use of the
Premises, alterations or equipment installed therein or thereon by Tenant,
and/or from conditions which have been created by or at the insistence of
Tenant, and (iii) indemnify Landlord and hold Landlord harmless from any loss,
cost, claim, or expense which Landlord may incur or suffer by reason of Tenant's
failure to comply with its obligations under clauses (i) or (ii) above and the
provisions of Article 26 below. If Tenant receives notice of any such direction
or of violation of any such law, order, ordinance, or regulation, it shall
promptly notify Landlord thereof. Tenant shall not be responsible for complying
with violations arising from the performance by Landlord of Landlord's Work or
in connection with Hazardous Materials existing on the Land or in the Building
as of the Commencement Date, and subject to the limitations contained in this
Lease, Landlord shall be responsible for same, and shall indemnify Tenant and
hold Tenant harmless against any loss, cost, claim or expense which Tenant
incurs as a result of such non-compliance by Landlord. Notwithstanding the
foregoing, to the extent that Tenant's aforesaid compliance obligations do not
arise out of the acts or omissions of Tenant, its agents, employees or
contractors, or alterations, improvements, additions or equipment installed by
Tenant in or about the Premises, or Land, and such compliance requires changes
to the structural components of the Building, Tenant shall be responsible for an
amount equal to the cost of such compliance multiplied by the fraction the
numerator of which is the number of months then remaining in the Lease Term (as
same may have been renewed at the time the improvement is completed) and the
denominator of which is the total number of months in the Lease Term, unless
such compliance occurs during a Renewal Term, then the denominator shall be 180,
and Landlord shall be responsible for the balance, which shall be payable by
Landlord within 30 days after demand and reasonable substantiation of Tenant's
payment therefor. This Section 9.02 is subject to the provisions of Article 14.
ARTICLE 10
ALTERATIONS
Section 10.01. Tenant may not, at any time during the Term, without
Landlord's prior written consent (except as otherwise expressly provided below),
make any alterations to the Premises. Landlord shall not unreasonably withhold
its consent to any proposed alteration, provided, however, that Landlord may
withhold, condition or delay its consent in its sole and absolute discretion to
any proposed alteration which in Landlord's reasonable judgment may adversely
(except to a de minimis extent) affect the structure or safety of the Building
or adversely (except to a de minimis extent) affect the electrical, HVAC,
plumbing, mechanical or fire and life safety systems or the functioning thereof.
Landlord's consent shall not be required for interior non-structural alterations
not materially affecting Building systems and costing less than $250,000 in the
aggregate per project; provided, however, Tenant must provide Landlord with at
least ten (10) days prior written notice of any such alterations. Landlord shall
respond to requests for consent within ten (10) Business Days after receipt of
final (reasonably detailed) plans and specifications with respect to the
alterations in question. If Tenant desires to make any alterations in or to the
Premises, Tenant shall, prior to beginning any such work, deliver to Landlord
all plans or drawings and specifications therefor (provided, however, with
respect to alterations not requiring Landlord's consent, then only to the extent
same have been prepared). Upon Tenant's receipt of Landlord's written approval
and upon Tenant's paying to Landlord the actual reasonable charge incurred by
Landlord, if any, for the review of such plans and specifications by third party
consultants, Tenant may proceed to the construction of the alterations provided
that the alterations are in strict compliance with the plans and specifications
submitted to Landlord and with the provisions of this Article 10. Any change to
the approved plans and specifications shall require Landlord's prior written
consent which shall not be unreasonably withheld, conditioned or delayed. Tenant
agrees to indemnify and hold Landlord harmless against and from any and all
claims, damages, costs and fines arising out of or connected with such
alterations (except to the extent attributable to Landlord's acts (which does
not include approving such alteration and reviewing plans in connection
therewith) or to any requirements of Landlord) and Tenant shall procure at its
own expense such governmental approvals and permits as may be required for such
alterations, and Tenant shall provide Landlord with copies of all such approvals
and permits prior to commencing work. All alterations shall be made at Tenant's
expense, by contractors which have been approved by Landlord (to the extent
Landlord's approval is required as set forth above, for the alteration in
question), which approval shall not be unreasonably withheld, conditioned or
delayed, and Tenant shall pay all bills from contractors and subcontractors
promptly when due. All such construction, alterations, and maintenance work done
by, or for, Tenant shall (i) be performed in such a manner as to maintain
harmonious labor relations in the Building and the Project and to minimize
interference with work performed by Landlord in the Building, (ii) comply with
all building, safety, fire, plumbing, electrical, and other codes and
governmental and customary insurance requirements, (iii) be completed promptly
and in a good and workmanlike manner, and (iv) be performed in compliance with
Article 11 hereof. Landlord may as a condition to approving any alteration,
require Tenant to remove same at the expiration of the Term, except with respect
to customary interior, non-structural alterations. Provided no Event of Default
is then occurring, Tenant may remove the following items of improvements,
equipment and/or property of Tenant or Collocates (unless installed by Landlord,
at Landlord's expense) from the Building, at Tenant's sole expense all HVAC
units on the Premises, including, without limitation, fan units located outside
the Building; generators and associated paralleling synchronous switching
equipment; FM 200 and gas canisters; power distribution modules; batteries for
uninterrupted power system (UPS batteries), UPS modules; overhead cable
management system; all personalty, including without limitation all equipment
mounting racks and cabinets, partition wall (cages), furnishings and any other
items constituting leasehold improvements which Landlord and Tenant agree shall
be removable, subject to compliance with the other provisions of this Lease,
including, without limitation, repairing any damage to the Building caused by or
arising from such removal.
Section 10.02. After the completion of any alterations to the Premises,
Tenant shall deliver to Landlord either (i) a certificate signed by Tenant
stating that such alterations have been completed in accordance with the plans
and specifications previously delivered to Landlord or (ii) a copy of "as-built"
plans and specifications with respect to such alterations.
Section 10.03. The Premises and all installations thereto and equipment
installed therein shall at all times be free of liens for labor and materials
supplied or claimed to have been supplied to the Premises, subject to the terms
of Article 28 below.
Section 10.04. Tenant agrees to furnish Landlord, before any contractor
commences work on the Premises, certificates of Workmen's Compensation insurance
and general liability insurance with combined single limit of not less than
Three Million Dollars ($3,000,000.00) for the benefit of Landlord and such other
insurance as Landlord may reasonably require, provided same is consistent with
insurance obligations of comparable tenants in comparable buildings in the
vicinity of the Building. All such insurance shall be in addition to the
insurance required under Article 13 and shall be with companies of recognized
responsibility reasonably satisfactory to Landlord. Tenant shall provide
evidence reasonably satisfactory to Landlord that all premiums for such
insurance have been paid in full.
Section 10.05. All alterations, leasehold improvements, and other
physical additions made or installed by or for Tenant in or to the Premises,
including without limitation, generators, fuel tanks and HVAC equipment, shall
not be removed without Landlord's prior written consent (except to the extent
same are being upgraded or replaced with other comparable equipment) and shall,
except as provided above in Section 10.01 or in this Section 10.05, be
surrendered to Landlord at the expiration of the Term. At the expiration of the
Term, Tenant shall remove Tenant's furniture, furnishings, personal property,
and movable trade fixtures, together with those alterations, improvements and/or
additions that Landlord may designate for removal upon approval of the plans
therefor (where Tenant is required to submit plans depicting such alterations,
improvements and/or additions to Landlord for consent), and Tenant shall repair
in a good and workmanlike manner any damage to the Building and/or Premises
caused by such removal.
ARTICLE 11
LIENS
Subject to Article 28 below, Tenant shall keep the Premises free from
any liens arising from any work performed, materials furnished, or obligations
incurred by or at the request of Tenant. All persons either contracting with
Tenant or furnishing or rendering labor and materials to Tenant shall be
notified in writing by Tenant that they must look only to Tenant for payment.
Nothing contained in this Lease shall be construed as Landlord's consent to any
contractor, subcontractor, laborer, or materialman for the performance of any
labor or the furnishing of any materials for any specific improvement,
alteration, or repair of, or to, the Premises, nor as giving Tenant any right to
contract for, or permit the performance of, any services or the furnishing of
any materials that would result in any liens against the Premises. If any lien
is filed against the Premises or Tenant's leasehold interest therein, arises out
of any purported act or agreement of Tenant, Tenant shall discharge (by bonding
over or other appropriate means of legal discharge) the same within thirty (30)
days after notice from Landlord or such lien or whichever occurs first, of its
filing. If Tenant fails to discharge such lien within such period, then, in
addition to any other right or remedy of Landlord, Landlord may, at its
election, discharge the lien by paying the amount claimed to be due, by
obtaining the discharge by deposit with a court or a title company, or by
bonding. Tenant shall pay on demand any amount paid by Landlord for the
discharge or satisfaction of any such lien, and all reasonable attorneys' fees
and other costs and expenses of Landlord incurred in defending any such action
or in obtaining the discharge of such lien, together with all necessary
disbursements in connection therewith.
ARTICLE 12
REPAIRS
Section 12.01. Except as otherwise provided herein, Tenant shall, at
its sole expense, keep the Premises and every part thereof, including without
limitation, the structure (including the roof) and the mechanical, electrical
and plumbing systems of the Building (including generators), the heating,
ventilating and air-conditioning systems (the "HVAC") serving the Building, and
the parking area of the Building, in good condition and repair at all times
during the Term. Landlord shall be responsible for repairing at its own cost
latent defects in (i) Landlord's Work and (ii) other repairs made by Landlord
pursuant to the terms of this Lease, to the extent same adversely affect (beyond
a de minimis extent) Tenant's use of the Premises for the Permitted Use. If
Tenant fails to make such repairs or perform other obligations under this Lease
after notice and expiration of applicable cure periods (except no notice is
required in cases of emergency), Landlord, at its option, may make such repairs
or perform such other obligations, and Tenant shall pay Landlord on demand
Landlord's actual costs in making such repairs or perform such other obligations
plus ten percent (10%) of such costs for Landlord's overhead. Except as
otherwise expressly provided in this Lease, Landlord shall not be required to
maintain, repair or rebuild, or to make any alteration to the Premises or any
part thereof, whether ordinary or extraordinary, structural or non-structural,
foreseen or unforeseen, or to maintain the Premises or any part thereof in any
way. Except as otherwise expressly provided in this Lease to the contrary,
Landlord has no obligation and has made no promise to alter, remodel, improve,
repair, redecorate, or paint the Premises or any part thereof. Notwithstanding
the foregoing, except with respect to latent defects, Landlord shall repair
Landlord's Work, the cost of which shall be (i) entirely paid by Tenant to the
extent the repair arises out of the acts or omissions of Tenant, its agents,
employees or contractors, or alterations, improvements, additions or equipment
installed by Tenant in or about the Premises, or Land, otherwise (ii) the amount
payable by Tenant shall equal the cost of such repair multiplied by the fraction
the numerator of which is the number of months then remaining in the Lease Term
(as same may have been renewed at the time the repair is completed) and the
denominator of which is the total number of months in the Lease Term (unless
such repair occurs during a Renewal Term then the denominator shall be 180), and
Tenant shall pay Landlord for the cost of such repair within thirty (30) days
after substantiated demand.
Section 12.02. Tenant hereby covenants that, throughout the Term, it
shall maintain, at its sole cost and expense, service contracts for the
maintenance and repair of all HVAC equipment and all generators in or about the
Building. Tenant shall, upon Landlord's request, provide copies of all service
contracts affecting the generator(s), and any applicable renewal contracts
thereto, to Landlord, within thirty (30) days of receipt of such service
contracts. All service contracts shall be in form and substance reasonably
acceptable to Landlord.
Section 12.03. Landlord agrees to assign to or cause Tenant to benefit
from any warranties provided to Landlord in connection with Landlord's Work,
including warranties on the roof, generator, Liebert units and electrical
distribution switchboards installed by Landlord, as Tenant may deem reasonably
necessary to effectuate its repair obligations pursuant to the terms of this
Lease.
ARTICLE 13
INSURANCE
Section 13.01. During the Term, Tenant, at its sole expense, shall
obtain and keep in force the following insurance:
(a) All-Risk insurance upon (i) the Tenant's improvements, alterations,
additions, fixtures, equipment (including generators installed by Landlord) and
Tenant's property, (ii) all property of every description and kind owned by
Tenant and located in the Building or for which Tenant is legally liable and
(iii) installations by or on behalf of Tenant, including without limitation,
furniture, fittings, installations, furnishings, movable trade fixtures and
personal property, and alterations (collectively referred to as "Tenant Insured
Items"), in an amount not less than one hundred percent (100%) of the full
replacement value thereof, with an endorsement insuring against code compliance.
All such insurance policies contain a waiver of subrogation in favor of
Landlord. Landlord shall be required to carry all-risk insurance solely on
Landlord's Work (except the generator installed by Landlord) in an amount not
less than 100% of the full replacement value thereof within an endorsement
insuring against code compliance. Tenant shall pay the reasonable cost of
Landlord's insurance premiums applicable to the aforementioned all-risk policy
within thirty (30) days after demand.
(b) Commercial general liability insurance coverage, including personal
injury, bodily injury, broad form property damage, operations hazard, owner's
protective coverage, contractual liability, and products and completed
operations liability, in limits not less than $3,000,000 inclusive. All such
insurance policies shall name Tenant as named insured thereunder and shall name
Landlord and Landlord's mortgagees (and, if requested by Landlord, ground or
primary lessors) as additional insureds thereunder, all as their respective
interests may appear.
(c) Worker's Compensation and Employer's Liability insurance as
required by law.
(d) Business interruption insurance covering the risks described in
Article 14 in an amount not less than the Annual Base Rent and the estimated
Impositions and additional rent hereunder for twelve (12) months.
(e) Any other form or forms of commercially reasonable insurance as
Landlord may reasonably require from time to time in form, in amounts and for
insurance risks against which a prudent tenant of comparable size and in a
comparable business would protect itself.
All Tenant's insurance policies which may be blanket policies (provided
the limits of coverage for the Premises are satisfied) shall be issued by
insurers that are reasonably acceptable to Landlord and in form reasonably
satisfactory to Landlord. Landlord's insurance policies covering Landlord's Work
shall be consistent with customary policies of comparable owners of comparable
buildings in the immediate vicinity insuring similar items and with the
requirements of Section 13.01. Tenant will deliver standard insurance industry
certificates of insurance to Landlord as soon as practicable after the placing
of the required insurance, but not later than ten (10) days prior to the date
Tenant takes possession of all or any part of the Premises. All policies shall
be written as primary insurance coverage and contain an undertaking by the
insurers to notify the other and the other's named mortgagees securing an
interest in the Premises or items installed therein, as the case may be (and, if
applicable, ground lessors) in writing, by certified or registered United States
mail, return receipt requested, not less than thirty (30) days before any
material adverse change, reduction in coverage, cancellation, or other
termination thereof. Landlord shall furnish Tenant with proof of Landlord's
insurance coverage within 30 days after written request by Tenant (provided
requests shall not be made more than once a year).
Section 13.02. Tenant will not keep, use, sell, or offer for sale in or
upon the Premises any article which may be prohibited by any insurance policy in
force covering the Project and the Leasehold Improvements which shall be used by
Tenant other than in connection with Tenant's Permitted Use in accordance with
the terms of this Lease. Tenant shall promptly comply with all reasonable
requirements of the insurance authority or any present or future insurer
relating to the Premises and/or Building, provided that with respect to
Landlord's insurer, such requirements shall not materially increase Tenant's
obligations under this Lease, to the extent Tenant is in compliance with the
material terms of this Lease.
Section 13.03. If Landlord's all-risk insurance policy described above
shall be canceled or cancellation shall be threatened or the coverage thereunder
reduced or threatened to be reduced in any way because of the use of the
Premises or any part thereof by Tenant or any assignee or subtenant of Tenant or
by anyone Tenant permits on the Premises (except with respect to the Permitted
Use in accordance with the terms of this Lease) and if Tenant fails to remedy
the condition giving rise to such cancellation, threatened cancellation,
reduction of coverage, or threatened reduction of coverage within 48 hours after
notice thereof, Landlord may, at its option, enter upon the Premises and attempt
to remedy such condition, and Tenant shall promptly pay the reasonable cost
thereof to Landlord as additional Rental. Landlord shall not be liable for any
damage or injury caused to any property of Tenant or of others located on the
Premises resulting from such entry. If Landlord is unable, or elects not, to
remedy such condition or if Tenant fails to maintain any insurance required by
this Lease, then in either such event Landlord shall have all of the remedies
provided for in this Lease in the event of a default by Tenant. If Landlord
fails to carry the insurance required herein, Tenant may (but shall not be
obligated to) upon prior notice to Landlord and Landlord's failure to furnish
Tenant with proof of coverage within 30 days after such notice, obtain such
insurance at Tenant's cost.
Section 13.04. All policies covering real or personal property or
equipment which Tenant and Landlord obtain affecting the Premises or the
Building shall include a clause or endorsement denying the insurer any rights of
subrogation against the other to the extent rights have been waived by the
insured before the occurrence of injury or loss and the parties hereby waive all
such rights against the other with respect to their work and installations.
Landlord and Tenant shall not be liable for or responsible to, and hereby
releases the other, and its partners, employees, officers, directors and agents
from any and all liability and responsibility to the other, or any person
claiming by, through or under them, by way of subrogation or otherwise for any
damage or loss to Landlord's or Tenant's property, as applicable, due to hazards
covered (or which should be covered) by policies of insurance obtained or which
should be or have been obtained pursuant to this Lease (and with respect to
Landlord, hazards that would be covered by customary insurance carried by
comparable owners of comparable buildings in the vicinity of the Building), to
the extent of the injury or loss covered or which should have been covered
thereby, assuming that any deductible shall be deemed to be insurance coverage.
ARTICLE 14
DAMAGE BY FIRE OR OTHER CASUALTY
Section 14.01. If the Building and/or the Premises or any portion
thereof is damaged by any casualty which is or would be covered by customary
comprehensive all risk commercial insurance policies carried by prudent tenants
net leasing comparable buildings, Tenant shall promptly notify Landlord of the
same and Tenant shall promptly and diligently repair such damage and restore and
rebuild the Building and/or Premises in compliance with applicable codes and to
substantially the same condition as the Premises were in immediately prior to
such damage, except as otherwise set forth below. Notwithstanding the foregoing,
in the event the Landlord's Work is damaged by any casualty which is or would be
carried by customary comprehensive all risk insurance policies carried by
prudent owners of comparable buildings, Landlord shall promptly and diligently
repair such damage to Landlord's Work in compliance with applicable codes and to
substantially the same condition as immediately prior to such damage, except as
otherwise provided below. Such repair and restoration work shall be diligently
commenced and prosecuted by Tenant and Landlord, as applicable, until full
completion thereof, and shall be performed substantially in accordance with the
provisions of Articles 10 and 11. In the event the insurance proceeds available
to Tenant or Landlord (if applicable) are not adequate to pay for the full cost
of the repair and restoration work required to be performed by such party, then
such deficiency shall be paid by the party obligated to perform the work. In no
event shall either party be required to pay, in respect of such repair and
restoration, an amount in excess of the insurance proceeds it would have
received had such party carried the insurance required by Articles 13. Tenant
and Landlord shall apply all insurance proceeds received with respect to any
insurance required to be maintained by Tenant and Landlord hereunder for the
purpose of fully repairing and replacing the damage required to be repaired by
such party, as aforesaid.
Section 14.02. Notwithstanding any damage or destruction caused by a
casualty described in Section 14.01, all Rental payable hereunder shall continue
to be paid without deduction or abatement except with respect to the damaged
portion of the premises (unless such damage is attributable to the misconduct of
Tenant, its agents, employees or contractors), from and after substantial
completion by Landlord of Landlord's Work. In addition, no damages,
compensation, or claim shall be payable by Landlord for inconvenience, loss of
business, or annoyance arising from any repair or restoration of any portion of
the Premises or for any other reason.
Section 14.03. Notwithstanding the foregoing, in the event a casualty
damaging 50% or more of the Building occurs within the last five (5) Lease Years
of the Term, as same may be extended as provided herein, then either Landlord or
Tenant upon notice to the other given within sixty (60) days after the
occurrence of the casualty may cancel this lease effective thirty (30) days
after the delivery of such termination notice (time being of the essence of the
delivery of said notice), but such termination shall not be effective if Tenant
exercises any Renewal Option within thirty (30) days of the notice of
termination.
ARTICLE 15
CONDEMNATION
Section 15.01. In the event the whole, or substantially the whole of
the Premises are taken or condemned for any public purpose or Tenant terminates
this Lease upon notice delivered to Landlord within thirty (30) days after a
taking of a material portion of the Premises stating that the remaining portion
of the Premises is not usable for the Permitted Use as reasonably determined by
Tenant (time being of the essence of the delivery of said notice), this Lease
shall terminate as of the date of such taking; provided, however, that those
provisions of this Lease which are designated to cover matters of termination
and the period thereafter shall survive the termination hereof. For purposes of
this Article 15, the term "substantially the whole of the Premises" shall mean:
(i) fifty percent (50%) or more of the rentable area of the Building, or (ii)
fifty percent (50%) or more of the parking spaces in the parking area on the
Premises, or (iii) any portion of the Premises if Tenant does not have access to
the Building as a result of such taking or condemnation.
Section 15.02. In the event that a portion, but less than substantially
the whole, of the Premises should be taken or condemned for any public purpose,
then this Lease shall terminate as of the date of such taking as to the portion
of the Premises so taken, and this Lease shall remain in full force and effect
as to the remainder of the Premises. In such event, the Annual Base Rent will be
diminished by an amount representing the part of such amounts properly
applicable to the portion of the Building so taken. The parties will repair the
remaining portion of the Premises to the extent of Landlord's Work and Tenant's
work, respectively.
Section 15.03. In the event of the termination of this Lease pursuant
to the provisions of Sections 15.01, this Lease and the Term and the estate
hereby granted shall expire as of the date of such termination in the same
manner and with the same effect as if that were the date set for the normal
expiration of the Term, and Rental shall be apportioned as of the date of
termination. The provisions of this Section 15.03 shall apply in the same manner
to any partial termination of this Lease pursuant to the provisions of this
Article 15.
Section 15.04. Except as otherwise provided in this Section 15.04
below, Landlord shall be entitled to receive the entire award in any
condemnation proceeding or action for taking, without deduction therefrom for
any estate vested in Tenant by this Lease; provided that nothing herein
contained shall prohibit Tenant from seeking in a separate action (if such
separate action is allowed under applicable law, otherwise in the same action),
the value of Tenant's leasehold improvements incorporated in the Building and/or
on the Land and paid for by Tenant, and/or Tenant's moving expenses, and/or (to
the extent Landlord's award is not or will not be reduced thereby) for an award
of rent differential as between this Lease and the lease, if any, for
replacement premises.
ARTICLE 16
ASSIGNMENT AND SUBLETTING
Section 16.01. Tenant may not sell, assign, transfer, or hypothecate
this Lease or any interest herein (either voluntarily or by operation of law,
including, if Tenant is a corporation, limited liability company or partnership,
the sale or transfer of a controlling interest in Tenant) or sublet the Premises
or any part thereof without the prior written consent of Landlord, which consent
shall not be unreasonably withheld, conditioned or delayed. Any attempted
assignment or subletting of the Premises in violation of the foregoing sentence
shall be void. Without limiting the other instances in which it may be
reasonable for Landlord to withhold its consent to an assignment or subletting,
Landlord and Tenant acknowledge that it will be reasonable for Landlord to
withhold its consent in any of the following instances: (i) in Landlord's
reasonable judgment, the financial worth of the proposed assignee or subtenant
(of at least 50% of the Premises) does not meet the credit standards applied by
Landlord for other tenants under leases with comparable terms; (ii) the proposed
use of the Premises by, the proposed subtenant or assignee is inconsistent with
the Permitted Use; (iii) Landlord has experienced previous defaults by or is in
litigation with the proposed assignee or subtenant; or (iv) Tenant is in
material or monetary default of any obligation of Tenant under this Lease, or
Tenant has been in monetary default under this Lease on three (3) or more
occasions during the previous twelve (12) months preceding the date that Tenant
requests consent.
Section 16.02. If the rental rate agreed upon between Tenant and its
subtenant under any approved sublease of the Premises (or any part thereof) is
greater than the rental rate that Tenant must pay Landlord hereunder for that
portion of the Premises that is subject to such sublease, or if any
consideration shall be received by Tenant in connection with any approved
assignment or sublease (in addition to rental as provided in such proposed
sublease), then fifty percent (50%) of such excess rental or consideration, as
the case may be (or both), after deducting reasonable and customary brokerage
fees, work allowances or other rent concession, the reasonable cost of
janitorial services provided to any such subtenant and the unamortized cost of
equipment installed in the Building by Tenant, at Tenant's sole cost, which
equipment is used to a material extent by the subtenant or assignee (as
applicable) (reasonable proof of such expenses shall be submitted to Landlord
promptly upon request), shall be considered additional Rental owed by Tenant to
Landlord, and shall be paid by Tenant to Landlord, in the case of excess
rentals, in the same manner that Tenant pays Annual Base Rent, and, in the case
of any other consideration, immediately upon receipt thereof by Tenant. If
Tenant notifies Landlord of Tenant's desire to assign this Lease or sublet all
or any part of the Premises, Tenant shall pay to Landlord as additional Rental
with the next due monthly Rental a reasonable fee, determined by Landlord, for
Landlord's reasonable costs and expenses in reviewing and evaluating such
proposed sublease or assignment. In the case of a permitted sublease, the
sublease agreement shall require the subtenant, upon receipt of notice from
Landlord that a monetary or material non-monetary Event of Default has occurred
and is continuing, to pay all subrent directly to Landlord (which amount paid to
Landlord will be offset against Rental owed by Tenant hereunder). No assignment
or subletting by Tenant shall relieve Tenant of Tenant's obligations under this
Lease.
Section 16.03. Landlord may sell, transfer, assign, and convey, all or
any part of the Premises and any and all of its rights under this Lease, and in
the event Landlord assigns its rights under this Lease, Landlord shall be
released from any and all obligations hereunder, which such successor expressly
assumes, in which event Tenant agrees to look solely to Landlord's successor in
interest for performance of such obligations.
Section 16.04 In connection with any request by Tenant pursuant to this
Article for Landlord's consent to assign this Lease or to sublet all or any part
of the Premises, Landlord shall have the following rights, any of which Landlord
may exercise by notice given to Tenant within thirty (30) days after Landlord
receives a written request by Tenant for consent to an assignment or subletting
accompanied by the information required by Section 16.10:
(i) with respect to a proposed assignment of the Lease, the
right to terminate this Lease on a date specified in Landlord's notice,
which date shall not be less than thirty (30) nor more than ninety (90)
days after the date of Tenant's request for consent;
(ii) with respect to a proposed subletting of the entire
Premises, the right to terminate this Lease on a date specified in
Landlord's notice, which date shall not be less than thirty (30) nor
more than ninety (90) days after the date of Tenant's request for
consent; or
(iii) with respect to a proposed subletting of less than the
entire Premises for substantially the remainder of the term of this
Lease, the right to terminate this Lease as to the portion of the
Premises affected by such subletting on a date specified in Landlord's
notice, which date shall not be less than thirty (30) nor more than
ninety (90) days after the date of Tenant's request for consent, in
which case Tenant shall promptly execute and deliver to Landlord an
appropriate modification of this Lease in form reasonably satisfactory
to Landlord in all respects.
If this Lease is terminated as to only a part of the Premises, the Annual Base
Rent shall be adjusted in proportion to the portion of the Premises affected by
such termination and Landlord shall bear all cost and expense of constructing a
legal demising wall along with a commercially reasonable separation of utilities
to the extent reasonably practicable, between the Premises and the sublet area.
If Landlord exercises any of its rights under this subsection, Tenant shall not
be liable for any obligations under the Lease with respect to the terminated
portion of the Premises accruing from and after the termination of this Lease.
Landlord may (but is not required to) thereafter lease the Premises, or any part
thereof, to Tenant's proposed assignee or subtenant, as the case may be, without
thereby incurring any liability to Tenant. If Landlord does not exercise its
rights under this subsection 16.04, Tenant may, for a period of 120 days after
the date of Tenant's notice, assign this Lease or sublet all or any part of the
Premises, free of the restrictions set forth in this subsection, but subject to
all other provisions of this Article. If Tenant does not enter into the proposed
sublease within the 120-day period, Tenant shall not assign this Lease or sublet
all or any portion of the Premises without again notifying Landlord and giving
Landlord the rights provided in this subsection.
Section 16.05. (a) If Tenant is a corporation, the transfer by one or
more transfers, directly or indirectly, by operation of law or otherwise, of a
majority of the stock of Tenant shall be deemed a voluntary assignment of this
Lease; provided, however, that the provisions of this Article 16 shall not apply
to the transfer of shares of stock of Tenant if and so long as Tenant is
publicly traded on a nationally recognized stock exchange. For purposes of this
Section 16.05 the term "transfers" shall be deemed to include the issuance of
new stock or of treasury stock which results in a majority of the stock of
Tenant being held by a person or persons that do not hold a majority of the
stock of Tenant on the date hereof. If Tenant is a partnership, the transfer by
one or more transfers, directly or indirectly, by operation of law or otherwise,
of a majority interest in the partnership shall be deemed a voluntary assignment
of this Lease. If Tenant is a limited liability company, trust, or any other
legal entity (including a corporation or a partnership), the transfer by one or
more transfers, directly or indirectly, of control of such entity, however
characterized, shall be deemed a voluntary assignment of this Lease. The
provisions of Sections 16.01, 16.02, and 16,04 shall not apply to transactions
with an entity into or with which Tenant is merged or consolidated or to which
substantially all of Tenant's assets or stock are transferred so long as (i)
such transfer was made for a legitimate independent business purpose and not for
the purpose of transferring this Lease, (ii) the successor to Tenant has a net
worth computed in accordance with generally accepted accounting principles at
least equal to the net worth of Tenant immediately prior to such merger,
consolidation or transfer, and (iii) proof satisfactory to Landlord of such net
worth is delivered to Landlord at least 10 days prior to the effective date of
any such transaction. Tenant may also, upon prior notice to Landlord, permit any
person which controls, is controlled by, or is under common control with Tenant
(a "Related Entity" ) to sublet all or part of the Premises or be an assignee of
Tenant's interest in this Lease for any Permitted Use for so long as such person
remains a Related Entity, provided the Related Entity is using the Premises in a
manner consistent with the terms of this Lease. For purposes of this Section
16.05 "control" shall mean the ownership of a majority of the interest in the
entity, in question, and the power and authority to direct the management and
operation of such entity.
(b) The limitations set forth in this Section 16.05 shall
apply to subtenant(s), assignee(s) and guarantor(s) of this Lease, if any, and
any transfer by any such entity in violation of this Section 16.05 shall be a
transfer in violation of Section 16.01.
Section 16.06. Any material modification or amendment, and any
extension of a sublease (other than with a Related Entity) and/or any other
agreement by which a landlord (or its affiliate) of a building other than the
Building agrees to assume or perform the obligations of Tenant under this Lease
shall be deemed a sublease for the purposes of Article 16 hereof; provided,
however, all such modifications, amendments and extensions shall be delivered to
Landlord promptly after the execution thereof.
Section 16.07. This Article 16 shall not apply to any collocation
license, service or similar arrangement (which may be called a sublease
agreement) Tenant enters into with a third party, including any customer, vendor
or connectivity provider (collectively, "Collocates"), provided and on condition
(i) the Collocates connect in any manner into or utilize any equipment of
Tenant, and/or (ii) Tenant receives and/or provides connectivity or customary
professional collocation supervisory services to or from such Collocates (which
is material to their use of the Premises, such as for example only, and without
limitation, systems and network management services, software management
services and information technology and management services), subject to
compliance with all of the terms and conditions of this Lease; and (iii) such
use complies with all applicable laws. The Collocates shall be entitled to use
the Premises in a manner consistent with the terms of this Lease. It is
acknowledged that Landlord does not have any direct contractual relationship
with the Collocates, and none of the Collocates shall become subtenants or
assignees or acquire any other rights under this Lease without the prior written
consent of Landlord, which may be granted or withheld in Landlord's reasonable
discretion. Tenant acknowledges and agrees that Tenant shall be responsible for
compliance by the Collocates with the terms and conditions of this Lease, and
Tenant agrees to indemnify, defend and hold Landlord harmless from and against
all claims, actions, judgments, liability, costs or expenses (including
reasonable attorneys' fees and costs) incurred by Landlord arising out of or in
connection with the use or occupancy of the Premises or any portion of the
Building by any of the Collocates, or their employees, contractors, invitees or
guests.
Section 16.08. If, without Landlord's consent (when consent is required
pursuant to the terms hereof), this Lease is assigned, or any part of the
Premises is sublet or occupied by anyone other than Tenant or this Lease or the
Premises or any of Tenant's Property is encumbered (by operation of law or
otherwise), except pursuant to Section 28 hereof, Landlord may collect rent from
the assignee, subtenant or occupant, and apply the net amount collected to the
Rental herein reserved. No such collection of rent shall be deemed to be (i) a
waiver of the provisions of this Article 16, (ii) an acceptance of the assignee,
subtenant or occupant as tenant, or (iii) a release of Tenant from the
performance of Tenant's covenants hereunder. Tenant shall remain fully liable
for the obligations under this Lease.
Section 16.09. Landlord's consent to any assignment or subletting shall
not relieve Tenant from the obligation to obtain Landlord's express consent to
any further assignment or subletting. In no event shall any permitted subtenant
assign or encumber its sublease or further sublet any portion of its sublet
space, or otherwise suffer or permit any portion of the sublet space to be used
or occupied by others, except in accordance with the terms of this Lease.
Section 16.10. If Tenant desires to assign this Lease or sublet all or
any portion of the Premises, Tenant shall give notice thereof to Landlord, which
notice shall be accompanied by (a) with respect to an assignment of this Lease,
the date Tenant desires the assignment to be effective, and (b) with respect to
a sublet of all or a part of the Premises, (i) the material business terms on
which Tenant would sublet such premises, (ii) a description of the portion of
the Premises to be sublet, (c) the name and pertinent financial information of
the proposed assignee or subtenant, and (d) any other information Landlord may
reasonably require.
Section 16.11. Each sublease shall be subject and subordinate to this
Lease and to the matters to which this Lease is or shall be subordinate, it
being the intention of Landlord and Tenant that Tenant shall assume and be
liable to Landlord for any and all acts and omissions of all subtenants and
anyone claiming under or through any subtenants which, if performed or omitted
by Tenant, would be a default under this Lease; and Tenant and each subtenant
shall be deemed to have agreed that upon the occurrence and during the
continuation of an Event of Default hereunder, provided Landlord terminates the
Lease, in accordance with Article 21 below, Landlord may, at its option, collect
rent under such sublease, from such subtenant and such subtenant shall, at
Landlord's option and upon notice from Landlord, attorn to Landlord pursuant to
the then executory provisions of this Lease other than the monetary terms of
this Lease, which monetary terms shall be governed by the terms of such
sublease, except that Landlord shall not be (A) liable for any previous act or
omission of Tenant under such sublease, (B) subject to any counterclaim, offset
or defense, which theretofore accrued to such subtenant against Tenant, (C)
bound by any previous modification of such sublease not consented to by
Landlord, or by any prepayment of more than one month's rent and additional rent
under such sublease, (D) bound to return such subtenant's security deposit, if
any, except to the extent that Landlord shall receive actual possession of such
deposit and such subtenant shall be entitled to the return of all or any portion
of such deposit under the terms of its sublease, or (E) obligated to make any
payment to or on behalf of such subtenant, or to perform any work in the
subleased space or the Building, or in any way to prepare the subleased space
for occupancy, beyond Landlord's obligations under this Lease. The provisions of
this Section 16.11. shall be self-operative, and no further instrument shall be
required to give effect to this provision, provided that the subtenant shall
execute and deliver to Landlord any instruments Landlord may reasonably request
to evidence and confirm such subordination and attornment.
Section 16.12. Notwithstanding any assignment or subletting or any
acceptance of Rental by Landlord from any assignee or subtenant, Tenant shall
remain fully liable for the payment of all Rental due and for the performance of
all other terms, covenants and conditions contained in this Lease on Tenant's
part to be observed and performed, and any default under any term, covenant or
condition of this Lease by any subtenant or assignee or anyone claiming under or
through any subtenant or assignee shall be deemed to be a default under this
Lease by Tenant. Tenant shall indemnify, defend, protect and hold harmless
Landlord from and against any and all losses resulting from any claims that may
be made against Landlord by the proposed assignee or subtenant or anyone
claiming under or through any subtenant or by any brokers or other persons
claiming a commission or similar compensation in connection with the proposed
assignment or sublease, irrespective of whether Landlord shall give or decline
to give its consent to any proposed assignment or sublease, or if Landlord shall
exercise any of its options under this Article 16, unless attributable to the
gross negligence or willful misconduct of Landlord.
Section 16.13. If Landlord consents to a proposed assignment or
sublease and Tenant fails to execute and deliver to Landlord such assignment or
sublease within 120 days after the giving of such consent, then Tenant shall
again comply with all of the provisions and conditions of this Article 16 hereof
before assigning this Lease or subletting all or part of the Premises.
Section 16.14. Landlord shall not be required to respond to a request
for consent to a proposed assignment or sublease unless and until Tenant submits
to Landlord the information stated in Section 16.10. Landlord shall respond to
requests for approval of the form of sublease or assignment within 15 days after
submission thereof, provided such form shall be submitted on or after submission
of the information in Section 16.10 and prior to consummation of the sublease or
assignment, in question. Tenant shall either before or after Landlord consents
to such a request, deliver to Landlord not later than 30 days after Tenant
enters into an assignment or sublease agreement, a copy of a fully executed and
delivered assignment and assumption agreement or sublease, which is in form and
substance similar to the form of assignment and sublease and information
consented to by the Landlord in all material respects.
Section 16.15. The joint and several liability of Tenant and any
successors-in-interest of Tenant and the due performance of Tenant's obligations
under this Lease shall not be discharged, released or impaired by any agreement
or stipulation made by Landlord, or any grantee or assignee of Landlord,
extending the time, or modifying any of the terms and provisions of this Lease,
or by any waiver or failure of Landlord, or any grantee or assignee of Landlord,
to enforce any of the terms and provisions of this Lease.
ARTICLE 17
INDEMNIFICATION
Except as otherwise expressly provided to the contrary in this Lease,
Tenant waives all claims against Landlord for damage to any property or injury
to, or death of, any person in, upon or about the Premises, arising at any time
and from any cause other than by reason of the gross negligence or willful
misconduct of Landlord, and Tenant shall indemnify Landlord and shall hold
Landlord harmless from any damage to any property or injury to, or death of, any
person arising from the use or occupancy of the Premises by Tenant or any acts
or omissions of Tenant or its agents, employees, representatives, contractors or
invitees in, on or about the Premises or breach of this Lease by Tenant, except
such as is caused solely by the gross negligence or willful misconduct of
Landlord, its agents or employees. Without limiting the generality of the
foregoing, Landlord shall not be liable for any injury or damage to persons or
property resulting from fire, explosion, falling plaster, steam, gas,
electricity, water, rain, flood, snow, or leaks from any part of the Premises or
from the pipes, appliances, equipment, plumbing works, roof, or subsurface of
any floor or ceiling, or from the street or any other place, or by dampness or
by any other cause whatsoever unless caused by the gross negligence or willful
misconduct of Landlord, its agents, employees or contractors. Landlord shall not
be liable for any such damage caused by occupants of property adjacent to the
Premises, or by the public, or caused by any private, public, or quasi-public
construction or other work, including, but not limited to, any construction,
modification, or operation of underground, ground-level, or above-ground
pedestrian tunnels, bridges, walkways, or similar items. Tenant's foregoing
indemnity obligation shall include reasonable attorneys' fees, investigation
costs, and all other reasonable costs and expenses incurred by Landlord from the
first notice that any claim or demand has been made or may be made. The
provisions of this Article 17 shall survive the termination of this Lease with
respect to any damage, injury, or death occurring before such termination. If
Landlord is made a party to any litigation commenced by or against Tenant
relating to this Lease or to the Premises, and provided that in any such
litigation Landlord is not finally adjudicated to be at fault, then Tenant shall
pay all costs and expenses, including reasonable attorneys' fees and court
costs, incurred by or imposed upon Landlord because of any such litigation (but
not including attorneys' fees of Landlord's separate counsel hired to defend
Landlord in such action), and the amount of all such costs and expenses,
including reasonable attorneys' fees and court costs, shall be a demand
obligation owing by Tenant to Landlord. Tenant shall defend any such action with
counsel reasonably satisfactory to Landlord.
ARTICLE 18
SURRENDER OF THE PREMISES
Section 18.01. Upon the expiration of the Term or other termination of
this Lease for any cause whatsoever, Tenant shall peacefully vacate and
surrender the Premises in as good order and condition, reasonable use and wear
thereof excepted, subject to the terms of this Lease.
Section 18.02. Should Tenant continue to hold the Premises after the
termination of this Lease, whether the termination occurs by lapse of time or
otherwise, such holding over, unless otherwise agreed to by Landlord in writing,
shall constitute and be construed as a tenancy at will at a daily Rental equal
to 1/30th of an amount equal to one and one-half with respect to the first 60
days of a holdover, and thereafter, two times the monthly Rental payable by
Tenant as of the date of termination and subject to all of the other terms set
forth herein except any right to renew this Lease, but the foregoing shall not
constitute a consent by Landlord to such holding over and shall not prevent
Landlord from exercising any of its remedies under this Lease or applicable law
by reason of such holding over.
Section 18.03. On or before the Expiration Date, Tenant shall remove,
at Tenant's expense, all of its furniture, furnishings, personal property,
movable trade fixtures, and those alterations, improvements and additions
Landlord requested Tenant to remove pursuant to Section 10.06, and Tenant shall
promptly repair all damage done to the Premises by such removal. Any items not
so removed at the Expiration Date shall, at Landlord's option, be deemed
abandoned and shall thereupon become the property of Landlord. If Tenant fails
to remove any furniture, furnishings, personal property, movable trade fixtures,
and those alterations, improvements and additions Landlord requested Tenant to
remove pursuant to Section 10.06, then in addition to any other remedy available
to Landlord hereunder or at law or equity, Landlord may do so at Tenant's
expense, and Tenant shall reimburse Landlord on demand for the actual cost
incurred by Landlord (plus a fee of ten percent (10%)) of the cost therefor to
compensate Landlord for its administrative costs and overhead), and Landlord
shall have the right to look to the Security Deposit for such reimbursement.
ARTICLE 19
ESTOPPEL CERTIFICATES
Section 19.01. Tenant agrees to furnish no later than fifteen (15) days
after a request therefor by Landlord, any ground lessor, or the holder of any
deed of trust or mortgage covering the Building, the Land, or any interest of
Landlord therein or any purchaser of Landlord's interest, a certificate signed
by Tenant certifying (to the extent same is true) that this Lease is in full
force and effect and unmodified; that the Term has commenced and the full Rental
is then accruing hereunder; that Tenant has accepted possession of the Premises;
that no Rental under this Lease has been paid more than thirty (30) days in
advance of its due date; that the address for notices to be sent to Tenant is as
set forth in this Lease (or has been changed by notice duly given and is as set
forth in the certificate); that Tenant, as of the date of such certificate, has
no knowledge of any charge, lien, or claim of offset under this Lease or
otherwise against Rentals or other charges due or to become due hereunder; that
Landlord is not then in default under this Lease; and such other matters as may
be reasonably requested by Landlord or any such ground lessor, holder of such
deed of trust or mortgage or purchaser. If Tenant is unable to so certify as to
one or more of the foregoing items, Tenant shall specify its reason therefor in
writing. Any such certificate may be relied upon by any prospective purchaser,
ground lessor, mortgagee, or any beneficiary under any deed of trust on the
Building or the Land or any part thereof. Tenant's failure to timely execute and
deliver an estoppel certificate pursuant to this Section 19 after notice and the
expiration of an additional five (5) days, shall constitute an Event of Default.
Section 19.02. Landlord agrees to furnish no later than
fifteen (15) days after a request therefor by Tenant, in connection with a
financing of equipment or leasehold improvements installed in the Building,
certificate signed by Landlord certifying (to the extent same is true) that this
Lease is in full force and effect and unmodified; that the Term has commenced
and the full Rental is then accruing hereunder; that no Rental under this Lease
has been paid more than thirty (30) days in advance of its due date; that the
address for notices to be sent to Landlord is as set forth in this Lease (or has
been changed by notice duly given and is as set forth in the certificate); that
Landlord, as of the date of such certificate, has no knowledge of any charge,
lien, or claim of offset under this Lease or otherwise against Rentals or other
charges due or to become due hereunder; and that an Event of Default is not
pending (or if pending specifying such default), and such other matters as may
be reasonably requested by Tenant's lender. If Landlord is unable to so certify
as to one or more of the foregoing items, Landlord shall specify its reason
therefor in writing. Any such certificate may be relied upon by any prospective
lender of Tenant, as aforesaid.
ARTICLE 20
SUBORDINATION
Section 20.01. Landlord shall obtain a non-disturbance agreement from
all holders of a Superior Instrument in such holders' standard form with such
reasonable modifications as shall be mutually satisfactory to the parties
thereto acting in good faith. This Lease is subject and subordinate to any first
deeds of trust, first mortgages or other first security instruments
(collectively, "Superior Instruments") which may from time to time during the
Term cover the Building and/or the Land, or any interest of Landlord therein,
and to any advances made on the security thereof, and to any refinancings,
increases, renewals, modifications, consolidations, replacements, and extensions
of any such future Superior Instruments. Within twenty (20) days after demand,
Tenant shall execute, acknowledge, and deliver to Landlord any further
instruments and certificates evidencing such subordination as Landlord or the
holder of any Superior Instrument may reasonably request. As of the date hereof
there is no Superior Instrument covering the Land and/or Building.
Section 20.02. Notwithstanding the generality of the foregoing
provisions of Section 20.01 hereof, any holder of a Superior Instrument shall
have the right, unilaterally, at any time, to subordinate fully or partially any
such Superior Instrument to this Lease on such terms and subject to such
conditions as such holder of a Superior Instrument may consider appropriate.
Upon request, Tenant shall execute an instrument confirming any such full or
partial subordination by any holder of a Superior Instrument. At any time,
before or after the institution of any proceedings for the foreclosure of any
Superior Instrument, or sale of the Building and/or Land under any Superior
Instrument, or upon the termination of any ground lease, Tenant shall attorn to
such purchaser upon any such sale or the grantee under any deed in lieu of such
foreclosure or to any ground lessor in the event of a termination of a ground
Lease, as the case may be, and shall recognize such ground purchaser, grantee or
ground lessor, as the case may be, as Landlord under this Lease, subject to the
terms of Section 20.01 above. Tenant hereby waives the right, if any, to elect
to terminate this Lease or to surrender possession of the Premises in the event
of the judicial or nonjudicial foreclosure of any deed of trust, mortgage, or
security agreement (or any transfer in lieu thereof) or termination of a ground
lease. The foregoing agreement of Tenant to attorn shall survive any such
foreclosure sale, trustee's sale, or conveyance in lieu thereof, or termination
of a ground lease. Tenant shall, upon demand at any time, before or after any
such foreclosure sale, trustee's sale, or conveyance in lieu thereof, or
termination of a ground lease, execute, acknowledge, and deliver to Landlord's
mortgagee or any successor thereof or any then owner of the Premises or to the
ground lessor (as the case may be), any written instruments and certificates
evidencing such attornment as such mortgagee, successor, owner or ground lessor
may reasonably require.
Section 20.03. Should any ground lease be terminated, or any deed of
trust, mortgage, or security instrument be foreclosed, the liability of the
ground lessor, mortgagee, trustee, or purchaser, as the case may be, as
"Landlord" hereunder, shall exist only with respect to the acts or omissions of
such person or entity occurring while it was the owner of the Land and/or
Building, subject to the other provisions of this Section 20.03. Further, Tenant
agrees that any such ground lessor, mortgagee, trustee, or purchaser shall not
be liable for or subject to (i) any Rental paid more than thirty (30) days in
advance of its due date; (ii) any amendment or modification of this Lease made
without the prior written approval of such ground lessor, mortgagee, trustee, or
purchaser where Tenant has previously been notified in writing of the need for
such approval; (iii) any default by or any claim against any prior Landlord;
(iv) subject to any defense, claim, counterclaim, or offset which Tenant may
have against Landlord, unless such offset is one which Tenant is expressly
permitted pursuant to the terms of this Lease, (v) bound by any obligation to
make any payment to Tenant which was required to be made prior to the time such
successor landlord succeeded to Landlord's interest; and (vi) bound by any
obligation to perform any work or to make any improvements to the Premises
except repair and compliance obligations accruing from and after succession
pursuant to Paragraphs 9, 12, 14 and 15 hereof. Nothing herein shall derogate
from the obligation of any successor to Landlord to cure any default of Landlord
that continues to exist when such successor succeeds to Landlord's interest in
the Premises (other than as expressly provided otherwise in Section 20.03(v)).
Section 20.04. As long as any holder of a Superior Instrument shall
exist, Tenant shall not seek to terminate this Lease by reason of any act or
omission of Landlord (a) until Tenant shall have given notice of such act or
omission to all holders of a Superior Instrument, for which names and addresses
have been provided to Tenant and (b) until a reasonable period of time shall
have elapsed following the giving of notice of such default and the expiration
of any applicable notice or grace periods (provided such holder proceeds with
reasonable promptness to effectuate a cure of such default and the holder is
using reasonable diligence to remedy such condition) during which period such
holder of a Superior Instrument shall have the right, but not the obligation, to
remedy such act or omission and thereafter diligently proceed to so remedy such
act or obligation. If any holder of a Superior Instrument elects to remedy such
act or omission of Landlord, Tenant shall not seek to terminate this Lease so
long as such holder of a Superior Instrument is proceeding with reasonable
diligence to effect such remedy, except where Tenant is permitted to terminate
this lease pursuant to the express provisions hereof.
ARTICLE 21
DEFAULT AND REMEDIES
Section 21.01. The occurrence of any one or more of the following
events shall constitute an "Event of Default" under this Lease: (a) if Tenant
shall fail to pay any Rental or other sums payable by Tenant hereunder as and
when such Rental or other sums become due and payable and such failure shall
continue for more than five (5) business days after written notice of such
non-payment; (b) if Tenant shall fail to perform or observe any covenant or
obligation hereunder and such failure shall continue for more than thirty (30)
days after notice; or, if such failure is not of an emergency nature, does not
endanger the health, safety or welfare of the Premises (or any portion thereof)
or the occupants thereof, and is curable but cannot reasonably be cured within
such thirty (30) day period, Tenant shall have a reasonable extension of such
cure period, up to a maximum extension of one hundred twenty (120) days, so long
as Tenant commences to correct same within said thirty (30) day period and
thereafter diligently prosecutes the correction of same to completion; (c) if
any petition is filed by or against Tenant or any guarantor of Tenant's
obligations under this Lease under any section or chapter of the present or any
future Federal Bankruptcy Code or under any similar law or statute of the United
States or any state thereof (which, in the case of an involuntary proceeding, is
not permanently discharged, dismissed, stayed, or vacated, as the case may be,
within sixty (60) days of its commencement), or if any order for relief shall be
entered against Tenant or any guarantor of Tenant's obligations under this Lease
in proceedings filed under any section or chapter of the present or any future
Federal Bankruptcy Code or under any similar law or statute of the United States
or any state thereof; (d) if Tenant or any guarantor of Tenant's obligations
under this Lease becomes insolvent or makes a transfer in fraud of creditors;
(e) if Tenant or any guarantor of Tenant's obligations under this Lease makes an
assignment for the benefit of creditors; or (f) if a receiver, custodian, or
trustee is appointed for Tenant or any guarantor of Tenant's obligations under
this Lease or for any of the assets of Tenant or any guarantor of Tenant's
obligations under this Lease, which appointment is not vacated within sixty (60)
days of the date of such appointment.
Section 21.02. If an Event of Default occurs, then at any time
thereafter while Tenant remains in default, Landlord may do any one or more of
the following, thirty (30) days after notice of its intent to do so, during
which period Tenant shall have the opportunity to file for injunctive relief:
(a) With respect to a monetary or a material non-monetary Event of
Default, terminate this Lease, in which event Tenant shall immediately surrender
the Premises to Landlord after Landlord obtains a judgment for possession (or
similar judicial order). For purposes of this Section 21.02, a "material
non-monetary default" shall relate to an Installation Requirement (as
hereinafter defined), or an incurable default, or a default or breach of
Tenant's obligations under Articles 9, 11, 18, 20 or 26 hereof, or a breach of
Section 16.01 hereof, and shall have a material adverse effect on the Building,
Land and/or Landlord, and Landlord's notice of material non-monetary default
shall clearly indicate thereon that a "material non-monetary" default has
occurred. If Tenant fails to do so, Landlord may, without notice and without
prejudice to any other remedy Landlord may have, enter upon and take possession
of the Premises and expel or remove Tenant and its effects without being liable
to prosecution or any claim for damages therefor; and Tenant shall indemnify
Landlord for all loss and damage which Landlord may suffer by reason of such
termination, whether through inability to relet the Premises or otherwise,
including any loss of Rental for the remainder of the Term.
(b) Terminate this Lease, as aforesaid in paragraph (a) above for a
monetary or material non-monetary Event of Default, in which event Tenant's
Event of Default should be considered a total breach of Tenant's obligations
under this Lease and Tenant immediately shall become liable for such damages for
such breach in an amount, equal to the total of (1) the costs of recovering the
Premises; (2) the unpaid Rental earned as of the date of termination, plus
interest thereon at a rate per annum from the due date equal to twelve percent
(12%), provided, however, that such interest shall never exceed the Highest
Lawful Rate; (3) the amount of the excess of (i) the total Rental and other
benefits which Landlord would have received under this Lease for the remainder
of the Term, at the rates then in effect (reduced by the rent received by
Landlord under a lease with a new tenant covering the balance of this Lease
term), together with all other expenses incurred by Landlord in connection with
Tenant's default, over (ii) the Fair Market Value Rate of the balance of the
Term as of the time of such breach, discounted at the rate of six percent (6%)
per annum to the then-present value; and (4) all other sums of money and damages
owing by Tenant to Landlord. The term "Fair Market Value Rate" as used herein
means the fair market value rental rate for a comparable lease term commencing
at a comparable time for the leasing of space of comparable size similarly
situated to the Premises, or in buildings of equivalent quality and located in
the business district in which the Building is located.
(c) After obtaining a judgment for possession (or similar judicial
order) for a monetary or a material non-monetary Event of Default, enter upon
and take possession of the Premises as Tenant's agent, without terminating this
Lease and without being liable to prosecution or any claim for damages therefor,
and Landlord may relet the Premises as Tenant's agent and receive the rental
therefor, in which event Tenant shall pay to Landlord on demand any and all
costs of releasing, renovating, repairing, and altering the Premises (including
but not limited to advertising costs, commissions, finders fees and other
similar costs) for a new tenant or tenants and any deficiency that may arise by
reason of such reletting, provided, however, that Landlord shall have no duty to
relet the Premises and Landlord's failure to relet the Premises shall not
release or affect Tenant's liability for Rental or for damages.
(d) Do whatever Tenant is obligated to do under this Lease (including,
without limitation, making payments to third parties) and enter the Premises
without being liable to prosecution or any claim for damages therefor to
accomplish this purpose. Tenant shall reimburse Landlord within ten (10) days
after demand for any expenses which Landlord incurs in thus effecting compliance
with this Lease on Tenant's behalf (plus a fee of fifteen percent (15%) of the
cost therefor to compensate Landlord for its administrative costs and overhead),
and Landlord shall not be liable for any damages suffered by Tenant from such
action, unless caused by the gross negligence or willful misconduct of Landlord.
Section 21.03. No act or thing done by Landlord or its agents during
the Term shall constitute an acceptance of an attempted surrender of the
Premises, and no agreement to accept a surrender of the Premises shall be valid
unless made in writing and signed by Landlord. No re-entry or taking possession
of the Premises by Landlord shall constitute an election by Landlord to
terminate this Lease, unless a written notice of such intention is given to
Tenant. Notwithstanding any such reletting or re-entry or taking possession,
Landlord may at any time thereafter terminate this Lease for a previous default.
Landlord's acceptance of Rental following an event of default hereunder shall
not be construed as a waiver of such event of default. No waiver by Landlord or
Tenant of any breach of this Lease by the other shall constitute a waiver of any
other violation or breach of any of the terms hereof. Forbearance by Landlord or
Tenant to enforce one or more of the remedies herein provided (or otherwise)
upon a breach hereof shall not constitute a waiver of any other breach of the
Lease.
Section 21.04. No provision of this Lease shall be deemed to have been
waived by Landlord or Tenant unless such waiver is in writing and signed by the
party to be charged. Nor shall any custom or practice which may evolve between
the parties in the administration of the terms of this Lease be construed to
waive or lessen the party's right to insist upon strict performance of the terms
of this Lease. The rights granted to Landlord and Tenant in this Lease shall be
cumulative of every other right or remedy which Landlord and Tenant may
otherwise have at law or in equity or by statute, and the exercise of one or
more rights or remedies shall not prejudice or impair the concurrent or
subsequent exercise of other rights or remedies.
Section 21.05. If Landlord shall have failed to commence to perform its
repair or other material obligations under this Lease and as a consequence of
such failure, Tenant or its business operations from the Premises is adversely
affected in a material fashion, and such failure of performance continues, for a
period of thirty (30) days after written notice thereof from Tenant to Landlord
(unless any such non-monetary default cannot be cured within said 30 days
period, then provided Landlord has not promptly commenced and diligently pursued
such cure), Tenant may, at its option and without prejudice to any other right
and remedy available to Tenant hereunder, at law or in equity, upon notice to
Landlord undertake all reasonable action to cure Landlord's default and Landlord
shall, within thirty (30) days following demand therefor, reimburse Tenant for
all reasonable out-of-pocket sums expended or obligations incurred by Tenant in
connection therewith. If Landlord shall fail to pay Tenant such amounts within
such thirty (30) day period, Landlord shall pay Tenant interest thereon at the
rate for late payments specified in Section 5.02 above, and if such amounts
remain unpaid after sixty (60) days, Tenant may offset such amounts against the
Annual Base and additional rent thereafter coming due hereunder.
ARTICLE 22
WAIVER BY TENANT
To the extent permitted by applicable law, Tenant waives (except as
otherwise expressly provided in this Lease) for itself and all claiming by,
through, and under it, including creditors of all kinds: (a) any right and
privilege which it or any of them may have under any present or future
constitution, statute, or rule of law to redeem the Premises or to have a
continuance of this Lease for the Term after termination of Tenant's right of
occupancy by order or judgment of any court or by any legal process or writ,
under the terms of this Lease, or after the termination of the Term as herein
provided; (b) the benefits of any present or future constitution, statute, or
rule of law which exempts property from liability for debt or for distress for
rent; and (c) the provisions of law relating to notice and/or delay in levy of
execution in case of eviction of a tenant for nonpayment of rent.
ARTICLE 23
SECURITY DEPOSIT
Section 23.01. Tenant shall be required to deliver the Security Deposit
to Landlord (and shall use best efforts to deliver same within 5 business days
after delivery to Tenant of a fully executed Lease) in the form of a clean,
irrevocable, non-documentary and unconditional letter of credit in the amount of
the Security Deposit set forth in the Basic Lease Information (the "Letter of
Credit" ) issued by and drawable upon any commercial bank, trust company,
national banking association or savings and loan association with offices in the
United States (the "Issuing Bank" ), which has outstanding unsecured, uninsured
and unguaranteed indebtedness, or shall have issued a letter of credit or other
credit facility that constitutes the primary security for any outstanding
indebtedness that has combined capital, surplus and undivided profits of not
less than $500,000,000 and is reasonably satisfactory to Landlord. In the event
Tenant fails to timely deliver such Security Deposit to Landlord, as aforesaid,
Landlord may, at its sole option, terminate this Lease upon notice to Tenant, at
anytime thereafter, provided such termination notice is sent prior to Landlord's
receipt of such Security Deposit. The Letter of Credit shall (a) name Landlord
as beneficiary, (b) be in the amount of the Security Deposit, (c) have a term of
not less than one year, from the date hereof, (d) permit multiple drawings for
all or part of the Letter of Credit and drawings by overnight courier, (e) be
fully transferable by Landlord to Landlord's successor or assignee of its
interest in Premises without the payment of any fees or charges by Landlord or
such transferee, and (f) otherwise be in form and content satisfactory to
Landlord or in conformity with Exhibit F attached hereto. If upon any transfer
of the Letter of Credit, any fees or charges shall be so imposed, then such fees
or charges shall be payable solely by Tenant with respect to Landlord named
herein and the Letter of Credit shall so specify. The Letter of Credit shall
provide that it shall be deemed automatically renewed, without amendment, for
consecutive periods of one year during the Term commencing with the original
expiration date of such letter of credit. through the date that is at least 60
days after the Expiration Date, unless the Issuing Bank sends a notice (the
"Non-Renewal Notice" ) to Landlord by certified mail, return receipt requested,
not less than 60 days next preceding the then expiration date of the Letter of
Credit stating that the Issuing Bank has elected not to renew the Letter of
Credit in which event, Landlord shall have the right, upon receipt of the
Non-Renewal Notice, to draw the full amount of the Letter of Credit, by sight
draft on the Issuing Bank, and shall thereafter hold or apply the cash proceeds
of the Letter of Credit pursuant to the terms of this Article. The Letter of
Credit shall state that drafts drawn under and in compliance with the terms of
the Letter of Credit will be duly honored upon presentation to the Issuing Bank
accompanied by a certification from an officer of Landlord, its member, or agent
that Landlord is entitled to draw the proceeds requested pursuant to the terms
of this Lease. The Letter of Credit shall be subject in all respects to the
International Standby Practices set by the International Chamber of Commerce. In
the event Landlord draws down all or a part of the proceeds of the letter of
credit, then Tenant shall within thirty (30) days after demand either furnish to
Landlord an amendment to such letter of credit or a new letter of credit
complying with the terms hereof, so the Security Deposit being held by Landlord
is the full amount required under the terms of this Lease. Tenant shall
cooperate with Landlord during the Term in effectuating the intent and purpose
of this Article 23, and Landlord's right with respect to the Letter of Credit.
Section 23.02. If (i) no Event of Default then exists, (ii) Landlord
has not previously drawn down all or a portion of the Security Deposit and (iii)
Tenant complies with the provisions of this Section 23.02, (A) on the 1st
anniversary of the Commencement Date, provided all usage fees accrued as of such
date have been paid to the local utility, the Security Deposit shall be reduced
to $1,373,334.00; (B) on the 2nd anniversary of the Commencement Date, provided
all usage fees accrued as of such date have been paid to the local utility and
the Security Deposit shall have been previously reduced, the Security Deposit
shall be reduced to $1,286,668.00; (C) on the 3rd anniversary of the
Commencement Date, provided all usage fees accrued as of such date have been
paid to the local utility, and the Security Deposit shall have previously been
reduced, the Security Deposit shall be reduced to $1,200,000.00; (D) on the 5th
anniversary of the Commencement Date, the Security Deposit shall be reduced to
$800,000.00, and (E) provided the Security Deposit shall have previously been
reduced pursuant to the preceding clause (i), on the 10th anniversary of the
Commencement Date the Security Deposit shall be reduced to $400,000.00. The
Security Deposit shall be reduced as follows: (A) if the Security Deposit is in
the form of cash, Landlord shall, within 10 Business Days following notice by
Tenant to Landlord that Tenant is entitled to reduce the Security Deposit
pursuant to this Section 23.02, deliver to Tenant the amount by which the
Security Deposit is reduced, or (B) if the Security Deposit is in the form of a
Letter of Credit, Tenant shall deliver to Landlord an amendment to the Letter of
Credit (which amendment shall comply in all respects with the provisions of
Section 23.01), reducing the amount of the Letter of Credit by the amount of the
permitted reduction, and Landlord shall execute the amendment and such other
documents as are reasonably necessary to reduce the amount of the Letter of
Credit in accordance with the terms hereof. If Tenant delivers to Landlord an
amendment to the Letter of Credit in accordance with the terms hereof, Landlord
shall, within 10 Business Days after delivery of such amendment, either (1)
provide its reasonable objections to such amendment or (2) execute and deliver
within 10 Business Days such amendment of the Letter of Credit in accordance
with the terms hereof.
Section 23.03. Within thirty (30) days after the Expiration Date (or
the sooner termination of this Lease) and delivery of possession of the Premises
to Landlord as required by this Lease, Landlord shall return the Security
Deposit to Tenant (or the unapplied portion thereof, to the extent Landlord
applied same pursuant to the terms of this Lease).
ARTICLE 24
ATTORNEYS' FEES AND LEGAL EXPENSES
Tenant hereby agrees to pay, as additional rent, all reasonable
attorneys' fees and disbursements which Landlord may incur or pay out by reason
of, or in connection with any Event of Default (including, but not limited to,
matters involving: payment of rent or additional rent; alterations or assignment
or subletting), unless Tenant prevails in any action or proceeding in connection
therewith.
In the event either party initiates judicial or other legal proceedings
under or with respect to this Lease, against the other, the party prevailing in
any such proceeding shall be entitled to reimbursement of its reasonable
attorneys' fees and other related expenses incurred in connection therewith, in
addition to all other rights, awards and remedies permitted hereunder, at law or
in equity. Landlord's and Tenant's obligations under this Section shall survive
the expiration of the Term or any other termination of this Lease. This Section
is intended to supplement (and not to limit) other provisions of this Lease
pertaining to indemnities and/or attorney's fees. Such attorney's fees and
disbursements shall include services performed by in-house counsel used by
Landlord or Tenant, as applicable, the fees for which shall be calculated at an
hourly rate of $210.00 per hour, which hourly rate shall increase by five
percent (5%) for each twelve-month period after the date of this Lease, and
which rate the parties hereby agree is reasonable.
ARTICLE 25
NOTICES
No notice, and no request, consent, approval, waiver or other
communication which may be or is required or permitted to be given under this
Lease shall be effective unless the same is given in the manner set forth in
this Section 25. Each notice given pursuant to this Lease shall be given in
writing and shall be (i) delivered in person, (ii) sent by nationally recognized
overnight courier service, or (iii) sent by certified mail, return receipt
requested, first class postage prepaid, to Landlord or Tenant and/or any party
or parties they designate in writing, provided not more than three parties shall
be entitled to notice at any one time, as the case may be, at their respective
notice addresses as set forth in the Basic Lease Information, or at any such
other address or addresses (not to exceed three) that may be given by one party
to the other by notice pursuant to this Section 25. Such notices, if given as
prescribed in this Section 25, shall be deemed to have been given (a) at the
time of receipt or refusal of delivery if made in person, (b) on the next
business day if deposited with a nationally recognized overnight courier service
in time for next day delivery, or (c) on the third business day following the
date of mailing if mailed. During any interruption or threatened interruption of
substantial delay in postal services, all notices shall be delivered personally
or by nationally recognized overnight courier service.
ARTICLE 26
HAZARDOUS SUBSTANCES
Section 26.01. The term "Hazardous Substance" as used in this Lease
shall mean any product, substance, chemical, material or waste whose presence,
nature, quantity and/or intensity of existence, use, manufacture, disposal,
transportation, spill, release or affect, either by itself or in combination
with other materials expected to be on the Premises, is defined as a hazardous
material or substance pursuant to any applicable federal, state or local law
regulation. Except for small quantities of ordinary office supplies and except
for other materials which are customary in connection with the Permitted Use and
the business conducted by Tenant from the Premises in compliance with the terms
of this Lease (provided same are maintained and used in compliance with all
applicable laws), Tenant shall not cause or permit any Hazardous Substance to be
brought, kept, or used in or about the Premises by Tenant, its agents,
employees, contractors or invitees, without obtaining Landlord's prior written
consent.
Section 26.02. If Tenant or Landlord knows, or has reasonable cause to
believe, that a Hazardous Substance, or a condition involving or resulting from
same, has come to be located in, on or under or about the Premises, the
knowledgeable party shall immediately give written notice of such fact to the
other. Tenant and Landlord shall also immediately give the other (without
demand) a copy of any statement, report, notice, registration, application,
permit, license, given to or received from, any governmental authority or
private party, or persons entering or occupying the Premises, concerning the
presence, spill, release, discharge of or exposure to any Hazardous Substance or
contamination in, on or about the Premises.
Section 26.03. Landlord and Landlord's employees, agent, contractors
and lenders shall have the right to enter the Premises at any time in the case
of an emergency, and otherwise at reasonable times, for the purpose of
inspecting the condition of the Premises and for verifying compliance by Tenant
with this Section 26. Landlord shall have the right to employ experts and/or
consultants in connection with its examination of the Premises and with respect
to the installation, operation, use, monitoring, maintenance, or removal of any
Hazardous Substance on or from the Premises. The reasonable costs and expenses
of any such inspections shall be paid by the party requesting same, unless a
contamination, caused or materially contributed by Tenant, is found to exist or
be imminent, or unless the inspection or ordered by governmental authority as
the result of any such existing or imminent violation or contamination caused by
Tenant or anyone for whom Tenant is responsible. In any such case, Tenant shall
upon request reimburse Landlord for the reasonable cost and expense of such
inspection.
ARTICLE 27
SIGNS
No sign, advertisement or notice shall be inscribed, painted, affixed
or displayed on or about the exterior portion of the Premises, including without
limitation, on the windows or exterior walls of the Building without the prior
written consent of Landlord (which consent shall not be unreasonably withheld,
conditioned or delayed, provided an Event of Default does not then exist), and
then in such places, numbers, sizes, color and style as are approved in writing
in advance by Landlord and which conform to all applicable laws, regulations,
rules and ordinances. If any such sign, advertisement or notice is exhibited
without Landlord's prior written approval, Landlord shall have the right to
remove the same and Tenant shall be liable for any and all expenses incurred by
Landlord by said removal. Tenant will maintain its permitted signs (if any),
decorations, lettering, advertising matter and such other things as may be
approved in good condition and repair, and in compliance with all applicable
statutes, regulations and rules, at all times. Landlord may prohibit any
advertisement of Tenant in or on the Premises which in Landlord's reasonable
opinion tends to impair the reputation of the Building or the Premises, and upon
written notice from Landlord, Tenant shall refrain from and discontinue such
advertisement.
ARTICLE 28
WAIVER OF LIEN ON PERSONAL PROPERTY
Tenant shall have the right from time to time to grant security interests in or
otherwise finance Tenant's leasehold improvements, furniture, fixtures,
equipment and other personal property. Landlord hereby waives all lien rights,
statutory and otherwise, which it may now or hereafter have against all
leasehold improvements, furniture, fixtures, equipment and other personal
property of Tenant located in, on or about the Premises. Landlord shall from
time to time within twenty (20) days of written request by Tenant, execute such
Landlord lien waivers, subordinations and other related, customary and
reasonable documents as will permit Tenant to grant such security interests and
as may be reasonably required by any lender of Tenant, provided such documents
are reasonably satisfactory to Landlord. Landlord shall give such lenders for
which Landlord executed lien waivers notice of the termination of Tenant's right
to possess the Premises and the lender shall have the right, but not the
obligation, to (i) remove the secured property from the Premises within 30 days
after notice and/or (ii) assume all of Tenant's obligations and liabilities
under the Lease, and Landlord shall recognize such lender, as tenant under the
Lease, pursuant to an agreement mutually satisfactory to Landlord and lender
(and which does not impose greater obligations on the lender than that of Tenant
under the Lease, nor change the Lease, except for such minor or non-material
modifications as the parties, acting in good faith, may agree upon), provided
Lender gives notice thereof to Landlord within 30 days after notice of
termination by Landlord. Lender agrees to repair in a first-class manner any
physical damage to the Premises and/or Land caused by such removal and, if
Landlord is then in possession of the Premises, Landlord shall provide
reasonable access to the lender accordingly. Tenant shall have the right to add
lender as a party to receive notices under this Lease pursuant to Article 25
above. No Landlord lien shall at any time attach to the equipment or property of
Tenant's collocation and other customers, and Landlord hereby waives any and all
lien rights, statutory or otherwise, which Landlord may now or hereafter have
against such equipment or property.
ARTICLE 29
WAIVER OF JURY TRIAL; COUNTERCLAIMS
LANDLORD AND TENANT EACH HEREBY WAIVES ALL RIGHT TO TRIAL BY JURY IN
ANY CLAIM, ACTION, PROCEEDING OR COUNTERCLAIM BY EITHER PARTY AGAINST THE OTHER
ON ANY MATTERS ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE
RELATIONSHIP OF LANDLORD AND TENANT AND/OR TENANT'S USE OR OCCUPANCY OF THE
PREMISES. TENANT SHALL NOT IMPOSE ANY COUNTERCLAIM OR COUNTERCLAIMS IN A SUMMARY
PROCEEDING OR OTHER ACTION BASED ON TERMINATION OR HOLDOVER EXCEPT WITH RESPECT
TO CLAIMS WHICH MAY NOT BE BROUGHT BY TENANT IN A SEPARATE ACTION. THIS WAIVER
IS KNOWINGLY, INTENTIONALLY AND VOLUNTARILY MADE BY TENANT AND TENANT
ACKNOWLEDGES THAT NEITHER LANDLORD NOR ANY PERSON ACTING ON BEHALF OF LANDLORD
HAS MADE ANY REPRESENTATIONS OF FACT TO INDUCE THIS WAIVER OF TRIAL BY JURY OR
IN ANY WAY TO MODIFY OR NULLIFY ITS EFFECT. TENANT FURTHER ACKNOWLEDGES THAT IT
HAS BEEN REPRESENTED (OR HAS HAD THE OPPORTUNITY TO BE REPRESENTED) IN THE
SIGNING OF THIS LEASE AND IN THE MAKING OF THIS WAIVER BY INDEPENDENT LEGAL
COUNSEL, SELECTED OF ITS OWN FREE WILL, AND THAT IT HAS HAD THE OPPORTUNITY AND
ACKNOWLEDGES THAT IT HAS READ AND UNDERSTANDS THE MEANING AND RAMIFICATIONS OF
THIS WAIVER PROVISION AND AS EVIDENCE OF THE SAME HAS EXECUTED THIS LEASE.
ARTICLE 30
MISCELLANEOUS
Section 30.01. Brokers. Except for the Broker(s) listed in the Basic
Lease Information, if any, Landlord and Tenant each represent and warrant that
it has not entered into any agreement with, nor otherwise had any dealings with,
any broker or agent in connection with the negotiation or execution of this
Lease which could form the basis of any claim by any such broker or agent for a
brokerage fee or commission, finder's fee, or any other compensation of any kind
or nature in connection herewith, and Landlord and Tenant each agree to
indemnify and hold the other harmless from any costs (including, but not limited
to, court costs, investigation costs, and attorneys' fees), expenses, or
liability for commissions or other compensation claimed by any broker or agent
with respect to this Lease which arise out of any agreement or dealings, or
alleged agreement or dealings, between such party and any such agent or broker.
Section 30.02. Severability. Every agreement contained in this Lease
is, and shall be construed as, a separate and independent agreement. If any term
of this Lease or the application thereof to any person or circumstances shall be
invalid and unenforceable, the remainder this Lease, or the application of such
term to persons or circumstances other than those as to which it is invalid or
unenforceable, shall not be affected.
Section 30.03. No Merger. There shall be no merger of this Lease or of
the leasehold estate hereby created with the fee estate in the Premises or any
part thereof by reason of the fact that the same person may acquire or hold,
directly or indirectly, this Lease or the leasehold estate hereby created or any
interest in this Lease or in such leasehold estate as well as the fee estate in
the Premises or any interest in such fee estate. In the event of a voluntary or
other surrender of this Lease, or a mutual cancellation hereof, Landlord may, at
its option, terminate all subleases, or treat such surrender or cancellation as
an assignment of such subleases.
Section 30.04. Limitation of Liability. Any and all covenants,
undertakings and agreements herein made on the part of Landlord are made and
intended not as personal covenants, undertakings and agreements or for the
purpose of binding Landlord personally or the assets of Landlord except
Landlord's interest in the Premises, but are made and intended for the purpose
of binding only the Landlord's interest from time to time in the Premises. No
personal liability or personal responsibility is assumed by, nor shall at any
time be asserted or enforceable against, Landlord or its agents, beneficiaries,
partners, or their partners, members, managers, officers, employees, directors
or shareholders on account of this Lease or on account of any covenant,
undertaking, or agreement of Landlord in this Lease contained, all such
liability being specifically waived by Tenant. Wherever in this Lease Landlord's
consent or approval is required, if Landlord refuses to grant such consent or
approval, whether or not Landlord expressly agreed that such consent or approval
would not be unreasonably withheld, conditioned or delayed, Tenant shall not
make, and Tenant hereby waives, any claim for money damages (including any claim
by way of set-off, counterclaim or defense) based upon Tenant's claim or
assertion that Landlord unreasonably withheld, conditioned or delayed its
consent or approval. Tenant's sole remedy shall be an action or proceeding to
enforce such provision, by specific performance, injunction or declaratory
judgment. In no event shall Landlord or Tenant be liable to the other, and each
party hereby waives any claim for, any indirect, consequential or punitive
damages, including loss of profits or business opportunity, arising under or in
connection with this Lease, even if due to the gross negligence or willful
misconduct of such party or of its agents or employees.
Section 30.05. Article Headings. The article headings contained in this
Lease are for convenience only and shall not enlarge or limit the scope or
meaning of the various and several articles hereof. Words of any gender used in
this Lease shall include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise requires.
Section 30.06. Joint and Several Obligations. If there be more than one
Tenant, the obligations hereunder imposed upon Tenant shall be joint and
several, and all agreements and covenants herein contained shall be binding upon
the respective heirs, personal representatives, successors, and, to the extent
permitted under this Lease, assigns of the parties hereto.
Section 30.07. No Representations. Neither Landlord nor Landlord's
agents or brokers have made any representations or promises with respect to the
Premises except as herein expressly set forth and all reliance with respect to
any representations or promises is based solely on those contained herein. No
rights, easements, or licenses are acquired by Tenant under this Lease by
implication or otherwise except as expressly set forth in this Lease.
Section 30.08. Entire Agreement. This Lease sets forth the entire
agreement between the parties and cancels all prior negotiations, arrangements,
brochures, agreements, and understandings, if any, between Landlord and Tenant
regarding the subject matter of this Lease. No amendment or modification of this
Lease shall be binding or valid unless expressed in a writing executed by both
parties hereto.
Section 30.09. Authority. The persons executing this Lease on behalf of
Landlord and Tenant represent and warrant respectively that Landlord and Tenant
have complied with all applicable laws, rules, and governmental regulations
relative to its right to do business in the state in which the Premises are
located, that such entity has the full right and authority to enter into this
Lease, and that all persons signing on behalf of the Landlord and Tenant were
authorized to do so by any and all necessary or appropriate corporate actions.
Landlord represents that it is the fee owner of the Land and will be the fee
owner of the Building upon completion of Landlord's Work.
Section 30.10. Lender Protection. If, in connection with obtaining debt
or equity financing for the Premises (including a sale leaseback) any lender,
investor or ground lessor shall request reasonable modifications to this Lease
as a condition to such financing, Tenant will not unreasonably withhold, delay,
or defer its consent thereto, provided that such modifications do not increase
the obligations of Tenant hereunder or adversely affect either the leasehold
interest hereby created or Tenant's use and enjoyment of the Premises.
Section 30.11. Governing Law. This Lease shall be governed by and
construed under the laws of the state in which the Premises are located. Any
action brought to enforce or interpret this Lease shall be brought in the court
of appropriate jurisdiction in the state in which the Premises are located.
Should any provision of this Lease require judicial interpretation, it is agreed
that the court interpreting or considering same shall not apply the presumption
that the terms hereof shall be more strictly construed against a party by reason
of the rule or conclusion that a document should be construed more strictly
against the party who itself or through its agent prepared the same, it being
agreed that all parties hereto have participated in the preparation of this
Lease and that legal counsel was consulted by each party hereto before the
execution of this Lease.
Section 30.12. Intentionally Omitted.
------------- ----------------------
Section 30.13. Landlord Access. Landlord and its agents, employees,
invitees and contractors may enter the Building and Premises at all reasonable
hours to exhibit the same to prospective purchasers or mortgagees or within the
last 12 months of the Lease term prospective tenants, to periodically at
reasonable intervals inspect the Building and Premises to see that Tenant is
complying with all its obligations hereunder, to make repairs to the Building or
Premises or for any other purpose expressly contemplated under this Lease.
Landlord shall (except in the event of any emergency, or if Landlord's presence
is requested by Tenant) give Tenant at least 24 hour prior notice of such access
and, during access, agrees to use reasonable efforts (without the obligation to
incur overtime labor) to minimize any interference with Tenant's business
operations.
Section 30.14. Exhibits. The exhibits referred to in the Basic Lease
Information are by this reference incorporated fully herein. The term "this
Lease" shall be considered to include all such exhibits.
Section 30.15. Rules and Regulations. Tenant shall, and shall cause its
employees, contractors and agents to, comply with and observe all reasonable
rules and regulations concerning the use, management, operation, safety and good
order of the Premises which may from time to time be promulgated by Landlord,
provided that such rules and regulations are not inconsistent with the
provisions of this Lease and do not (i) interfere (beyond a de minimis extent)
with Tenant's use of the Premises or (ii) increase monetary obligations of
Tenant hereunder; and Tenant is provided with notice thereof. Initial Rules and
Regulations, which shall be effective until amended by Landlord, are attached
hereto as Exhibit B. Tenant shall be deemed to have received notice of any
amendment to the Rules and Regulations when a copy of such amendment has been
delivered to Tenant at the Premises or has been delivered to Tenant in the
manner prescribed in Article 25 herein.
Section 30.16. Survival. All of Tenant's duties and obligations
provided for herein, including any and all indemnifications of Landlord and the
Premises, to the extent that the same shall not be fulfilled during the Term
hereof, and Landlord's rights and remedies in respect of such unfulfilled duties
and obligations, shall survive and remain in full force and effect
notwithstanding the expiration or sooner termination of the Term of this Lease.
Section 30.17. Financial Statements. Tenant, upon written request by
Landlord in connection with a (i) proposed sale of Landlord's interest in the
Land or Building or (ii) financing thereof, or (iii) Tenant default under the
Lease will provide Landlord with a copy of its current audited financial
statements, and related footnotes, prepared in accordance with generally
accepted accounting principles (except with respect to an assignee which is a
wholly-owned subsidiary of the Tenant and which assignee does not have separate
audited financial statements). Such financial statements must be either
certified by a certified public accountant or sworn to as to their accuracy by
Tenant's most senior official or its chief financial officer. The financial
statements provided must be the most recent financial statements in Tenant's
possession, but as of a date not more than sixteen (16) months prior to the date
of request.
Section 30.18. Unavoidable Delay. In the event Landlord or Tenant is in
any way delayed, interrupted or prevented from performing any of its obligations
under this Lease (except with respect to monetary obligations), and such delay,
interruption or prevention is due to fire, act of God, governmental act or
failure to act, strike, labor dispute, inability to procure materials, or any
other cause beyond such party's reasonable control (whether similar or
dissimilar), then the time for performance of the affected obligation(s) shall
be excused for the period of the delay and extended for a period equivalent to
the period of such delay, interruption or prevention.
Section 30.19. Recording of Lease. This Lease shall not be recorded,
however, either party may, at its expense, upon prior written request, record a
memorandum or short form of Lease in the land or other records of the County in
which the Premises is located and the non-requesting party shall cooperate with
the requesting party in connection therewith (unless Landlord's lender does not
permit same or recordation may adversely affect Landlord (as reasonably
determined by Landlord), then no such memorandum or short form of Lease shall be
recorded). The requesting party shall bear all taxes and fees in connection with
any permitted recordation.
Section 30.20. Roof and Other Installation Rights. (a) During the Lease
Term, provided an Event of Default does not then exist, Tenant is hereby
granted, subject to compliance with the terms of this Lease, including, without
limitation Articles 9, 10 and 12 hereof and the provisions of this Section 30.20
and such other reasonable requirements (the "Installation Requirements") as
shall be imposed by Landlord, (i) to protect the physical integrity of the
Building and Land and the equipment and installations thereon, (ii) to protect
the health or safety of occupants or visitors, or (iii) to comply with
applicable laws, the right to install, secure, maintain, replace and operate on
the roof of the Building and/or on the Land immediately adjacent to the Building
(to the extent space is available and legally permissible for such use) (the
"Installation Site") generators, Antennae and other equipment installed in
conformity with the terms of this Lease in connection with the Permitted Use,
whether or not owned by Tenant, but for the benefit of Tenant's business in the
Premises (collectively the "Installation Site Equipment"). The specifications
and location of the Installation Site Equipment shall be subject to Landlord's
reasonable approval, provided Landlord shall only take into consideration in
deciding whether to approve same, the Installation Requirements.
(b) Tenant shall diligently service, repair, paint and
maintain the Installation Site Equipment, as applicable, including, without
limitation, all electrical wires, guide wires and conduits related thereto.
(c) In the performance of any installation, alteration,
repair, maintenance, removal and/or any other work with respect to the
Installation Site or the Installation Site Equipment, Tenant shall comply with
all of the applicable provisions of this Lease, and the provisions of this
Article shall be applicable to the Installation Site as if the Installation Site
was part of the demised premises.
(d) Any and all taxes, filing fees, charges or license fees
imposed upon Landlord by virtue of the existence and/or use of the Installation
Site Equipment (including those shown to be specifically related to any increase
in the assessed valuation of the Building and/or Land attributable to the
Installation Site Equipment), whether imposed by any local, state and/or federal
government or any agency thereof, shall be exclusively borne by Tenant. Landlord
agrees to cooperate reasonably with Tenant in any necessary applications for any
necessary license or permits provided Landlord incurs no expense or liability in
so doing.
(e) On or before the termination of this Lease, Tenant shall
at Landlord's request, remove the Installation Site Equipment and any and all
appurtenant cables, wires, and other equipment and repair and restore the Roof
and any other damage caused to the Building and/or Land. Such repair and
restoration work shall proceed with due diligence and dispatch and shall be
completed on or before to the Expiration Date. Any holes, damage or injury in or
to the Installation Site and/or Building and/or Land arising out of or connected
to the removal of the Installation Site Equipment and any or all appurtenant
cables, wires, and other equipment shall be promptly and duly repaired and
restored by Tenant at Tenant's sole cost and expense.
(f) Throughout the duration of this Lease, Tenant shall
inspect the Installation Site Equipment at least once a month. Tenant shall be
solely responsible for preserving the water tight integrity of the Roof as may
be caused by, or relates to, the installation, maintenance, operation and repair
of the Installation Site Equipment. Tenant shall be responsible for all leaks in
the Roof arising out of or connected to its installation. Tenant's Installation
Site Equipment shall not exceed the applicable load-bearing capacity of the
Installation Site, and shall not adversely affect Landlord's roof warranties.
(g) Except as otherwise expressly provided herein (including
as provided in Exhibit D), Tenant agrees that Landlord has made no warranties or
representations as to the condition or suitability of the Installation Site, the
Building and/or Land (or the electricity available to the Installation Site) for
the installation, use, maintenance or operation of the Installation Site
Equipment, and Tenant agrees to accept same in its "as is" condition and without
any work or alterations to be made by Landlord.
Section 30.21. Tenant Representative. Tenant hereby designates the
President (currently Charles Auster) ("Tenant's Representative") (telephone no.
201-840-4981) with whom Landlord may speak or direct correspondence relating to
the Premises, this Lease or Tenant's business operations conducted from the
Premises. Tenant shall ensure that Tenant's Representative shall be available to
speak with Landlord on reasonable prior notice, either by telephone or in
person, to speak or meet with Landlord regarding the Premises, this Lease or
Tenant's business operations conducted from the Premises. If such Tenant
Representative ceases to be an officer of Tenant, Tenant shall appoint a
successor Tenant Representative acceptable to Landlord, and Tenant shall provide
Landlord with the information for such successor Tenant Representative as
described above in this Section 30.21.
ARTICLE 31
OMITTED
ARTICLE 32
BACKUP ELECTRICAL GENERATORS
Provided Tenant and the generators (and all improvements and equipment
associated therewith) comply with all applicable laws, and subject to Landlord's
prior approval of all plans and specifications and other improvements and
equipment associated therewith, as stated in Article 10 above Landlord shall
permit Tenant to install, at Tenant's sole cost and expense, backup electrical
generators on the roof of the Building (and if permitted by applicable laws, the
Land) (in which event same shall constitute Roof Equipment). Tenant recognizes
that Landlord shall seek to minimize the potential interference that the
operation of the generators may cause occupants of adjacent buildings, and, if
required by law, such testing to be performed during hours other than 8:00
a.m.-6:00 p.m. Monday through Friday, except federal holidays. Tenant shall
maintain the generators (including any generators installed by Landlord) and all
improvements and equipment associated therewith in good condition and repair,
and in compliance with all applicable statutes, regulations and rules, at all
times.
ARTICLE 33
NET LEASE
Tenant acknowledges and agrees that it is intended that this is a net
lease of the Building that is completely carefree to Landlord, except as
expressly set out in this Lease; that Landlord is not responsible during the
Term for any costs, charges, expenses, and outlays of any nature whatsoever
arising from or relating to the Premises, or the use and occupancy thereof, or
the contents thereof, or the business carried on therein, except as expressly
set out in this Lease; and Tenant shall pay all charges, expenses, costs, and
outlays of every nature and kind relating to the Premises except as expressly
set out in this Lease. Landlord is not and shall not be required to render any
services of any kind to Tenant, except as otherwise specifically set forth in
this Lease.
EXECUTED under seal as of the date first written above.
LANDLORD
WITNESS/ATTEST BECO-TERMINAL LLC, a Virginia limited liability company
By: Data Centers Now LLC, a Delaware limited liability
company
By: (SEAL)
--------------------------------------------
Print Name: Christopher Epstein Hereford
Title: President
TENANT
WITNESS/ATTEST INFOCROSSING, INC.
By: (SEAL)
--------------------------------------------------
Print Name:
Title:
STATE OF )
--------------------------------------------
) TO WIT:
COUNTY OF )
-------------------------------------------
I, _________________________________, a Notary Public of the State and
County aforesaid, do certify that ___________________________, the person whose
name is signed to the foregoing Deed of Lease on behalf of the LANDLORD
thereunder, personally appeared before me, the said person being personally
well-known to me as (or satisfactorily proven to me to be) the person named
herein, and acknowledged the same before me in my County aforesaid as his/her
act and deed on behalf of and with the authority of the LANDLORD thereunder, and
delivered the same as such.
Given under my hand and official seal this ______ day of
________________, 20_____.
[Notary Seal]
Notary Public
My Commission Expires:_____________________
STATE OF )
--------------------------------------------
) TO WIT:
COUNTY OF )
-------------------------------------------
I, _________________________________, a Notary Public of the State and
County aforesaid, do certify that ___________________________, the person whose
name is signed to the foregoing Deed of Lease on behalf of the TENANT
thereunder, personally appeared before me, the said person being personally
well-known to me as (or satisfactorily proven to me to be) the person named
herein, and acknowledged the same before me in my County aforesaid as his/her
act and deed on behalf of and with the authority of the TENANT thereunder, and
delivered the same as such.
Given under my hand and official seal this ______ day of
________________, 20_____.
[Notary Seal]
Notary Public
My Commission Expires:_____________________
VIRGINIA LEASE A-1
EXHIBIT A
DESCRIPTION OF THE LAND
All the following described parcel or tract of land together
with all improvements and appurtenances located thereon, situate, lying and
being off Shaw Road and Terminal Drive, County of Loudoun, Virginia, Lot 1,
Commonwealth Center, as the same is duly dedicated, platted and recorded in Deed
Book 828 at page 653, among the Land Records of Loudoun County, Virginia,
containing 4.2229 acres.
Less and Except that portion of the property conveyed to the
Commonwealth Transportation Commissioner by Certificate of Taking in Deed Book
952 at page 1010 and final order recorded in Deed Book 1027 at Page 1540 and in
Deed book 1029, at Page 10, among the aforesaid land records.
VIRGINIA LEASE B-1
EXHIBIT B
RULES AND REGULATIONS
(BUILDING LEASE)
a. All waste paper, refuse and garbage shall be kept in containers on
or about the Building and/or the Premises in a reasonably neat and orderly
fashion and such refuse shall be removed by Tenant at Tenant's sole expense.
b. Any advertisement or other marketing activity of Tenant (except for
address references only) using the name of the Building shall be subject to
Landlord's approval.
c. Absent the specific prior written approval of Landlord, and except
as expressly stated in Permitted Uses, no space in the Building or Premises
shall be used for manufacturing or for the sale of merchandise, goods, or
property of any kind.
d. No portion of the Premises may be used for lodging or sleeping
or for any immoral or illegal purpose.
e. Tenant shall not exceed the capacity of the electrical
facilities then serving the Premises.
f. If Tenant shall fail to correct or cure a violation of a rule or
regulation in this Exhibit E after the notice period referred to in the Lease
with respect to a similar type of default, same shall constitute an Event of
Default under the Lease.
VIRGINIA LEASE C-1
EXHIBIT C
DECLARATION BY LANDLORD AND TENANT
AS TO LEASE COMMENCEMENT DATE
THIS DECLARATION is hereby attached to and made a part of the Lease
dated the day of , 20____, entered into by and between BECO-TERMINAL I LLC, as
Landlord, and INFOCROSSING, INC., as Tenant. All terms used in this Declaration
have the same meaning as they have in the Lease.
1. Landlord and Tenant do hereby declare that possession of the
Premises was accepted by Tenant on the ____ day of ______________, 20___;
2. As of the date hereof, the Lease is in full force and effect,
and Landlord has fulfilled all of its obligations under the Lease required to be
fulfilled by Landlord on or prior to said date; and
3. The Lease Commencement Date is hereby established to be _________,
20__, and subject to Tenant's right to extend the Term of the Lease pursuant to
Section ___ of the Lease, the Expiration Date is ____________________, 20___.
LANDLORD
WITNESS/ATTEST BECO-TERMINAL LLC
By: Data Centers Now LLC
By: [Example Only-Do Not Sign] (SEAL)
--------------------------------------------
Print Name: Christopher Epstein Hereford
-----------------------------------
Title: President
---------------------
TENANT
WITNESS/ATTEST INFOCROSSING, INC.
By: [Example Only-Do Not Sign] (SEAL)
----------------------------------------------
Print Name:
Title:
VIRGINIA LEASE D-3
EXHIBIT D
DESCRIPTION OF LANDLORD'S WORK
Cyber Fortress TM I
45580 Terminal Drive
Dulles, Loudoun County, Virginia
ARCHITECTURAL & STRUCTURAL
Fortress Construction
o Single-story, steel and reinforced concrete tilt-up facility containing
54,400 rentable square feet
Exterior walls
o 7.25" thick, reinforced 4000psi concrete tilt-up panels designed to
resist 150 mph wind resistance
Exterior Glass
o Building facade has no window penetrations. Exterior spandrel glass to
be placed over concrete panels at entrance
Ceiling Height
o 18' clear throughout (slab to bottom of joist)
Column Spacing
o 30'x 40' (nominal)
Floor Load
o 350 lbs per square foot live load
Roof Design
o Deck: Lightweight reinforced concrete
o Roof System: Built-up roof system (Factory Mutual specifications)
rated to 150 mph wind resistance with twenty year manufacturer's
warranty, over 2" polyisocyanurate and1/2" recovery board
o Drainage: Roof water to be conveyed via external scuppers and
downspouts. The structure is entirely free of internal roof drains
ELECTRICAL
Primary & Alternative Electrical Services/Density
o Electrical service delivered via Virginia Power, Circuit 705, Sterling
Park substation, Sterling, Virginia
o Initial installation of 6,500 amps/480v/ 3 Phase of electrical service
o Design provisions and conduits in place for future installation of
redundant alternate power feed sourced from Virginia Power (Tenant
responsible at Tenant's sole expense for installation of redundant
power feed)
o Initial installation of two (2) 3000 amp distribution switchboards
complete with "rack in" breakers. Landlord shall, outside of Landlord's
Work, install two additional 3000 amp distribution switch boards
complete with "rack in" breakers upon Tenant's request and designation
of location.
Generator Provisions
o Above roof, column supported steel generator dunnage capable of four (4) 2,000
kW generators o Initial installation of one (1) 2,000 kW Caterpillar generator
set with enclosure on paralleling
switchgear capable of providing modular expandability to three (3)
additional 2000 kW generators (Installation of such three additional
generators shall be the responsibility of Tenant at Tenant's sole
expense)
o Initial installation of (1) 20,000 gallon underground fuel storage
tank; fuel line; designated fuel pump room; duplex fuel pump; day tank
and connections to the pre-installed generator
Lightning Protection
o Installation of redundant Active and Passive lightning protection
systems
Grounding System
o Provisions for Equi potential signal ground grid (Exterior ground ring;
connection to steel, water service, entrance gear and provisions for
Tenant's connections)
COMMUNICATIONS
Fiber Optics
o Two (2) diverse Points of Entry with initial installation of twelve (12) 4"
conduits at each POE o "Room Ready" Demarcation Area for telecommunications
pre-installation o Design provisions for triple overhead racks (Hanging weight
up to 100lbs/LF)
Satellites
o Designated roof-top satellite bay
MECHANICAL
Air Conditioning
o Landlord shall outside Landlord's Work, at Landlord's cost, install one
(1) Liebert CRAC and Direct Expansion Cooling Unit in Demarcation Room
outside (Location of Demarcation Room to be determined by Tenant and
installed by Landlord following completion of Landlord's Work)
o Design provisions for independent Direct Expansion Cooling Units and
CRAC units (Tenant shall be responsible for installing air conditioning
equipment at Tenant's sole expense)
FIRE PROTECTION
Fire Detection
o Design provisions for high sensitivity smoke detection (Tenant shall be
responsible for installing all fire protection devices, at Tenant's
sole expense)
RESTROOMS
o Rough-in of two ADA compliant restroom facilities
SECURITY
o Outside Landlord's Work, Landlord shall, at Landlord's cost, install
perimeter fencing, ballards and controlled access parking and loading
areas as reasonably directed by Tenant, provided the cost incurred by
Landlord in connection therewith does not exceed $200,000.
o Exterior door is ballistic grade glass
PARKING
o 153 striped spaces as set forth on the site plan depicting the Land and
improvements to be constructed thereon as presently contemplated, which
site plan is attached hereto as Exhibit D-1
VIRGINIA LEASE D-1-1
EXHIBIT D-1
SITE PLAN
ATTACHED
VIRGINIA LEASE E-1
EXHIBIT E
ALTA ENDORSEMENT
ATTACHED
THIS IS AN INTEGRAL PART OF LETTER OF CREDIT NUMBER: ____________________
VIRGINIA LEASE F-2
EXHIBIT F
LETTER OF CREDIT
STANDBY LETTER OF CREDIT NO.
DATE OF ISSUE: ________________
ISSUING BANK: APPLICANT:
BENEFICIARY:
AMOUNT/CURRENCY:
DATE AND PLACE OF EXPIRY:
GENTLEMEN:
We hereby issue this Irrevocable Letter of Credit No. ________ in your favor,
for the account of Infocrossing, Inc. in the aggregate amount of USD _________
available by your draft(s) drawn on us at sight, accompanied by the following:
1. Beneficiary's written dated certification on their letterhead signed by
an authorized signatory, being an officer or member of beneficiary or
its member, reading as follows:
"We hereby certify that we are entitled under the terms and conditions
of the Lease Agreement dated ____________ between Infocrossing, Inc.
and _______________ to, and hereby draw upon this Letter of Credit in
the amount of USD ___________."
2. The original of this Letter of Credit and amendment(s), if any.
It is a condition of this Letter of Credit that it shall be automatically
extended without amendment for period(s) of one year each from the current or
any future expiration date unless at least sixty (60) days prior to the then
current expiration date we shall notify the Beneficiary in writing, via
registered mail, at the above listed address of our intention not to renew this
Letter of Credit for such additional period. Any such notice shall be effective
when sent by us and upon such notice to you, you may draw at any time prior to
the then current expiration date, up to the full amount then available hereunder
against your draft(s) drawn on us at sight accompanied by the original of this
Letter of Credit and all amendments thereto, together with the certification
above described.
This Letter of Credit is transferable to Beneficiary's successor owner of the
Premises in full and not in part. Any transfer made hereunder must conform
strictly to the terms hereof and to the conditions of the Uniform Customs and
Practices for Documentary Credits (1993) fixed by the International Chamber of
Commerce, Publication No. 500. Should you wish to effect a transfer under this
Credit, such transfer will be subject to the return to us of the original credit
instrument, accompanied by our form of transfer, properly completed and signed
by an authorized signatory of your firm, bearing your banker's stamp and
signature authentication, subject to payment of our customary transfer charges
of 1/4 of 1% minimum of $200.00, provided that, in the case of the initial
transfer of the Letter of Credit by BECO-TERMINAL, LLC, such payment shall be
for the account of Applicant.
Partial drawings are permitted.
Draft must state "Drawn under Fleet Bank NA Standby L/C No. _____ dated
_______."
Draft(s) and documents may be presented at our offices at One Fleet Way,
Scranton, PA 18507, Attn: Trade Services Dept. - Standby Unit.
We hereby agree with you that your draft drawn under and in compliance with the
terms of this Letter of Credit shall be duly honored upon due presentation to
us, together with the certification above described.
We agree that the drawings under this Letter of Credit will be paid from our own
funds and that the obligation of Fleet Bank NA under this Letter of Credit is
the sole obligation of Fleet Bank NA and shall not be contingent upon
reimbursement with respect thereto.
This Letter of Credit is subject to the Uniform Customs and Practices for
Documentary Credit (1993), the International Chamber of Commerce, Publication
No. 500.
---------------------------------------------------------
Authorized Signature
THIS DOCUMENT CONSISTS OF 2 PAGE(S).