Exhibit 10.2
BASIC LEASE INFORMATION RIDER
T-REX TECHNOLOGY CENTER OF THE AMERICAS @ MIAMI
The terms of this Basic Lease Information Rider ("Rider") contain
fundamental information relating to the Lease, many of the principal economic
terms, the commencement dates, and related obligations. The Rider and the Lease
are, by this reference, hereby incorporated into one another. Terms defined
herein apply both fox the purpose of this Rider and the Lease. Capitalized terms
that are defined in the Lease have the same meaning when used in this Rider, In
the event of any conflict between the terms of the Rider and the terms of the
Lease, the terms of the Rider shall control.
1. Lease Date: October 16, 2000 ("Effective Date").
2. Landlord: Technology Center of the Americas LLC, a
Delaware limited liability company.
3. Tenant: NAP of the Americas, Inc., a Florida
corporation.
4. Building: The Building is a building to be built and
consisting of the improvements to the real
property described and depicted on Exhibit
A. The address of the Building is 50
Northeast Ninth Street, Miami, Florida
33132.
5. PREMISES:
A. The Premises is located on the second floor of the Building and is
shown on Exhibit B-1 attached to the Lease. In addition to Tenant's right to use
and occupy the Premises, Tenant shall be entitled to use and occupy, for the
placement of its Ancillary Equipment, the Tenant's Equipment Area. For purpose
of this Rider and the Lease, the term "Ancillary Equipment" includes, but is not
limited to, Tenant's back- up generator and related fuel storage tanks,
antennas, dry coolers and related heating, ventilation and air conditioning
("HVAC") systems and equipment, fiber optic cable, conduits, horizontal and
vertical shafts; electrical and power vaults, power lines from the main entry
point into the Building, power lines from Tenant's back-up generator, and
related systems and equipment. For the purpose of this Rider and the Lease, the
term "Tenant's Equipment Area" means the risers, equipment pods, platforms
and/or structurally supported roof areas identified and allocated for Tenant on
Exhibit B-2 attached to the Lease.
B. Tenant shall have access to the Premises and to Tenant's Equipment
Area twenty-four (24) hours per day, seven (7) days per week. Tenant shall
obtain, in advance and at its own cost, all permits and approvals required from
any municipal or governmental authority necessary for it to use and occupy
Tenant's Equipment Area for Tenant's intended purposes and to install Tenant's
Ancillary Equipment. Landlord's prior written approval, not to be unreasonably
withheld, shall be obtained with respect to the specific equipment Tenant
desires to place in Tenant's Equipment Area. Tenant acknowledges that Landlord
may have reserved certain risers, pads, roof locations, and similar areas of the
Building for lease to tenants who have in excess of building standard need for
such areas.
6. RENTABLE AREA: The Rentable Area of the Premises is 149,184 square
feet on the second floor of the Building. The Rentable Area consists of (i) the
rentable square footage of the Premises for either full floor or partial floor
tenants (as appropriate), increased by (ii) a common equipment core factor (the
"Equipment Core Factor") of 1.24. The Equipment Core Factor has been computed by
Landlord's architect and takes into account the areas of the Building (of which
Tenant's Equipment Area is a pad) made available to tenants of the Building for
the location of their Ancillary Equipment. At Landlord's or Tenant's request,
the floor area of the Premises shall be remeasured by Landlord's architect after
possession of the Premises is delivered to Tenant (but before the Rent
Commencement Date), and to the extent the floor area ]S revised as a result of
such remeasurement, the rentals and other charges set forth herein shall be
equitably and proportionately adjusted (and the parties shall execute a written
lease amendment to confirm the changes, if any).
7. PROPORTIONATE SHARE: Tenant's Proportionate Share is a fraction,
stated in decimal terms, the numerator of which is the Rentable Area of the
Premises and the denominator of which is 745,922. Tenant's Proportionate Share
is agreed to be twenty percent (20.00%) (unless Tenant occupies additional
space, in which event Tenant's Proportionate Share shall be recomputed, by using
the increased Rentable Area as the numerator and 745,922 as the denominator).
8. LEASE COMMENCEMENT DATE AND DELIVERY DATE: It is understood and
agreed that, notwithstanding the fact that the Lease Commencement Date and the
Delivery Date shall be the same date, which shall be the date of substantial
completion of Landlord's Work as described in Exhibit C to the Lease, this Lease
shall be effective on the Effective Date. It is understood and agreed that in
the event that Tenant is authorized to have access to the Premises prior to the
Delivery Date all of the terms and conditions of this Lease, except for the
obligation to pay Base Rent and, if applicable, Additional Rent, shall commence
in accordance with paragraph 9 below, the terms and conditions of this Lease
shall then be in effect.
9. RENT COMMENCEMENT DATE: The Rent Commencement Date is ninety (90)
days following the Delivery Date. The Rent Commencement Date is the date on
which the Base Rent and the Additional Rent shall commence being paid by Tenant.
10. EXPIRATION DATE: The last day of the month which is twenty (20)
years after the Rent Commencement Date, subject to the terms contained in
Section.
11. LEASE TERM: From the Lease Commencement Date to the Expiration
Date, unless extended or sooner terminated in accordance with the Lease.
12. RENEWAL OPTIONS:
A. Landlord grants to Tenant two (2) options to extend the Lease Term
for an additional period of five (5) years each ("Renewal Term"), under the
terms and conditions hereinafter set forth. Tenant may only validly exercise the
aforesaid options to extend if: (a) the Lease is in fill force and effect at the
time of the exercise of said option, and the Tenant is not in default of the
Lease at such time and at the time that the extension of the Term would take
effect; (b) Tenant shall be in possession of the entire Premises, except to the
extent that a different party is properly in possession of all or any part of
the Premises pursuant to the terms of the Lease, and (c) Tenant shall have
exercised the option to extend by delivering a notice (the "Notice") in writing
to the Landlord not later than twelve (12) months prior to the expiration of the
then-current Lease Term. Failure to exercise the first option shall result in
the automatic termination of the second option.
B. The Base Rent for each Renewal Term shall be the then-effective
"Market Rent" as determined in accordance with this section, but in no event
shall such Market Rent be less than the Base Rent in effect at the conclusion of
the prior Term. "Market Rent", including escalations for successive years, shall
be determined by Landlord in its reasonable judgment. Landlord's determination
shall be based upon then-current and projected rents in the Building, adjusted
for any special conditions applicable to such space and lease;, for location,
length of term, amounts of space and other factors that Landlord deems relevant
in computing rents for space in the Building, including adjustments for
anticipated inflation. Landlord shall determine the Base Rent for the first year
of any Renewal Term on a price per square foot basis ("Renewal Term Rental
Rate"). The Renewal Term Rental Rate shall then be multiplied by the Rentable
Area. Thereafter, the first year Base Rent for the Renewal Term will be annually
adjusted (on the anniversary date of the beginning of the Renewal Term) by three
percent (3.0%) compounded annually. Landlord shall provide Tenant in writing
with its determination of the then-effective Market Rent within thirty (30) days
after receipt of the Notice. Landlord and Tenant shall negotiate in good faith
to agree upon such Market Rent; provided, however, that if Tenant is not
satisfied with Landlord's determination of Market Rent, Tenant may, prior to the
day nine (9) months before the Expiration Date for the then current Lease Term
either (i) withdraw the Notice, or (ii) submit the determination of Market Rent
to Binding Arbitration pursuant to the provisions of paragraph 12C of this
Rider. The election of (i) or (ii) shall be in writing.
C. If Tenant elects Binding Arbitration to determine the Market Rent,
then with such election Tenant shall identify an independent real estate
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appraiser licensed in Miami, Dade County, Florida, with at least ten (10) years
experience in telecommunications leasing and appraising in the central downtown
business district. Landlord shall, within fifteen (15) days, select a similarly
experienced appraiser, and the TWO promptly shall select a third appraiser with
similar qualifications. The appraisers shall be instructed to determine within
thirty (30) days the Market Rent for the Premises as of the beginning of the
Renewal Term in question, assuming (1) the Premises are delivered to a tenant in
their "as-is" condition, but with all of Tenant's equipment removed (it being
agreed that for this purpose Tenant's equipment shall not include light
fixtures, HVAC systems and equipment and fire suppression system and equipment,
which shall be deemed to remain in the Premises). The average of the two brokers
who are closest together in rental rate shall be deemed to be the Market Rent.
The Market Rent so established shall be subject to Three percent (3.0%) annual
increases, and in no event shall it be less than the Base Rent then in effect
for the Premises increased by three percent (2.0%). All other economic and other
terms of this Rider (including, by way of example only, the Additional Rent
provisions) and of the Lease shall remain in fill force and effect Ewing any
Renewal Term. Landlord and Tenant independently shall pay the appraiser they
select and shall share equally the cost of the third appraiser.
13. BASE RENT: Beginning on the Rent Commencement Dale (it being
understood that the table shown below reflects Base Rent for twenty (20) years
from the Rent Commencement Date and which Base Rent begins at $16.00 per
Rentable Square Foot and escalates at the rate of 3% compounded annually through
the Term, and additionally increased by $1.50 per Rentable Square Foot after the
fifth, tenth and fifteen years of the Term), Tenant shall pay the Base Rent
described below, p]us applicable sales taxes and applicable local taxes
YEAR RENT/SF ANNUAL BASE RENT MONTHLY BASE RENT
---- ------- ---------------- -----------------
1 $ 16.00 $ 2,386,944.00 $ 198,912.00
2 $ 16.48 $ 2,458,552.32 $ 204,879.36
3 $ 16.97 $ 2,532,308.89 $ 211,025.74
4 $ 17.48 $ 2,608,278.16 $ 217,356.51
5 $ 18.01 $ 2,686,526.50 $ 223,877.21
6 $ 20.05 $ 2,990,898.30 $ 249,241.52
7 $ 20.65 $ 3,080,625.24 $ 256,718.77
8 $ 21.27 $ 3,173,044.00 $ 264,420.33
9 $ 21.91 $ 3,268,235.32 $ 272,352.94
10 $ 22.56 $ 3,366,282.38 $ 280,523.53
11 $ 24.74 $ 3,691,046.85 $ 307,587.24
12 $ 25.48 $ 3,801,778.26 $ 316,814.85
13 $ 26.25 $ 3,915,831.61 $ 326,319.30
14 $ 27.04 $ 4,033,306.56 $ 336,108.88
15 $ 27.85 $ 4,154,305.75 $ 346,192.15
16 $ 30.18 $ 4,502,710.92 $ 375,225.91
17 $ 31.09 $ 4,637,792.25 $ 386,482.69
18 $ 32.02 $ 4,776,926.02 $ 398,077.17
19 $ 32.98 $ 4,920,233.80 $ 410,019.48
20 $ 33.97 $ 5,067,840.81 $ 422,320.07
14. ADDITIONAL RENT: Additional Rent consists of Tenant's Proportionate
Share of the sum of Operating Charges, the Real Estate Taxes and any other
expenses passed through to Tenant under the Lease, as more filly set forth in
Article 5 of the Lease.
15. OPERATING CHARGES: As described in Article 5 of the Lease.
16. REAL ESTATE TAXES: As described in Article S of the Lease.
17. SECURITY DEPOSIT PAID: No security deposit shall be required to be
paid hereunder.
18. USE OF PREMISES: The installation, operation, and maintenance of
telecommunications equipment and transmission facilities, including, but not
limited to, a local and long distance switch, node, customer co-location, public
and private peering and related equipment, together with general offices and
other uses normally related thereto and permitted by law.
19. PARKING SPACES: Tenant may lease up to its proportionate share of
one hundred ten (110) parking spaces within the Building at the then-prevailing
market rate for covered parking spaces within the central business district of
Miami, Florida, and up to fifty (50) additional off-site, uncovered parking
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spaces on an unreserved basis at a location to be designated by Landlord within
one thousand (1000) feet of the Building at the then-prevailing market rate for
parking spaces. Notwithstanding the foregoing, Landlord shall have the right,
upon thirty (30) days' written notice to Tenant, to recapture up to five (5) of
Tenant's parking spaces, if, in Landlord's reasonable discretion, Landlord
elects to use such spaces for tenant equipment areas; provided, however, that
Landlord shall recapture parking spaces proportionately from all tenants based
substantially on their leaseable floor area in the Building.
20. TENANT'S ADDRESS FOR NOTICES:
NAP of the Americas, Inc.
2601 South Bayshore Drive, Suite 900
Miami, FL 33133
Attn: Brian Goodkind
21. TENANT'S REPRESENTATIVE FOR BUILD-OUT:
NAP of the Americas, Inc.
2601 South Bayshore Drive, Suite 900
Miami, FL 33133
Attn: Greg Lopez, Project Manager
22. TENANT'S APPROVED CONTRACTOR:
Terremark Technology Contractors, Inc.
2601 South Bayshore Drive, Suite 900
Miami, FL 33133
Attn: Ed Jacobsen, President
23. BROKER(S): Landlord recognizes Telecom Routing Exchange Developers,
Inc., as the brokers in connection with this transaction, and they shall be
compensated pursuant to a separate letter agreement.
24. TENANT ACCESS FOR TENANT WORK: Tenant shall be &anted access to the
Premises for the purpose of performing its Tenant Work commencing on the
Delivery Date; provided, that in no event may Tenant commence any Tenant Work
until Tenant has received Landlord's written approval of all of Tenant's plans
and specifications for such work, the approval of Tenant's proposed contractor,
and of the location of Tenant's Equipment within the Tenant's Equipment Area,
which approval shall not be unreasonably withheld or delayed. Tenant shall pay a
reasonable market rate fee to Landlord for its review of Tenant plans and
supervision of Tenant's proposed construction.
25. EQUIPMENT TESTING: Tenant shall test and otherwise "exercise" its
redundant HVAC and power equipment and facilities on a regular periodic basis,
although such testing shall be in accordance with reasonable rules and
regulations established by Landlord from time-to-time in its discretion for the
purpose of reducing the inconvenience to other tenants of the Building, as well
as synchronize the timing of exercising all equipment of all tenants in the
Building.
26. MANAGEMENT. The Building shall be professionally managed for
Landlord by a management company (which may be affiliated with Landlord)
selected by Landlord.
27. CORPORATE GUARANTY. Terremark Worldwide, Inc. has executed a
corporate Guaranty of Lease, winch is attached to the Lease and made a part
thereof as Exhibit F.
28. TENANT EXECUTION AND DELIVERY. Notwithstanding anything to the
contrary herein or in the Lease, Tenant expressly covenants and agrees that the
execution and delivery of this Rider and the tease by Tenant constitutes an
offer by Tenant to lease the Premises on the terms and conditions stated in the
Rider and Lease, and that Tenant may not withdraw this offer to lease unless
Landlord fails to execute arid deliver fully executed counterparts of the Rider
and Lease on or before 5:00 pm (EST), Friday, October 27, 2000.
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29. COVENANTS. Landlord covenants that, except for its p re-existing
lease to Global Crossing Telecommunications, Inc., it shall not lease any space
within the Building to the following entities which are "NAP'" providers: PAIX,
InterNAP, GlobalNAP, Teleplace, or any existing or planned "MIX's", "NAP's" or
"MAE's". The parties further agree and acknowledge that Tenant shall have the
exclusive right to provide a general building cross-connection point for
telecommunications services within the Building, also known as a "meet me room".
The rates charged by the Tenant to tenants in the Building for connection to the
cross-connection point (meet me room) shall not exceed the current market rates
("Current Market Rates") in effect for such services from time to time. The
existing market rates ("Existing Rates") for each individual connection to the
cross-connection point (meet me room) are as follows: T1/El - $50/$75 per
connection; DS3 - $200 per connection; OC-3 - $295 per connection. The Existing
Rates shall not be subject to adjustment in accordance with changes in the
Current Market Rates for a period of one (1) year from the date of this Lease.
Thereafter, the Existing Rates shall be adjusted in accordance with changes in
the Current Market Rates then in effect. In no event shall this general building
cross-connection point preclude other tenants in the Building from using the
riser space within the Building to service their own conduit or to interconnect
with others who are co-locating in such tenant's space.
30. TENANT IMPROVEMENTS. Tenant covenants and agrees to spend at least
$266.67 per square foot of Rentable Area for tenant improvements (which for
these purposes shall be deemed to include all hard and soft costs paid for
tenant improvements and for equipment, and shall also include all fees and
expenses paid by the tenant to consultant;, including fees and expenses paid to
Telcordia, but excluding fees paid to Terremark Worldwide, Inc., T-Rex Miami,
LLC or their respective Affiliates) within 18 months after the earlier of the
Rent Commencement Date of this Lease or the substantial completion of the
Building ("Completion Date"). In the event that such improvements are not
completed on or before the Completion Date, such failure shall constitute a
default by Tenant under this Lease. In order to evidence completion of such
improvements and the expenditure of the sums set forth above, Tenant shall
deliver substantiation of such expenditures to Landlord-within thirty (30) days
of the expiration of the 18 month period described above. Any objections to such
substantiation shall be given by Landlord to Tenant in writing and Tenant shall
have thirty (30) days from its receipt of such notice to provide Landlord with
evidence of compliance.
31. MODIFICATIONS TO LEASE. The parties hereby acknowledge that
Sections 6.1(d) and 12.1 of the Lease are hereby deleted and of no further force
and effect.
IN WITNESS WHEREOF, the parties hereto have executed this Basic Lease
Information Rider on this ____ day of October, 2000, intending that it be, and
the same hereby is, incorporated into and made a part of the T-Rex Technology
Center of the Americas @ Miami Lease.
(Executions continue on following page)
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Attest: Tenant:
[ILLEGIBLE] NAP of the Americas, Inc., a Florida corporation
- -------------------
[ILLEGIBLE] By: /s/ BRAIN K. GOODKIND
- ------------------- --------------------------------------------------
Name: Brian K. Goodkind
Title: Senior Vice President
Landlord:
[ILLEGIBLE] Technology Center of the Americas, LLC, a Delaware
- ------------------- limited liability company
[ILLEGIBLE] By: /s/ MICHAEL KATZ
- ------------------- -----------------------------------------
Vice President of Telecom Routing Exchange Developers,
Inc., its Manager
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T-REX TECHNOLOGY CENTER OF THE AMERICAS
@MIAMI
LEASE AGREEMENT - - STANDARD PROVISIONS
THIS LEASE AGREEMENT ("Lease") is dated as of the 16th day of October,
2000, by and between Technology Center of the Americas LLC, a Delaware limited
liability company ("Landlord"), and NAP of the Americas, Inc., a Florida
corporation ("Tenant").
ARTICLE 1
INCORPORATION OF BASIC LEASE INFORMATION RIDER\
1.1 The Basic Lease Information Rider ("Rider") attached hereto, and
all of the defined terms contained therein, are incorporated herein by reference
and made a part hereof.
ARTICLE 2
PREMISES
2.1 (a) Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, the Premises, for the term and upon the conditions and covenants set
forth herein. The Premises are outlined on EXHIBIT B-I, which is attached hereto
for locational purposes only and by this reference made a part hereof.
(b) In addition to the occupancy of the Premises, Tenant and
its officers, employees, agents, customers and invitees also shall have
the right to i he non-exclusive use of public parking areas (as
distinguished from parking areas or portions hereof that are
specifically licensed to tenants of the building from time-to-time
during the Term hereof), walkways, landscaped areas, driveways and
sidewalks within the Building that are designated by Landlord from time
to time as areas for the common use of all tenants (the "Common
Areas"). Landlord agrees to make the Common Areas continuously
available to Tenant for the non-exclusive use by Tenant, other tenants
and the their respective officers, employees, agents, customers and
invitees during the Lease Term and any extension thereof, except when
portions of the Common Areas temporarily may be unavailable for use by
reason of repair work then being underway thereon and as a result of
the temporary use of such Common Areas by Landlord and other tenants
and their respective contractors while they are engaged in the
construction and/or renovation of other areas of the Building. Landlord
shall have the right from time to time temporarily to close the Common
Areas to prevent the acquisition of public rights thereon. Landlord
shall, as part of Operating Charges, operate and maintain the Common
Areas during the Lease Term and any extensions thereof in good order
and repair in accordance with the standards of comparable Buildings in
the area in which the Premises are located.
ARTICLE 3
TERM
3.1 The Lease Term shall be as set forth on the Rider and stall
continue for the period set forth thereon. The Lease Team shall also include any
renewal or extension of the term of this Lease as described in the Rider.
3.2 The Rent Commencement Date shall be the date set forth in the
Rider.
3.3 "Lease Year" shall mean a period of twelve (12) consecutive months,
the first such Lease Year to commence on the Lease Commencement Date; provided,
however, that if the Lease Commencement Date is not the first day of a month,
then the first Lease Year shall commence on the Lease Commencement Date and
shall continue for tie balance of the month in which the Lease Commencement Date
occurs and for a period of twelve (12) consecutive months thereafter. Each
succeeding Lease Year shall be a period of twelve (12) consecutive months
commencing immediately upon the expiration of the prior Lease Year.
ARTICLE 4
BASE RENT
4.1 Commencing on the Rent Commencement Date and luring each Lease Year
of the Lease Term, Tenant shall pay the Base Rent specified in the Rider
attached hereto and made a part hereof. The Base Rent shall be due and payable
in equal monthly installments, without notice, demand, setoff or deduction, in
advance on the first day of each month during each Lease Year.
4.2 All sums payable by Tenant under this Lease shall be paid to
Landlord in legal tender of the United States by wire transfer (in accordance
with wire transfer instructions contained on SCHEDULE 4.2 attached hereto and
made a part hereof, as same may be amended from time-to-time in accordance with
the notice provisions of this Lease) or by check drawn on a U.S. bank (subject
to collection), at the address to which notices to Landlord are to be given or
to such other party or such other address as Landlord may designate in writing.
Landlord's acceptance of rent after it shall have become due and payable shall
not excuse a delay upon any subsequent occasion or constitute a waiver of any of
Landlord's rights. If Tenant elects to pay by wire transfer, Tenant shall bear
the full risk of receipt of hinds by 2:00 pm on the date due at Landlord's
depository bank. In the event that Landlord's lender imposes special collection
and bank account procedures on Landlord as a condition of Landlord's financing,
Tenant agrees to cooperate frilly with Landlord in assisting Landlord in
complying with such requirements and such modified terms shall be deemed to be
made a part hereof.
ARTICLE 5
OPERATING CHARGES AND
REAL ESTATE TAXES
5.1 (a) Tenant shall also pay as additional rent ("Additional Rent"):
(i) Tenant's Proportionate Share of the Operating Charges (as defined in Section
5.1(b)) incurred during each calendar year falling entirely or partly within the
Lease Term and (ii) Tenant's Proportionate Share of the amount of Real Estate
Taxes (as defined in Section 5.1(c)) incurred during each calendar year falling
entirely or partly within the Lease Term. Tenant's Proportionate Share has been
set forth on the Rider. In the event the number of square feet comprising the
Premises increases or decreases, respectively, pursuant to any provision of this
Lease or of the Rider, or in the event the number of square feet of rentable
area in the Building increases or decreases, Tenant's Proportionate Share shall
increase or decrease accordingly. Total Rentable Space for the Building may
change from time to time. Therefore, if and when same occurs, Tenant's
Proportionate Share will be appropriately adjusted and Landlord will provide
Tenant with a written statement describing the adjustment.
(b) Operating Charges shall mean all costs and expenses
incurred by the Landlord in the operation of the Building, including
without limitation, those items set forth on SCHEDULE 5.1(B) attached
hereto and made a part hereof.
(c) Real Estate Taxes shall mean (1) all real estate taxes,
vault and/or public. space rentals (including general and special
assessments, if any), which are imposed upon Landlord or assessed
against the Building and/or the land upon which the Building is located
(the "Land"), (2) any other present or future taxes or governmental
charges that are imposed upon Landlord or assessed against the Building
and/or the Land which are in the nature of or in substitution for real
estate taxes, including any tax levied on or measured by the rents
payable by tenants of the Building, and (3) expenses (including
reasonable attorneys', consultants' and appraisers' fees) incurred in
reviewing, protesting or seeking a reduction of Real Estate Taxes. Real
Estate Taxes will not include capital stock, succession, transfer,
franchise, gift, estate or inheritance taxes imposed on Landlord.
5.2 (a) Tenant shall make estimated monthly payments to Landlord on
account of the Operating Charges and Real Estate Taxes that are expected 10 be
incurred during each calendar year. From time to time, Landlord will submit a
statement to Tenant setting forth Landlord's reasonable estimate of such charges
and the amount of Tenant's Proportionate Share thereof Tenant shall pay to
Landlord on the first day of each month following receipt of such statement,
until Tenant's receipt of the succeeding annual statement, an amount equal to
one-twelfth (1/12) of such share (estimated on an annual basis).
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(b) Within one hundred twenty (120) days following the end of
each calendar year, Landlord shall submit a statement showing (1)
Tenant's Proportionate Share of the actual amount of Operating Charges
and Real Estate Taxes actually incurred during the preceding calendar
year, and (2) the aggregate amount of Tenant's estimated payments
during such year. If such statement indicates that the aggregate amount
of such estimated payments exceeds Tenant s actual liability, then
Tenant shall deduct the net overpayment from its next monthly
payment(s) of estimated Operating Charges and Real Estate Taxes. If
such statement indicates that Tenant's actual liability exceeds the
aggregate amount of such estimated payments, then Tenant shall pay the
amount of such excess within thirty (30) days of Tenant's receipt of
such notice of excess due. Such statement of Operating Charges and Real
Estate Taxes shall become binding and conclusive if not contested by
Tenant within sixty (60) days after it is rendered.
Notwithstanding anything to the contrary in the Lease, within sixty
(60) days of Tenant's receipt of Landlord's statement, in the event any dispute
arises between Landlord and Tenant as to Operating Charges and/or Real Estate
Taxes, Tenant shall have the right, upon reasonable notice, to inspect and
photocopy, if desired, Landlord's records concerning the Operating Charges
and/or Real Estate Taxes of :he Building. If, after such inspection, Tenant
continues to dispute Operating Charges and/or Real Estate Taxes, Tenant shall be
entitled, within such sixty (60) day period, to retain an independent accountant
or accountancy firm that has a specialty in auditing operating expenses to
conduct an audit. The results of any such audit shall be completed not later
than one hundred twenty days (120) days after Tenant's receipt of Landlord's
statement. If as to any specific issue it is determined that Tenant has been
overcharged, then Tenant shall receive a credit against the next month's
required payment of Operating Charges in the amount of such overcharge. If the
audit reveals that Tenant was undercharged, then, within thirty (30) days after
:he results of such audit are made available to Tenant, Tenant shall reimburse
Landlord for the amount of such undercharge. Tenant shall pay the cost of any
audits requested by Tenant, unless any audit reveals that Landlord's
determination of the Operating Charges and/or Real Estate Taxes was in error by
more than five percent (5%), in which case Landlord shall pay the cost of such
audit. Landlord shall be required to maintain records of the Operating Charges
and Real Estate Taxes for the three-year period following each Operating Charges
statement. To the extent either party owes any amount to the other, and such
obligation arises at the end of the Term, such amount shall be paid in its
entirety within thirty (30) days following the completion of the audit process.
(c) If the Lease Term commences or expires on a day other than
the first day or the last day of a calendar year, respectively, then
Tenant's liability for Tenant's Proportionate Share of Operating
Charges and Real Estate Taxes incurred during; such calendar year shall
be equitably apportioned on a pro-rata basis.
ARTICLE 6
USE OF PREMISES
6.1 (a) Tenant may use, occupy and operate the Premises in accordance
with the use clause set forth in the Rider. Tenant agrees at all times during
the Lease Term and any extensions thereof to comply with all applicable laws
affecting the use of the Premises.
(b) Tenant acknowledges and agrees that the precise location
of equipment and cable outside of the Premises and within horizontal
and vertical) shafts, risers and pathways within the Building, to the
Building or between and among floors, both at the commencement of
Tenant's occupancy and as same may be modified, expanded or adjusted
from time-to-time after initial occupancy, shall be in conformity with
plans and specification which have been approved in writing in advance
by the Landlord, in Landlord's sole discretion, and shall otherwise be
in accordance with Building Rules and Regulations attached as Exhibit
E. With respect to the location of equipment and cable within the
Premises, Landlord shall waive the right to review and approve such
initial placement and any relocation thereof, with such approval not to
be unreasonably withheld or delayed.
(c) Tenant shall not use the Premises for any unlawful purpose
or in any manner that will constitute waste, nuisance or unreasonable
annoyance to Landlord or any other tenant of the Building, or in any
manner that will increase the number of parking spaces required for the
Building at full occupancy or otherwise as required by law. Except as
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otherwise provided in this Lease, Tenant shall not generate, use,
store, or dispose of any materials posing a health or environmental
hazard in or about the Building, nor use or occupy be Premises in any
manner which may result in an increase in Landlord's insurance premium
payable in respect of the Building. Tenant shall comply with and
conform to all present and future laws, ordinances, regulations and
orders of all applicable governmental or quasi-governmental authorities
having jurisdiction over the Premises, including those concerning the
use, occupancy and condition of the Premises and all machinery,
equipment and furnishings therein. The party installing the initial
leasehold improvements described in Exhibit D hereto shall obtain the
initial certificate of occupancy for the Premises. Any amended or
substitute certificate of occupancy necessitated by Tenant's particular
use of the Premises or any Alterations made by Tenant in the Premises
shall be obtained by Tenant at Tenant's sole expense. (The foregoing
sentence shall not be construed as to constitute the consent of the
Landlord for any Alterations of the Premises.) Use of the Premises is
subject to all covenants, conditions and restrictions of record.
(d) Landlord agrees that Tenant may provide its
telecommunications services, with no service restrictions in the
Building for providing such services, through its fiber optic or other
telecommunications network to other tenants or occupants in the Complex
or Tenant's customers or vendors, provided that no other Building
services or services of other telecommunications providers will be
materially and adversely affected thereby. In the event that Landlord
shall provide a "meet point room" in the Building (which meet point
room, if provided, shall be in a location designated by Landlord),
Tenant, at its option, may interconnect with other tenants or occupants
of the Building or Tenant's customer or vendors though such a Building
meet point room. If Tenant elects to utilize such meet point room,
Tenant shall reimburse Landlord, within thirty (30) days of Landlord's
demand, for Tenant's proportionate share (based on Tenant's share of
the space available and utilized by Tenant for use in the meet point
room) of Landlord's reasonable actual out-of-pocket expenses for
developing, building, operating and maintaining the Building's meet
point room to the extent not theretofore recovered by Landlord.
Landlord shall have the right at any time to relocate such meet point
room at Landlord's expense, in which event Landlord shall reimburse
Tenant for Tenant's reasonable expenses incurred in connection with
relocating its equipment to the relocated meet point room. Prior to the
discontinuance of any existing meet point room in the Building in
connection with such a relocation, Landlord shall have constructed a
new meet point room and Tenant shall have had a reasonable opportunity
to interconnect therein with the other tenants or occupants of the
Building to which Tenant is providing its telecommunications services
and with other telecommunications carriers. In addition, Landlord may
at any time discontinue the use of any meet point room provided that,
prior to such discontinuance, Tenant shall have had reasonable notice
and opportunity to connect directly to other tenants of the Building to
which it is providing its telecommunications services and to other
telecommunications carriers, in which event Landlord shall reimburse
Tenant for Tenant's reasonable expenses incurred in connection with
such direct connections. Further, such "meet me" room shall have direct
access to the interconnect! fiber termination point within the Tenant's
Premises at the public or private peering point, and such connection
shall be at no charge to Landlord throughout the Term, including any
Renewal Term.
6.2 Tenant shall pay, within thirty (30) days of notice thereof, but in
any event before delinquency, any business, rent or other taxes or fees that are
now or hereafter levied, assessed or imposed upon Tenant's use or occupancy of
the Premises, the conduct of Tenant's business in the Premises or Tenant's
equipment, fixtures, furnishings, inventory or personal property. If any such
tax or fee is enacted or altered so that such tax or fee is levied against
Landlord or so that Landlord is responsible for collection or payment thereof,
then Tenant shall pay to Landlord as Additional Rent the amount of such tax or
fee within thirty (30) days of its having been assessed, but in no event in a
fashion as to constitute a delinquency in the payment of such taxes, fees or
assessments. Tenant shall also promptly pay any sales tax and/or other local tax
now or hereafter in existence that is imposed. Any sales tax on rent shall be
paid by Tenant to Landlord simultaneously with the monthly payment of Base Rent.
Any such tax obligation shall be deemed Additional Rent.
4
6.3 (a) Except as otherwise provided in this Lease, Tenant shall not
cause or permit any Hazardous Materials to be generated, used, released, stored
or disposed of in or about the Building. At the expiration or earlier
termination of this Lease, Tenant shall surrender the Premises to Landlord free
of Hazardous Materials and in compliance with all Environmental Laws. "Hazardous
Materials" means (a) asbestos and any asbestos containing material and any
substance that is then defined or listed in, or otherwise classified pursuant
to, any Environmental Law or any other applicable Law as a "hazardous
substance," "hazardous material," "hazardous waste," "infectious waste," "toxic
substance," "toxic pollutant" or any other formulation intended to define, list,
or classify substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, or
Toxicity Characteristic Leaching Procedure (TCLP) toxicity, (b) any petroleum
and drilling fluids, produced waters, and other wastes associated with the
exploration, development or production of crude oil, natural gas, or geothermal
resources, and (c) any petroleum product, polychlorinated biphenyls, urea
formaldehyde, radon gas, radioactive material (including any source, special
nuclear, or by-product material), medical waste, chlorofluorocarbon, lead or
lead-based product, and any other substance whose presence could be detrimental
to the Building or the Land or hazardous to health or the environment.
"Environmental Law" means any present and future Law and any amendments (whether
common law, statute, rule, order, regulation or otherwise), permits and other
requirements or guidelines of governmental authorities applicable to the
Building or the Land and relating to the environment and environmental
conditions or t0 any Hazardous Material (including, without limitation, CERCLA,
42 U.S.C.ss. 9601 ET SEQ., the Resource Conservation and Recovery Act of 1976,
42 U.S.C.ss. 6901 ET SEQ., the Hazardous Materials Transportation Act, 49
U.S.C.ss. 1801 ET SEQ., the Federal Water Pollution Control Act 33 U.S.C.ss.
1251 ET SEQ., the clean Air Act, 33 U.S.C.ss. 7401 ET SEQ., the Toxic Substances
Control Act, 15 U.S.C.ss. 2601 ET SEQ., the Safe Drinking Water Act, 42
U.S.C.ss. 300f ET SEQ., the Emergency Planning and Community Right-To-Know Act,
42 U.S.C.ss. 1101 ET SEQ., the Occupational Safety and Health Act, 29 U.S.C.ss.
651 ET SEQ., and any so-called "Super Fund" or "Super Lien" law, any Law
requiring the filing of reports and notices relating to hazardous substances,
environmental laws administered by the Environmental Protection Agency, and any
similar state and local Laws, all amendments thereto and all regulations,
orders, decisions, and decrees now or hereafter promulgated thereunder
concerning the environment, industrial hygiene or public health or safety).
(b) Notwithstanding any termination of this Lease, Tenant
shall indemnify and hold Landlord, its employees and agents, and, if
applicable, Landlord's prime landlord under any ground lease to which
Landlord is a party, and Landlord's lender(s), harmless from and
against any damage, injury, loss, liability, charge, demand or claim
based on or arising out of the presence or removal of or failure to
remove, Hazardous Materials generated, used, released, stored or
disposed of by Tenant or any Invitee in or about the Building, whether
before or after Lease Commencement Date. In addition, Tenant shall give
Landlord immediate verbal and follow-up written notice of any actual or
threatened Environmental Default, which Environmental Default Tenant
shall cure at the sole expense of the `tenant in accordance with all
Environmental Laws and to the satisfaction of Landlord and only after
Tenant has obtained Landlord's prior written consent. An "Environmental
Default" means any of the following by Tenant or any Invitee: a
violation of an Environmental Law; a release, spill or discharge of a
Hazardous Material on or from the Premises, the Land or the Building;
an environmental condition requiring responsive action; or an emergency
environmental condition. Upon any Environmental Default, in addition to
all other rights available to Landlord under this Lease, at law or in
equity, Landlord shall have the right, but not the obligation, to
immediately enter the Premises, to supervise and approve any actions
taken by Tenant to address the Environmental Default, and, if Tenant
fails to immediately address same to Landlord's satisfaction, to
perform, at Tenant's sole cost and expense, any lawful action necessary
to address same. This provision will survive the termination or
expiration of this Lease, and any renewals, extensions or expansions
thereof
(c) Landlord represents and warrants that the Building is
being constructed so as to be free of Hazardous Materials, except for
those Hazardous Materials to be used in the operation of, or to be
stored in, the Building in connection with the lawful occupancy and use
of the Building for the purposes for which it is intended, with
Landlord having obtained the necessary governmental approvals for the
Hazardous Materials for which Landlord may be responsible.
5
ARTICLE 7
ASSIGNMENT AND SUBLETTING
7.1 Except as provided below, Tenant will not sell, assign, transfer,
mortgage or otherwise encumber this Lease or sublet, rent or permit occupancy or
use of the Premises or any part thereof by others, without obtaining the prior
written consent of Landlord, nor shall any assignment or transfer of this Lease
or the right of occupancy hereunder be effectuated by operation of law or
otherwise without the prior written consent of Landlord, which consent may be
granted, withheld or conditioned in the sole and absolute discretion of the
Landlord. Any such assignment, subletting or occupancy without the prior written
consent of Landlord shall constitute an Event of Default, or, at the election of
the Landlord, shall be void. Tenant shall pay all reasonable expenses (including
attorney's fees) incurred by Landlord in connection with Tenant's request for
Landlord to give its consent to any assignment, subletting or occupancy.
7.2 Provided, that Tenant shall not be in default of this Lease, and
that Tenant shall not have engaged in acts or omissions which with the lapse of
time would constitute a default of this Lease, any transfer, by operation of law
or otherwise, of Tenant's interest in this Lease (in whole or in pad), or of a
fifty percent (50%) or greater interest in Tenant (whether stock, partnership
interest or otherwise), or any mortgaging or encumbering of any interest in
Tenant, shall be deemed an assignment of this Lease within the meaning of this
Article 7. The issuance of shares of stock to other than the existing
shareholders is deemed to be a transfer of that stock for the purposes of this
Article 7. If there has been a previous transfer of less than a fifty percent
(50%) interest in Tenant, then any other transfer of an interest in Tenant
which, when added to the total percentage interest previously transferred,
totals a transfer of greater than a fifty percent (50%) interest in Tenant shall
be deemed an assignment of Tenant's interest in this Lease within the meaning of
this Article 7. Tenant shall be obligated to notify Landlord when a transfer of
fifty percent (50%) or greater interest in Tenant is proposed. The provisions of
this Section 7.2 shall not apply to the sale of shares by persons other than
those deemed "insiders" within the meaning of the Securities Exchange Act of
1934, as amended, where such sale is effected through any recognized exchange or
through the "over-the-counter market."
7.3 If Landlord shall validly decline to give its consent to any
proposed assignment or sublease, or if Landlord shall exercise any of its rights
under this Article 7, Tenant shall indemnify, defend and hold harmless Landlord
against and from any and all loss, liability, damages, costs and expenses
(including reasonable attorneys' fees) resulting in connection with any claim
relating to the proposed assignment or sublease that may I e made against
Landlord by the proposed assignee or sublessee or by any brokers or other
persons, including, without limitation, claims for a commission or similar
compensation in connection with the proposed assignment or sublease.
7.4 In the event that (i) Landlord fails to exercise any of its options
under this Article 7 and (ii) Tenant fails to execute and deliver the assignment
or sublease to which Landlord consented within forty-five (45) days after the
giving of such consent then, Tenant shall again comply with all of the
provisions and conditions of this Article 7 before assigning its interest in
this Lease or subletting any portion of the Premises.
7.5 The consent by Landlord to an assignment or to a subletting shall
not relieve Tenant from obtaining the express consent in writing of Landlord b
any further assignment or subletting. If Tenant's interest in this Lease is
assigned, or if the Premises or any pad thereof is sublet or occupied by anyone
other than Tenant, Landlord may collect rent from the assignee, subtenant or
occupant and apply the net amount collected to the Rent payable hereunder, but
no such assignment, subletting, occupancy or collection shall be deemed a waiver
of the provisions of this Article 7 or of any default hereunder or the
acceptance of the assignee, subtenant or occupant as Tenant, or a release of
Tenant from the further observance or performance by Tenant of all covenants,
conditions, terms and provisions on the part of Tenant to be performed or
observed.
7.6 Notwithstanding anything to the contrary in this section, Tenant,
without Landlord's consent may, (a) assign this Lease to any party into which
Tenant is merged, consolidated or reorganized, or to which all or substantially
all of Tenant's assets are transferred or sold, provided: (x) Landlord shall
receive a copy of the executed transfer document promptly after execution, (y)
Tenant or its successors by merger shall remain liable under this Lease, and (z)
the transferee shall expressly assume Tenant's obligations under this Lease; and
(b) upon prior written notice to Landlord, sublease the Premises to Tenant's
affiliates. For purposes of this Lease, an affiliate of Tenant is a corporation,
6
partnership, limited liability company, or other entity that, directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, the Tenant. The term "control" (including the
terms "controlled by" and "under common control with") means the possession,
direct or indirect, of the power to direct, or cause the direction of, the
management and policies of Tenant, whether through the ownership of voting
securities, by contract, or otherwise. Tenant shall give Landlord written notice
(containing the information described above) of and such sublease to Tenant's
affiliates.
7.7 In the event of an attempted subletting or assignment 10 an
unaffiliated third party, Tenant shall submit a request for consent thereto to
Landlord. If Landlord, in its reasonable discretion elects to deny the request
for consent to assignment, Landlord shall have the right to recapture the
Premises, or that portion of the Premises sought to be subleased, by providing
Tenant written notice of intent to recapture, within thirty (30) days of
Landlord's receipt of a request by Tenant for consent to assignment to an
unaffiliated third party of this permitted assignment If Landlord consents to
such an assignment or sublease, Tenant agrees that Landlord and Tenant shall
equally share in any amount of rent received in excess of the then-effective
Base Rent, after deduction of Landlord's expenses in connection with the
assignment or sublease.
7.8 A permitted co-location under this Lease shall not constitute an
assignment or sublease within the meaning of this paragraph. Among other things
otherwise described in this Lease, for there to be a permitted co-location, at
all times during the Term, Tenant shall provide Landlord with its then-currently
effective Co-location License Agreement for its Customers for Landlord's review
and approval, which shall not be unreasonably withheld or delayed. Said license
will not afford licensee any interest in the tenancy granted hereby and will
preclude occupancy beyond the Term hereof the mere denomination of a license as
a "sublease" shall not defeat the terms hereof; provided, that the substance of
the relationship established thereby is that of a licensee and not a subtenant.
ARTICLE 8
MAINTENANCE AND REPAIRS
8.1 Tenant shall keep and maintain the Premises and Tenant's Equipment
Area, and all fixtures and equipment located therein, in clean, safe and
sanitary condition, shall take good care thereof and make all repairs thereto,
and shall suffer no waste or injury thereto. At the expiration or earlier
termination of the Lease Term, Tenant shall surrender the Premises, and Tenant's
Equipment Area, in the same order and condition in which they were on the Lease
Commencement Date, ordinary wear and tear and unavoidable damage by the elements
excepted. Except as otherwise provided in Article 18, all injury, breakage and
damage to the Premises and to any other part of the Building or the Land caused
by any act or omission of Tenant or of any invitee, agent, employee, subtenant,
assignee, contractor, client, family member, licensee, customer or guest of
Tenant (collectively, "Invitees"), including any act or omission in connection
with the installation and/or removal of any of Tenant's furniture, fixtures and
equipment, shall be repaired by and at Tenant's expense, except that Landlord
shall have the right at Landlord's option to make any such repair and to charge
Tenant for all costs and expenses incurred in connection therewith.
8.2 Landlord shall keep and maintain in good order and repair the
base-building structure and systems, including the root exterior walls,
elevators, electrical, plumbing and common area HVAC systems (which excludes
such elevator, electrical, plumbing and HVAC systems to the extent same are
located within or exclusively service the Tenant's Premises or the premises of
other tenants only, in which event same shall be governed by Section 8.1 above),
and the ground floor lobby and other common areas and facilities of the
Building.
ARTICLE 9
INITIAL TENANT IMPROVEMENTS AND ALTERATIONS
9.1 The original improvement of the Premises, and Tenant's Equipment
Area by Tenant shall be accomplished in accordance with EXHIBIT D. Landlord is
under no obligation to make, or to permit Tenant or Tenant's contractors to
make, any structural or other alterations, decorations, additions, improvements
7
or other changes (collectively "Alterations") in or to the Premises and Tenant's
Equipment Area except as set forth in Exhibit D or otherwise expressly provided
in this Lease. Prior to the commencement by Tenant of the construction of any
original improvements, Tenant shall obtain and deliver to Landlord written,
unconditional waivers of mechanics' and materialmen's liens against the Complex
from all proposed contractors, subcontractors, laborers and suppliers in
connection with such original improvements, in form and content reasonably
satisfactory to Landlord.
9.2 Tenant shall not make or permit anyone for whom Tenant is
responsible to make any Alterations in or to the Premises, Tenant's Equipment
Area or the Building, without Landlord's prior written consent. The criteria for
such consent shall be determined by the nature of the Alteration and whether
same shall have an impact upon the structural integrity of the Building or a
Building system of general use, or shall have an impact on a tenant other than
the Tenant, in which event, the consent or approval of the Landlord may be
granted, conditioned or withheld in the sole and absolute discretion of the
Landlord. If the two impacts described in the preceding sentence are NOT
factors, in the reasonable judgment of Landlord, then the consent or approval of
the Landlord to an Alteration shall not be unreasonably withheld, conditioned or
delayed. My authorized and approved Alteration made by Tenant shall be made: (a)
in a good, workmanlike, first-class and prompt manner; (b) using new materials
only; (c) by an experienced, reputable contractor, approved in advance by the
Landlord in its reasonable discretion or expressly identified on the Rider, and
constructed in accordance with plans and specifications approved in writing by
Landlord; (d) in accordance with all applicable legal requirements and
requirements of any insurance company insuring the Building or portion thereof,
(e) after having obtained any required consent of the holder of any Mortgage (as
defined in Section 22.1); (f) after Tenant has obtained public liability and
worker's compensation insurance policies approved in writing by Landlord; and
(g) after Tenant has obtained and delivered to Landlord written, unconditional
waivers of mechanics' and materialmen's liens against the Premises and the
Building from all proposed contractors, subcontractors, laborers and material
suppliers for all work and materials in connection with such Alteration. Any
such Alteration shall be performed in a manner consistent with the Building
Rules and Regulations as same may be promulgated from time-to-time by the
Landlord.
9.3 In the event of an approved Alteration after the initial build-out
of Tenant's Premises, Tenant agrees that Tenant shall reimburse Landlord for its
actual costs of plan review, construction monitoring and oversight by Landlord.
Said reimbursement shall be due within thirty (30) days of Tenant's receipt of
Landlord's statement therefore, and shall be considered Additional Rent.
9.4 If, notwithstanding the foregoing, any mechanic's or materialman's
lien (or a petition to establish such lien) is filed in connection with any
Alteration, then such lien (or petition) shall be discharged by Tenant at
Tenant's expense within twenty (20) days thereafter by the payment thereof or
the filing of a bond in a form acceptable to Landlord. If Tenant shall fail to
discharge any such mechanic's or materialman's lien, Landlord may, at its
option, discharge such lien and treat the cost thereof (including attorneys'
fees incurred in connection therewith) as additional rent payable with the next
monthly installment of Base Rent falling due; it being expressly agreed that
such discharge by Landlord shall not be deemed to waive or release the default
of Tenant in not discharging such lien. If Landlord gives its consent to the
making of any Alteration, then such consent shall not be deemed to constitute
Landlord's consent to subject its interest in the Premises, the Building or the
Land to any mechanic's or materialman's lien which may be filed in connection
therewith.
9.5 Consent to an Alteration shall not constitute consent or
authorization by the Landlord to the placement of financing by the Tenant
relating to the Alterations that purports to create any security interest in the
Building or that purports to subordinate this Lease to any such financing, and
any such effort or agreement by Tenant shall constitute an Event of Default.
9.6 Tenant acknowledges and agrees that, during the construction of
initial improvements, any subsequent Alterations and thereafter dining the
operation of the Building, Landlord has authority to coordinate access to
loading areas, freight elevators, the roof, shafts, space and other areas of the
Building, and that Landlord has authority to adopt reasonable rules and
regulations pertaining to same, and to approve such Tenant access. Tenant will
also cause its Contractor(s) to coordinate their use of and access to the
foregoing with Landlord's Base Building Contractor, which will have authority to
approve such access; during construction.
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ARTICLE 10
SIGNS
10.1 Landlord will list Tenant's name in the common area Building
directory, if any, and provide Building standard signage on one suite entry door
at Tenant's expense. No other sign, advertisement or notice referring to Tenant
shall be painted, affixed or otherwise displayed on any part of the exterior or
interior of the Building; provided, however, that Tenant may install signs in
the interior of the Premises that are not visible from the exterior of the
Premises. Tenant shall not display any decoration, fitting or other item visible
from tie exterior of the Premises without Landlord's prior approval. If any sign
or item visible from the exterior of the Premises is displayed without
Landlord's approval, then Landlord shall have the tight to remove such item at
Tenant's expense or to require Tenant to do the same.
10.2 To the extent that Tenant wishes to erect an exterior sign, it may
do so only with the prior written consent of the Landlord, which consent may be
granted, conditioned or withheld in the sole and absolute discretion of
Landlord. If approved, Landlord will establish an annual fee for the value of
such signage rights and Tenant shall also pay the cost of erection of such
signage and such erection shall be treated as an Alteration. Tenant must submit
plans of such signage for review of size, location, color, lighting, weight,
method of attachment and other relevant structural and aesthetic considerations.
Any such approved sign shall be further subject to the relevant requirements of
the City and County for zoning and other legal compliance. This signage right is
non-exclusive, although Tenant shall be entitled to use up to twenty percent
(20%) of the amount of building signage permitted by Landlord and allowed by
applicable building and zoning codes, rules and regulations.
ARTICLE 11
TENANT'S EQUIPMENT
11.1 Tenant may, from time to time during the Term or any extension
hereof, install, maintain, replace, repair, expand, construct and operate in or
upon the Premises and Tenant's Equipment Area and remove therefrom such trade
fixtures and equipment as it may deem necessary or appropriate to its business
operations; provided, any &mage which may be caused to the Premises by the
installation or removal of any of Tenant's trade fixtures or equipment shall be
repaired by Tenant at its expense forthwith. Landlord may impose reasonable
rules and regulations concerning the location, weight and timing and method of
installation of trade fixtures or equipment, whether installed in the Premises
or in Tenant' s Equipment Area.
11.2 Tenant covenants and agrees that, if directed by the Landlord at
its sole discretion, Tenant shall remove, at Tenant's sole risk and expense, all
fixtures and improvements to the Premises and to the Tenant's Equipment Area
upon the expiration of the Lease Term. If so requested by the Landlord, Tenant
shall restore the Premises and Tenant's Equipment Area to their original
condition, normal wear and tear, and approved structural changes excepted.
Tenant shall also exercise extraordinary care in removing such fixtures and
improvements so as to eliminate damage to the Building, the premises and
property of other tenants and the inconvenience to the operation of the Building
and its tenants.
ARTICLE 12
SECURITY DEPOSIT
[Intentionally Deleted]
ARTICLE 13
ACCESS AND INSPECTION
13.1 Tenant shall permit Landlord and its designees to enter the
Premises, without charge therefore and without diminution of the rent payable by
Tenant, to inspect the Premises, to make such alterations and repairs as
Landlord may deem necessary, or to exhibit the Premises to prospective tenants
during the last two hundred seventy (270) days of the Lease Term. Tenant shall
at all times during its occupancy of the Premises provide Landlord duplicates of
the keys to the doors and other points of entry to the Premises. In connection
with any such entry, Landlord shall make reasonable efforts to minimize the
disruption to Tenant's use of the Premises and shall conform to Tenant's
9
reasonable security requirements. Except in an emergency, Landlord shall give
Tenant reasonable prior notice (which shall be in writing, except in an
emergency) of any entry into the Premises pursuant to this Section.
ARTICLE 14
INSURANCE
14.1 Tenant will not conduct or permit to be conducted any activity, or
place any equipment in or about the Premises or the Building, which will, in any
way, invalidate the insurance coverage in effect or increase the cost of
insurance on or for the Building; and if any invalidation of coverage or
increase in the cost of insurance is stated by any insurance company or by the
applicable Insurance Rating Bureau to be due to any activity or equipment of
Tenant in or about the Premises or the Building, such statement shall be
conclusive evidence that same is due to such activity or equipment and, as a
result thereof, Tenant shall be liable for same and shall reimburse Landlord
therefore upon demand and any such sum shall be considered Additional Rent
payable with the monthly installment of Rent next becoming due.
14.2 Tenant, at Tenant's expense, shall carry and keep in full force
and effect at all times during the Lease Term for the protection of Tenant,
Landlord and any other persons designated by Landlord pursuant to Section 14.4
hereof commercial general liability insurance including contractual liability
coverage with a combined single limit of at least Three Million Dollars
($3,000,000.00) for each occurrence of bodily or personal injury, death or
property damage and Tenant shall deliver to Landlord a copy of said policy or,
at Landlord's option, a binder or certificate showing the same to be in full
force and effect. It is understood and agreed that liability coverage provided
for hereunder shall extend beyond the Premises to portions of the common area of
the Building used from time to time by Tenant, its agents, employees,
contractors, invitees, licensees, customers, clients, family members and guests,
and, further, shall include contractual liability coverage insuring the
INDEMNITY provisions of this Lease. Notwithstanding the foregoing, during the
construction of the initial improvements, Tenant shall carry such policy with
coverage limitations of at least Five Million Dollars ($5,000,000.00).
14.3 Tenant, at Tenant's expense, shall further carry a policy of "all
risk" insurance covering all of Tenant's personal property and improvements in
the Premises for not less than the full insurable cost and replacement cost of
such personal property and improvements without reduction for depreciation. All
proceeds of such insurance shall be used solely to restore, repair or replace
the Tenant's personal property and improvements.
14.4 Said commercial general liability and "all risk" insurance
policies and any other insurance policies carried by Tenant with respect to the
Premises and/or any common areas accessible to Tenant shall (i) be issued in
form acceptable to Landlord by good and solvent insurance companies qualified to
do business in the jurisdiction in which the Building is located and otherwise
reasonably satisfactory to Landlord, (ii) designate as additional named
insureds, besides Tenant as named insured, Landlord, Landlord's managing agent,
Landlord's lender(s) as may exist from time to time, and any other person from
time to tine designated in writing by notice from Landlord to Tenant, (iii) be
written as primary policy coverage and not contributing with or in excess of any
coverage which Landlord may carry, (iv) provide for thirty (30) days prior
written notice to Landlord of any cancellation or other expiration or material
modification of such policy or any defaults thereunder, and (v) contain an
express waiver of any right of subrogation by the insurance company against
Landlord. Neither the issuance of any insurance policy required hereunder nor
the minimum limits specified herein with respect to Tenant's insurance coverage
shall be deemed to limit or restrict in any way Tenant's liability arising under
or out of this Lease.
14.5 Tenant shall obtain such additional amounts of insurance and
additional types of coverage as Landlord may reasonably request from time to
time. If Tenant fails to comply with any of the insurance requirements of this
Lease, Landlord may obtain such insurance and keep the same in effect, and
Tenant shall pay Landlord as Additional Rent THE premium cost thereof with the
next installment of Rent otherwise due.
14.6 Notwithstanding anything to the contrary contained hi this Lease,
Landlord and Tenant and all parties claiming under them, to the extent covered
by insurance (or to the extent such party would have been covered by insurance
had such party maintained the insurance required by the terms hereof to be
maintained by such party), each hereby waives any and all rights of recovery,
claim, action and liability against the other, its agents, officers or employees
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for any loss or damage that may occur to the Building and Premises, or any
improvements thereto, and any personal property owned by them therein, by reason
of fire, the elements or any other cause(s) which could be covered by "all risk"
property insurance, regardless of cause or origin, including negligence of the
other party hereto.
ARTICLE 15
SERVICES AND UTILITIES
15.1 Landlord shall provide the following services and utilities in a
manner consistent with the standards for quality followed in comparable
facilities in the jurisdiction in which the Building is located:
(i) Electrical service to operate the common areas of
the Building, and electrical capacity to a point of connection at the
Building in accordance with the provisions of Exhibit C.
(ii) HVAC for the common areas of the Building during
normal hours of operation of the Building as set forth in Section 15.3
below.
(iii) Hot and cold water for drinking, lavatory and
toilet purposes at those points of supply provided for nonexclusive
general use of other tenants at the Building, and supplies for such
lavatory and toilet purposes.
(iv) Operatorless passenger elevator service 24 hours
per days, 365 days per year, and freight elevator service (subject to
scheduling by Landlord) in common with Landlord and other tenants and
their contractors, agents and visitors; provided, however, that
Landlord shall have the right to remove elevators from service as they
are required for moving freight or for servicing and/or maintaining
the elevators and/or the Building.
(v) Access to the Premises and the Building 24 hours
per day, 365 days a year, subject to reasonable security regulations
(such as providing identification to Building security personnel)
imposed by Landlord.
(vi) Replacement of all Building standard lighting
tubes and bulbs, if any, located in common areas.
15.2 Landlord agrees to operate and maintain the Building in accordance
with the standards for quality followed by other comparable facilities in the
jurisdiction in which the Building is located and to provide building security
personnel, equipment, procedures and systems in the Building similar to other
such comparable facilities. Landlord reserves the fight to interrupt, curtail or
suspend the services required to be furnished by Landlord under this Article 15
when the necessity therefore arises by reason of accident, emergency, mechanical
breakdown, or when required by any Law, or for any other cause beyond the
reasonable control of Landlord. Landlord shall use reasonable efforts to
complete all repairs or other work so that Tenant's inconvenience resulting
therefrom may be for as short a period of time as circumstances will permit.
15.3 Landlord will furnish all services and utilities required by this
Lease only during the normal hours of operation of the Building, unless
otherwise specified herein, in a manner consistent with industry standards for
comparable buildings in the jurisdiction in which the Building is located. The
normal hours of operation of the Building are twenty four (24) hours a day,
seven days a week. It is understood and agreed that Landlord shall not be liable
for failure to furnish, or for delay, suspension or reduction in furnishing, any
of the utilities, services or other manner of thing required to be furnished by
Landlord hereunder, if such failure to furnish or delay, suspension or reduction
in furnishing same is caused by breakdown, maintenance, repairs, strikes,
scarcity of labor or materials, acts of God, Landlord's compliance with
governmental regulation or legislation or judicial or administrative orders or
from any other cause whatsoever; provided, however, that Landlord shall, in the
event of a breakdown, use reasonable diligence to repair all equipment owned by
Landlord and all building standard equipment furnished by Landlord which is
required to provide such utilities and services.
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15.4 Landlord agrees to provide and maintain an electronically
controlled access system for the common areas of the Building during the Lease
Term ("Electronic Access System"); shall have a manned entrance to the Building,
operated twenty four (24) hours a day, three hundred sixty five (365) days a
year ("Manned Entrance"); provided, however, that no representation or warranty
with respect to the adequacy, completeness or integrity of the Electronic Access
System or the Manned Entrance is made by Landlord, and except for losses
attributable to Landlord's gross negligence the risk that any such system or
entrance may not be effective, or may malfunction, or be circumvented by a
criminal, La assumed by Tenant with respect to Tenant's property and interest,
and Tenant shall obtain insurance coverage to the extent Tenant desires
protection against such criminal acts and other losses. The Electronic Access
System shall provide access control at all entrances to the building. Landlord
reserves the right to modify, supplement or revise the access system at any time
in its sole judgment. Said access system is not intended to serve as security
for the Premises or otherwise for individual tenant-occupied spaces or suites.
15.5 Tenant shall have the right to provide and maintain a security
system within the Premises in accordance with plans and specifications approved
by the Landlord in accordance with the Tenant Work approval process or, in the
event that such system is installed after completion of the Tenant Work, in
accordance with the approval of Alterations under Article 9 above.
ARTICLE 16
LIABILITY OF LANDLORD
16.1 Landlord, its employees and agents shall not be liable to Tenant,
any Invitee or any other person or entity for any damage (including indirect and
consequential damage), injury, loss or claim (including claims for the
interruption of or loss to business) based on or arising out of any cause
whatsoever (except as otherwise provided in this Section), including without
limitation the following: repair to any portion of the Premises or the Building;
interruption in the use of the Premises or any equipment therein; any accident
or damage resulting from any use or operation (by Landlord, Tenant or any other
person or entity) of elevators or heating, cooling, electrical, sewerage or
plumbing equipment or apparatus; termination of this Lease by reason of. damage
to the Premises or the Building; fire, robbery, theft, vandalism, mysterious
disappearance or any other casualty; actions of any other tenant of the Building
or of any other person or entity; failure or inability of Landlord to furnish
any utility or service specified in this Lease; and leakage in any part of the
Premises or the Building, or from water, rain, ice or snow that may leak into,
or flow from, any part of the Premises or the Building, or from drains, pipes or
plumbing fixtures in the Premises or the Building. Any property stored or placed
by Tenant or Invitees in or about the Premises or the Building shall be at the
sole risk of Tenant, and Landlord shall not in any manner be held responsible
therefore. If any employee of Landlord receives any package or article delivered
for Tenant, then such employee shall be acting as Tenant's agent for such
purpose and not as Landlord's agent. For purposes of this Article, the term
"Building" shall be deemed to include the Land. Notwithstanding the foregoing
provisions of this Section, Landlord shall not be released from liability, if
any, to Tenant for any damage caused by Landlord's willful misconduct or gross
negligence, to the extent such damage is not covered by insurance carried by
Tenant or required to be carried by Tenant.
16.2 Tenant shall indemnify and hold Landlord, its employees and agents
harmless from and against all costs, damages, claims, liabilities and expenses
(including attorneys' fees) suffered by or claimed against Landlord, directly or
indirectly, based on or arising out of (a) Tenant's use and occupancy of the
Premises or the business conducted by Tenant therein, (b) any act or omission of
Tenant or any Invitee, (c) any breach of Tenant's obligations under this Lease,
including failure to surrender the Premises upon the expiration or earlier
termination of the Term, or (d) any entry by Tenant or any invitee upon the Land
prior to the Lease Commencement Date.
16.3 If any landlord hereunder transfers the Building or such
landlord's interest therein, then such landlord shall not be liable for any
obligation or liability based on or arising out of any event or condition
occurring on or after the date of such transfer. Within fifteen (15) days after
any such transferee's request, Tenant shall attorn to such transferee and
execute, acknowledge and deliver any requisite or appropriate document submitted
to Tenant confirming such attornment.
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16.4 Tenant shall not have the right to offset or deduct the amount
allegedly owed to Tenant pursuant to any claim against Landlord from any rent or
other sum payable to Landlord. Tenants sole remedy for recovering upon such
claim shall be to institute an independent action against Landlord.
16.5 Notwithstanding anything to the contrary contained herein, if
Tenant or any Invitee is awarded a money judgment against Landlord, then
recourse for satisfaction of such judgment shall be limited to execution against
Landlord's estate and interest in the Building. No other asset of Landlord, any
member or partner of Landlord or any other person or entity shall be available
to satisfy, or be subject to, such judgment, nor shall any such member, partner,
person or entity be held to have personal liability for satisfaction of any
claim or judgment against Landlord or any member or partner of Landlord.
16.6 Notwithstanding anything to the contrary contained in this Lease,
if any provision of this Lease expressly or impliedly obligates Landlord not to
unreasonably withhold its consent or approval, an action for declaratory
judgment or specific performance will be Tenant's sole right and remedy in any
dispute as to whether Landlord has breached such obligation.
16.7 Landlord shall not be liable in any manner to Tenant, its agents,
employees, invitees or visitors for any injury or damage to Tenant, Tenants
agents, employees, invitees or visitors, or their property, caused by the
criminal or intentional misconduct of third parties or of Tenant, Tenant's
employees, agents, invitees or visitors. All claims against Landlord for any
such damage or injury are hereby expressly waived by Tenant, and Tenant hereby
agrees to hold harmless and indemnify Landlord from all such damages and the
expense of defending all claims made by Tenant's employees, agents, invitees, or
visitors arising out of such acts.
ARTICLE 17
RULES
17.1 Tenant and its Invitees shall at all times abide by and observe
the rules set forth in EXHIBIT E. Tenant and its Invitees shall also abide by
and observe any other rule that Landlord may reasonably promulgate from
time-to-time for the operation and maintenance of the Building, provided that
notice thereof is given and such rule is not inconsistent with the provisions of
this Lease. Except for Landlord's obligation to enforce the rules in a
non-discriminatory manner, nothing contained in this Lease shall be construed as
imposing upon Landlord any duty to enforce such rules or any condition or
covenant contained in any other lease against any other tenant, and Landlord
shall not be liable to Tenant for the violation of such rules or regulations by
any other tenant or its invitees.
ARTICLE 18
DAMAGE OR DESTRUCTION
18.1 If the Premises or the Building are totally or partially damaged
or destroyed, thereby rendering the Premises totally or partially inaccessible
or unusable, then Landlord shall diligently repair and restore the Premises and
the Building to substantially the same condition they were in prior to such
damage or destruction; provided, however, that if in Landlord's reasonable
judgment such repair and restoration cannot be completed within one hundred
eighty (180) days after the adjustment of the loss in connection with such
damage or destruction, then Landlord shall have the right, at its sole option,
to terminate this Lease by giving written notice of termination within
forty-five (45) days after the occurrence of such. damage or destruction.
18.2 If Landlord determines, in its reasonable judgment, that the
repairs and restoration cannot be substantially completed within one hundred
eighty (130) days after the date of adjustment of the loss in connection with
such damage or destruction, Landlord shall promptly notify Tenant of such
determination. For a period of thirty (30) days after receipt of such
determination, Tenant shall have the right to terminate this Lease by providing
written notice to Landlord. If Tenant does not elect to terminate this Lease
within such thirty (30) day period, and provided that Landlord has not elected
to terminate this Lease, Landlord shall proceed to repair and restore the
Premises and the Building. Notwithstanding the foregoing, Tenant shall not have
the right to terminate this Lease if the act or omission of Tenant or any of its
invitees shall have caused the damage or destruction.
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18.3 If this Lease is terminated pursuant to Section 18.1 or 18.2
above, then all rent shall be apportioned (based on the portion of the Premises
which is usable after such damage or destruction) and paid to the date of
termination. If this Lease is not terminated as a result of such damage or
destruction, then until such repair and restoration of the Premises are
substantially complete, Tenant shall be required to pay the Base Rent and
additional rent only for the portion of the Premises that is usable while such
repair and restoration are being made. Landlord shall bear the expenses of
repairing and restoring the Premises and the Building; provided, however, that
Landlord shall not be required to repair or restore any Alteration previously
made by Tenant or any of Tenant's trade fixtures, furnishings, equipment or
personal property; and provided further that if such damage or destruction was
caused by the act or omission of Tenant or any Invitee, then Tenant shall pay
the amount by which such expenses exceed the insurance proceeds, if any,
actually received by Landlord on account of such damage or destruction.
18.4 Notwithstanding anything herein to the contrary, Landlord shall
not be obligated to restore the Premises or the Building and shall have the
right to terminate this Lease if (a) the holder of any Mortgage fails or refuses
to make insurance proceeds available for such repair and restoration, (ii)
zoning or other applicable laws or regulations do not permit such repair and.
restoration, or (c) the cost of repairing and restoring the Building would
exceed fifty percent (50%) of the replacement value of the Building, whether or
not the Premises are damaged or destroyed, provided the leases of all other
tenants in the Building are similarly terminated.
18.5 Notwithstanding the foregoing Sections of this Article 18,
Landlord shall not be obligated to restore the Tenant Work which was a part of
the work required to be performed under EXHIBIT D attached hereto. Rather, the
restoration of such Tenant Work shall be the sole expense and responsibility of
Tenant.
ARTICLE 19
CONDEMNATION
19.1 If one-third or more of the Premises or occupancy thereof shall be
permanently taken or condemned by any governmental or quasi-governmental
authority for any public or quasi-public use or purpose or sold under threat of
such a taking or condemnation (collectively, "condemned'), then this Lease shall
terminate on the date title thereto vests in such authority and rent shall be
apportioned as of such date. If less than one-third of the Premises or occupancy
thereof is condemned, then this Lease shall continue in force and effect as to
the part of the Premises not condemned, except that as of the date title vests
in such authority Tenant shall not be required to pay the Base Rent and
additional rent with respect to the part of the Premises condemned.
19.2 All awards, damages and other compensation paid by such authority
on account of such condemnation shall belong to Landlord, and Tenant assigns to
Landlord all rights to such awards, damages and compensation. Tenant shall not
make any claim against Landlord or the authority for any portion of such award,
damages or compensation attributable to damage to the Premises, value of the
unexpired portion of the Lease Term, loss of profits or goodwill, leasehold
improvements or severance damages. Nothing contained herein, however, shall
prevent Tenant from pursuing a separate claim against the authority for the
value of furnishings and trade fixtures installed in the Premises at Tenant's
expense and for relocation expenses, provided that such claim shall in no way
diminish the award, damages or compensation payable to or recoverable by
Landlord in connection with such condemnation.
ARTICLE 20
DEFAULT
20.1 Each of the following shall constitute an Event of Default: (a)
Tenant's failure to make any payment of the Base Rent, Additional Rent or other
sum on or before such payments due date, provided that, on up to two (2)
occasions in any twelve (12) month period, there shall exist no Event of Default
unless Tenant shall have been given written notice of such failure and shall not
have made the payment within five (5) days following the giving of such notice;
(b) Tenant's violation or failure to perform or observe any other covenant or
condition within twenty (20) days after notice thereof from Landlord; (c)
Tenant's vacation or abandonment of the Premises; (d) an Event of Bankruptcy as
specified in Article 21 with respect to Tenant, any general partner or member or
managing member of Tenant (a "General Partner") or any Guarantor; or (e)
Tenant's dissolution or liquidation. 11 prior to the commencement of the Lease
Term, Tenant notifies Landlord of or otherwise unequivocally demonstrates an
intention to repudiate this Lease, Landlord may, at its option, consider such
14
anticipatory repudiation an Event of Default. In addition to any other remedies
available to it hereunder or at law or in equity, Landlord may retain all rent
paid upon execution of the Lease and the security deposit, if any, to be applied
to damages of Landlord incurred as a result of such repudiation, including
without limitation attorneys' fees, brokerage fees, costs of reletting, and loss
of rent. Tenant shall pay in full for all tenant improvements constructed or
installed within the demised premises to the date of the breach, and for
materials ordered at its request for the Premises.
20.2 If there shall be an Event of Default, including an Event of
Default prior to the Rent Commencement Date, then Landlord shall have the right,
at its stole option, to terminate this Lease. In addition, with or without
terminating this Lease, Landlord may re-enter, terminate Tenant's right of
possession and take possession of the Premises. The provisions of this Article
shall operate as a notice to quit, any other notice to quit or of Landlord's
intention to re-enter the Premises being hereby expressly waived. If necessary,
Landlord may proceed to recover possession of the Premises under and by virtue
of the laws of the jurisdiction in which the Building is located, or by such
other proceedings, including re-entry and possession, as may be applicable. If
Landlord elects to terminate this Lease and/or elects to terminate Tenant's
right of possession, then everything contained in this Lease to be done and
performed by Landlord shall cease, without prejudice, however, to Landlord's
right to recover from Tenant all rent and other sums accrued through the later
of termination or Landlord's recovery of possession. Whether or not this Lease
and/or Tenant's right of possession is terminated, Landlord may, but shall not
be obligated to, relet the Premises or any part thereof alone or together with
other premises, for such rent and upon such terms and conditions (which may
include concessions or free rent and alterations of the Premises) as Landlord,
in its sole discretion, may determine, but Landlord shall not be liable for, nor
shall Tenant's obligations be diminished by reason of, Landlord's failure to
relet the Premises or collect any rent due upon such reletting. Whether or not
this Lease is terminated, Tenant nevertheless shall remain liable for any Base
Rent, Additional Rent or damages which may be due or sustained prior to such
default, all costs, fees and expenses (including without limitation reasonable
attorneys' fees, brokerage fees and expenses incurred in placing the Premises in
first-class rentable condition) incurred by Landlord in pursuit of its remedies
and in renting the Premises to others from time to time. Tenant shall also be
liable for additional damages which at Landlord's election shall be either:
(a) an amount equal to the Base Rent and Additional Rent which
would have become due during the remainder of the Lease Term, less the
amount of rental, if any, which Landlord receives during such period
from others to whom the Premises may be rented (other than any
additional rent payable as a result of any failure of such other person
to perform any of its obligations), which damages shall be computed and
payable in monthly installments, in advance, on the first day of each
calendar month following Tenant's default and continuing until the date
on which the Lease Term would have expired but for Tenant's default.
Separate suits may be brought to collect any such damages for any
month(s), and such suits shall not in any manner prejudice Landlord's
right to collect any such damages for any subsequent month(s), or
Landlord may defer any such suit until after the expiration of the
Lease Term, n which event the cause of action shall be deemed not to
have accrued until the expiration of the Lease Term; or
(b) an amount equal to the present value (as of the date of
the termination of this Lease) of the difference between (i) the Base
Rent and Additional Rent which would have become due during the
remainder of the Lease Term, aid (ii) the fair market rental value of
the Premises for the same period, which damages shall be payable to
Landlord in one lump sum on demand. For purpose of this Section,
present value shall be computed by discounting at a rate equal to one
(I) whole percentage point above the discount rate then in effect at
the Federal Reserve Bank of New York (or, if such rate is not
reasonably available, such substitute rate as Landlord reasonably shall
select).
Tenant waives any right of redemption, re-entry or restoration of the
operation of this Lease under any present or future law, including any such
right which Tenant would otherwise have if Tenant shall be dispossessed for any
cause.
20.3 Landlord's rights and remedies set forth in this Lease are
cumulative and in addition to Landlord's other rights and remedies at law or in
equity, including those available as a result of any anticipatory breach of this
Lease. Landlord's exercise of any such right or remedy shall not prevent the
15
concurrent or subsequent exercise of any other right or remedy. Landlord's delay
or failure to exercise or enforce any of Landlord's rights or remedies or
Tenant's obligations shall not constitute a waiver of any such rights, remedies
or obligations. Landlord shall not be deemed to have waived any default unless
such waiver expressly is set forth in an instrument signed by Landlord. If
Landlord waives in writing any default, then such waiver shall not be construed
as a waiver of any covenant or condition set forth in this Lease except as to
the specific circumstances described in such written waiver. Neither Tenant's
payment of a lesser amount than the sum due hereunder nor Tenant's endorsement
or statement on any check or letter accompanying such payment shall be deemed an
accord and satisfaction, and Landlord may accept the same without prejudice to
Landlord's right to recover the balance of such sum or to pursue any other
remedy available to Landlord. Landlord's re-entry and acceptance of keys shall
not be considered an acceptance of a surrender of this Lease.
20.4 If more than one natural person and/or entity shall execute this
Lease as Tenant, then the liability of each such person or entity shall be joint
and several. Similarly, if Tenant is a general partnership or other entity the
partners or members of which are subject to personal liability, then the
liability of each such partner or member shall be joint and several.
20.5 If Tenant fails to make any payment to any third party or to do
any act herein required to be made or done by Tenant, then Landlord may, but
shall not be required to, make such payment or do such act. Landlord's taking
such action shall not be considered a cure of such failure by Tenant or prevent
Landlord from pursuing any remedy to which it is otherwise entitled in
connection with such failure. If Landlord elects to make such payment or do such
act, then all expenses incurred, plus interest thereon at a rate per annum (the
"Default Rate") which is five (5) whole percentage points higher than the prime
rate published from time to time in the Money Rates section of The Wall Street
Journal (or, if such rate is not reasonably available, such substitute rate as
Landlord reasonably shall select), from the date incurred to the date of payment
thereof by Tenant, shall constitute additional rent.
20.6 If Tenant fails to make any payment of the Base Rent, Additional
Rent or any other sum payable to Landlord within five (5) days after the date
such payment is due and payable, then Tenant shall pay a late charge of five
percent (5%) of the amount of such payment. In addition, such payment and such
late fee shall bear interest at the Default Rate from the date such payment was
due to the date of payment thereof.
ARTICLE 21
BANKRUPTCY
21.1 The following shall be Events of Bankruptcy under this Lease: (a)
Tenant's, a Guarantor's, a General Partner's, or a Managing Member's becoming
insolvent, as that term is defined in Title 11 of the United States Code (the
"Bankruptcy Code"), or under the insolvency laws of any state (the "Insolvency
Laws"); (b) appointment of a receiver or custodian for any property of Tenant, a
Guarantor, a General Partner or a Managing Member, or the institution of a
foreclosure or attachment action upon any property of Tenant, a Guarantor, a
General Partner; or a Managing Member (c) filing of a voluntary petition by
Tenant, a Guarantor, a General Partner or a Managing Member under the provisions
of the Bankruptcy Code or Insolvency Laws; (d) filing of an involuntary petition
against Tenant, a Guarantor, a General Partner or a Managing Member as the
subject debtor under the Bankruptcy Code or Insolvency Laws, which either (i) is
not dismissed within thirty (30) days of filing, or (ii) results in the issuance
of an order for relief against the debtor; or (e) Tenant's, a Guarantor's, a
General Partners or a Managing Member's making or consenting to an assignment
for the benefit of creditors or a composition of creditors.
21.2 (a) Upon occurrence of an Event of Bankruptcy, Landlord shall have
all rights and remedies available pursuant to Article 20; provided, however,
that while a case in which Tenant is the subject debtor under the Bankruptcy
Code is pending, Landlord shall not exercise its rights and remedies pursuant to
Article 20 so long as (i) the Bankruptcy Code prohibits the exercise of such
rights and remedies, and (ii) Tenant or its trustee in Bankruptcy ("Trustee") is
in compliance with the provisions of Section 21.2(b).
(b) If Tenant becomes the subject debtor in a ease pending
under the Bankruptcy Code, then Landlord's right to terminate this
Lease pursuant to Section 21.2(a) shall be subject, to the extent
16
required by the Bankruptcy Code, to any rights of Trustee to assume or
assign this Lease pursuant to the Bankruptcy Code. Trustee shall not
have the right to assume or assign this Lease unless Trustee promptly
(1) cures all defaults under this Lease, (2) compensates Landlord for
monetary damages incurred as a result of such defaults, (3) provides
adequate assurance of future performance on the part of Tenant as
debtor in possession or of the assignee of Tenant, and (4) complies
with all other requirements of the Bankruptcy Code. This Lease may be
terminated in accordance with Section 21.2(a) if the foregoing criteria
for assumption or assignment are not met, or if Tenant, Trustee or such
assignee defaults under this Lease after such assumption or assignment.
Adequate assurance of future performance, as used in this Section
21.2(b), shall mean that all of the following minimum criteria must be
met: (A) Tenant's gross receipts in the ordinary course of business
during the thirty (20) day period immediately preceding the initiation
of the case under the Bankruptcy Code must be greater than two (2)
times the next monthly installment of the Base Rent and additional
rent; (B) both the average and median of Tenant's monthly gross
receipts in the ordinary course of business during the six (6) month
period immediately preceding the initiation of the case under the
Bankruptcy Code must be greater than two (2) times the next monthly
installment of the Base Rent and additional rent; (C) Tenant must pay
its estimated pro rata share of the cost of all services performed or
provided by Landlord (whether directly or through agents or contractors
and whether or not previously included as part of the Base Rent) in
advance of the performance or provision of such services; (D) Trustee
must agree that Tenant's business shall be conducted in a first-class
manner, and that no liquidating sale, auction or other non-first-class
business operation shall be conducted in the Premises; (E) Trustee must
agree that the use of the Premises as stated in this Lease shall remain
unchanged and that no prohibited use shall be permitted; (F) `Trustee
must agree that the assumption or assignment of this Lease shall not
violate or affect the rights of other tenants in the Building; (G)
Trustee must pay to Landlord at the time the next monthly installment
of the Base Rent is due, in addition to such installment, an amount
equal to the monthly installments of the Base Rent and additional rent
due for the next six (6) months thereafter, such amount to be held as a
security deposit; and (H) all assurances of future performance
specified in the Bankruptcy Code must be provided.
ARTICLE 22
SUBORDINATION
22.1 This Lease is subject and subordinate to the lien, previsions,
operation and effect of all mortgages, deeds of trust, ground leases or other
security instruments which may now or hereafter encumber the Building or the
Land (collectively "Mortgages"), to all funds and indebtedness intended to be
secured thereby, and to all renewals, extensions, modifications, recastings or
refinancings thereof The holder of any Mortgage to which this Lease is
subordinate shall have the right (subject to any required approval of the
holders of any superior Mortgage) at any time to declare this Lease to be
superior to the lien, provisions, operation and effect of such Mortgage and
Tenant shall execute, acknowledge and deliver all documents required by such
holder in confirmation thereof.
22.2 In confirmation of the foregoing subordination, Tenant shall at
Landlord's request, but in no event later than five (5) business days following
a request therefore, execute and deliver any requisite or appropriate document.
Tenant waives the provisions of any statute or rule of law now or hereafter in
effect which may give or purport to give Tenant any right to terminate or
otherwise adversely affect this Lease or Tenant's obligations in the event any
such foreclosure proceeding is prosecuted or completed or in the event the Land,
the Building or Landlord's interest therein is sold at a foreclosure sale or by
deed Li lieu of foreclosure. If this Lease is not extinguished upon such sale or
by the purchaser following such sale, then, at the request of such purchaser,
Tenant shall attorn to such purchaser and shall recognize such purchaser as the
landlord under this Lease. Upon such attornment such purchaser shall not be (a)
bound by any payment of the Base Rent or additional rent more than one (1) month
in advance, (b) bound by any amendment of this Lease made without the consent of
the holder of each Mortgage existing as of the date of such amendment, (c)
liable for damages for any breach, act or omission of any prior landlord, or (d)
subject to any offsets or defenses which Tenant might have against any prior
landlord; provided, however, that after succeeding to Landlord's interest, such
17
purchaser shall perform in accordance with the terms of this Lease all
obligations of Landlord arising after the date such purchaser acquires title to
the Building. Within fifteen (15) days after the request of such purchaser,
Tenant shall execute, acknowledge and deliver any requisite or appropriate
document submitted to Tenant confirming such attornment.
22.3 (a) After Tenant receives notice from any person, firm or other
entity that it holds a Mortgage on the Building or the Land, no notice from
Tenant to Landlord alleging any default by Landlord shall be effective unless
and until a copy of the same is given to such holder, provided that Tenant shall
have been furnished with the name and address of such holder. Any such holder
shall have thirty (30) days after its receipt of notice from Tenant of a default
by Landlord under this Lease to cure such default before Tenant may exercise any
remedy hereunder. The curing of any of Landlord's defaults by such holder shall
be treated as performance by Landlord.
(b) In the event that any lender providing construction,
interim or permanent financing or any refinancing for the Building
requires, as a condition of such financing, that modifications to this
Lease be obtained, and provided that such modifications (i) are
reasonable; (ii) do not adversely affect in a material manner Tenant's
use of the Premises as herein permitted; and (iii) do not increase the
rent and other sums to be paid by Tenant hereunder, Landlord may submit
to Tenant a written amendment to this Lease incorporating such required
changes, and Tenant hereby covenants and agrees to execute, acknowledge
and deliver such amendment to Landlord within fifteen (15) days of
Tenant's receipt thereof.
ARTICLE 23
HOLDING OVER
23.1 If Tenant does not immediately surrender the Premises upon the
expiration or earlier termination of the Lease Term, then Tenant shall become a
tenant by the month and the rent shall be increased to equal the greater of (a)
fair market rent for the Premises, or (b) double the Base Rent, additional rent
and other sums that would have been payable pursuant to the provisions of this
Lease if the Lease Term had continued during such holdover period. Such rent
shall be computed on a monthly basis and shall be payable on the first day of
such holdover period and the first day of each calendar month thereafter during
such holdover period until the Premises have been vacated. Landlord's acceptance
of such rent shall not constitute consent by Landlord to tenant's holdover
possession and shall not in any manner adversely affect Landlords other rights
and remedies, including Landlord's right to evict Tenant and to recover damages.
ARTICLE 24
COVENANTS OF LANDLORD
24.1 Landlord covenants that it has the right to enter into this tease
and that if Tenant shall perform timely all of its obligations hereunder, then
subject to the provisions of thus Lease Tenant shall during the Lease Tern
peaceably and quietly occupy aid enjoy the fill possession of the Premises
without hindrance by Landlord or any party claiming through or under Landlord.
24.2 Landlord reserves the following rights: (a) to change the street
address and name of the Building; (b) to change the arrangement and location of
entrances, passageways, doors, doorways, corridors, elevators, stairs, toilets
or other public parts of the Building; (c) to erect, use and maintain pipes and
conduits in and through the Premises; and (d) to grant to anyone the exclusive
right to conduct any particular business in the Building act inconsistent with
Tenant's permitted use of the Premises. Landlord shall also have the right to
construct a building on the property owned by Landlord adjacent to the Building
and to install connections and/or passageway's linking the Building to such
neighboring building. Landlord may exercise any or all of the foregoing rights
without being deemed to be guilty of an eviction, actual or constructive, or a
disturbance of Tenant's business or use or occupancy of the Premises. In
addition, Landlord reserves for itself the exclusive use of all portions of the
roof of the Building, except those portions of the roof specifically designated
Tenant's Equipment Area.
ARTICLE 25
PARKING
25.1 During the Lease Term, Tenant shall have the right to use the
parking spaces as described in the Rider. Tenant shall not sell, assign or
permit anyone other than Tenant's personnel to use any of the aforesaid parking
spaces, except in conjunction with a permitted assignment of this Lease or a
18
permitted sublease of the Premises. Tenant and its personnel shall comply with
all reasonable rules and regulations promulgated by Landlord or Landlord's
parking area manager for the orderly functioning of the Building's parking
areas.
ARTICLE 26
GENERAL PROVISIONS
26.1 Tenant acknowledges that neither Landlord nor any broker, agent or
employee of Landlord has made any representations or promises with respect to
:he Premises or the Building except as herein expressly set forth, and no right,
privilege, easement or license is being acquired by Tenant except as herein
expressly set forth.
26.2 Nothing contained in this Lease shall be construed as creating a
partnership or joint venture between Landlord and Tenant or to create any other
relationship other than that of landlord and tenant.
26.3 Landlord and Tenant each warrant to the other that in connection
with this Lease neither has employed or dealt with any broker, agent or finder,
other than the Broker(s) identified in the Rider. Landlord acknowledges that it
shall pay any commission or fee due to the Broker(s), pursuant to the terms of
the Rider or, if existent, a separate written agreement. Tenant shall indemnify
and hold Landlord harmless from and against any claim for brokerage or other
commissions asserted by any broker, agent or finder employed by Tenant or with
whom Tenant has dealt, other than the Broker(s).
26.4 (a) At any time and from time to time upon not less than fifteen
(15) days prior written notice, Tenant and each subtenant or assignee of Tenant
or occupant of the Premises shall execute, acknowledge and deliver to Landlord
and/or any other person or entity designated by Landlord, an estoppel
certificate: (a) certifying that this Lease is unmodified and in full force and
effect (or if there have been modifications, that this Lease is in full force
and effect as modified and stating the modifications); (b) stating the dates to
which the rent and any other charges have been paid; (c) stating whether or not,
to the best knowledge of Tenant, Landlord is in default in the performance of
any obligation of Landlord contained in this Lease, and if so, specifying the
nature of such default; (d) stating the address to which notices are to be sent;
(e) subject to the terms of the Subordination, Non-Disturbance and Attornment
Agreement, confirming that this Lease is subject and subordinate to all
Mortgages encumbering the Building or the Land; and (1) certifying to such other
matters as Landlord may reasonably request. Any such statement may be relied
upon by any owner of the Building or the Land, any prospective purchaser of the
Building or the Land, or any holder or prospective holder of a Mortgage. Tenant
acknowledges that time is of the essence to the delivery of such statements and
that Tenant's delay, failure or refusal to deliver such statements may cause
substantial damages resulting from, for example, delays in obtaining financing
secured by the Building. Tenant shall be liable for all such damages. Upon
request, but not more frequently than annually, Tenant agrees to furnish
Landlord with current financial statements for Tenant and any Guarantor.
(b) In the event of a Permitted Assignment, if required by the
approved assignee, and if the facts support the statements contained
therein, Landlord will deliver a statement to assignee in form
satisfactory to Landlord, that Tenant is not, as of the date of the
assignment, in default under this Lease.
26.5 Landlord, Tenant all Guarantors and all General Partners or
Managing Members of Tenant, if any, waive trial by jury in any action,
proceeding, claim or counterclaim brought in connection with any matter arising
out of or in any way connected with this Lease, the landlord-tenant
relationship, Tenant's use or occupancy of the Premises or any claim of injury
or damage. Tenant consents to service of process and any pleading relating to
any such action at the location identified in Section 21 of the Rider. Landlord,
Tenant, all Guarantors and all General Partners or Managing Members waive any
objection to the venue of any action filed in any court situated in the
jurisdiction in which the Building is located and waive any right under the
doctrine of forum NON CONVENIENS or otherwise, to transfer any such action filed
in any such court to any other court.
26.6 All notices or other required communications hereunder shall be in
writing and shall be deemed duly given when delivered in person (with receipt
therefore), or when sent by Express Mail or overnight courier service (provided
a receipt will be obtained) or by certified or registered mail, return receipt
requested, postage prepaid, to the following addresses: (i) if to Landlord, care
19
of T-Rex Property Management Services do Terremark Management Services, Inc.,
2601 South Bayshore Drive, Ninth Floor, Coconut Grove, Florida 33133, with a
copy to L. Mark Winston, Esquire, Preminger & Glazer, 5301 Wisconsin Avenue
N.W., Suite 740, Washington, D.C., 20015; (ii) if to Tenant, at the Tenant
Address for Notices identified in paragraph 21 of the Rider. Either party may
change its address for the giving of notices by notice given in accordance with
this Section. If Landlord or the holier of any Mortgage notifies Tenant that a
copy of each notice to Landlord shall be sent to such holder at a specified
address, then Tenant shall send (in the manner specified in this Section and it
the same time such notice is sent to Landlord) a copy of each such notice to
such holder, and no such notice shall be considered duly sent unless such copy
is so sent to such holder.
26.7 Each provision of this Lease shall be valid and enforceable to the
fullest extent permitted by law. If any provision of this Lease or the
application thereof to any person or circumstance shall to any extent be invalid
or unenforceable, then such provision shall be deemed to be replaced by the
valid and enforceable provision most substantively similar to such invalid or
unenforceable provision, and the remainder of this Lease and the application of
such provision to persons or circumstances other than those as to which it is
invalid or unenforceable shall not be affected thereby.
26.8 Feminine, masculine or neuter pronouns shall be substituted for
those of another form, and the plural or singular shall be substituted for the
other number, in any place in which the context may require such substitution.
26.9 The provisions of this Lease shall be binding upon and inure to
the benefit of the parties and each of their respective representatives,
successors and assigns, subject to the provisions herein restricting assignment
or subletting.
26.10 This Lease contains the entire agreement of the parties hereto
and supersedes all prior agreements, negotiations, letters of intent, proposals,
representations, warranties, understandings and discussions between the parties
hereto. Any representation, inducement, warranty, understanding or agreement
that is not contained in this Lease shall be of no force or effect. This Lease
may be modified or changed in any manner only by an instrument duly signed by
both parties.
26.11 This Lease shall be governed by and construed in accordance with
the laws of the jurisdiction in which the Building is located.
26.12 Article and section headings are used for convenience and shall
not be considered when construing this Lease.
26.13 The submission of an unsigned copy of this document to Tenant
shall not constitute an offer or option to lease the Premises. This Lease shall
become effective and binding only upon execution and delivery by both Landlord
and Tenant.
26.14 Time is of the essence of each provision of this Lease.
26.15 This Lease may be executed in multiple counterparts, each of
which shall be deemed an original and all of which together constitute one and
the same document.
26.16 This Lease shall not be recorded. Landlord and Tenant agree to
execute, in recordable form, a short-form memorandum of this Lease, provided
that such memorandum shall not contain any of the specific rental terms set
forth herein. Such memorandum may be recorded in the land records of the
jurisdiction in which the Building is located at Tenant's cost.
26.17 Except as otherwise provided in this Lease, any Additional Rent
or other sum owed by Tenant to Landlord, and any cost, expense, damage or
liability incurred by Landlord for which Tenant is liable, shall be considered
Additional Rent payable pursuant to this Lease and paid by Tenant no later than
ten (10) days after the date Landlord notifies Tenant of the amount thereof.
26.18 Tenant's liabilities existing as of the expiration or earlier
termination of the Lease Term shall survive such expiration or earlier
termination. Similarly, Landlord's obligation to refund to Tenant the excess, if
any, of the amount of Tenant's estimated payments on account of increases in
20
Operating Charges and Real Estate Taxes for the last calendar year falling
wholly or partly within the Lease Term over Tenant's actual liability therefore
shall survive the expiration or earlier termination of the Lease Term.
26.19 If Landlord is in any way delayed or prevented from performing
any of its obligations under this Lease due to fire, act of God, governmental
act or failure to act, strike, labor dispute, inability to procure materials or
any other cause beyond Landlord's reasonable control (whether similar or
dissimilar to the foregoing events), then the time for performance of such
obligation shall be excused for the period of such delay or prevention and
extended for a period equal to the period of such delay or prevention. If Tenant
is in any way delayed or prevented from performing any of its non-monetary
obligations under this Lease due to fire, acto of God, governmental act or
failure to act, strike, labor dispute, inability to procure materials or any
other cause beyond Landlord's reasonable control (whether similar or dissimilar
to the foregoing events), then the time for performance of such obligation shall
be excused for the period of such delay or prevention and extended for a period
equal to the period of such delay or prevention; provided, that such extension
of the period of performance shall not excuse Tenant from any monetary
obligation, including, but not limited to, the payment of Base rent or
Additional Rent.
26.20 The person executing and delivering this Lease on Tenant's behalf
warrants that such person is duly authorized to so act. Simultaneously with the
execution of this Lease, Tenant shall deliver to Landlord certified copies of
any corporate resolution or partnership consent necessary to evidence the due
execution of this Lease on Tenants behalf.
26.21 This Lease includes and incorporates the Rider and all Exhibits
attached hereto.
26.22 This Lease shall, for purposes of applicable law, be deemed a
deed of lease executed under seal.
26.23 In the event that it is necessary for either party to resort to
judicial relief to enforce or vindicate their rights under this Lease, then the
substantially prevailing party shall be entitled, in addition to any other
relief or remedy to which said party shall be entitled, to an award of
reasonable attorney's fees and costs of litigation.
[signature on following page]
21
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease, under
seal, as of the day and year first above written.
WITNESS: LANDLORD:
Technology Center of the Americas, LLC
a Delaware limited liability company
[ILLEGIBLE]
- -------------------
[ILLEGIBLE] By: /s/ MICHAEL KATZ
- ------------------- --------------------------------------------------
Name: MICHAEL KATZ
------------------------------------------------
Title: VICE PRESIDENT OF TELECOM ROUTING EXCHANGE
-----------------------------------------------
DEVELOPERS, INC., ITS MANAGER
-----------------------------
WITNESS/ATTEST: TENANT:
NAP o the Americas, Inc.,
a Florida corporation
[ILLEGIBLE]
- -------------------
[ILLEGIBLE] By: /s/ BRAIN GOODKIND
- ------------------- --------------------------------------------------
Name: BRIAN GOODKIND
------------------------------------------------
Title: SENIOR VICE PRESIDENT
-----------------------------------------------
22
EXHIBIT A
THE BUILDING
Lots 1 through 20, inclusive, in Block 38 North, City of Miami, according to the
Plat thereof recorded in Plat Book B, at page 41, of the Public Records of
Miami-Dade County, Florida.
[diagram of the building]
23
EXHIBIT A-1
PARKING AREAS
[diagram of the parking areas]
24
EXHIBIT B-1
THE PREMISES
[diagram of the premises]
25
EXHIBIT C
WORK AGREEMENT - LANDLORD'S WORK
This Exhibit is attached to and made a part of that certain Lease
Agreement dated the ____ day of ____________, 2000 (the "Lease"), by and between
Technology Center of the Americas LLC, a Delaware limited liability company
("Landlord") and NAP of the Americas, Inc., a Florida corporation ("Tenant").
1. Landlord shall construct the Building on the Property in accordance
with the Plans and Specifications that will be developed by Landlord. The word
"Property" shall mean and include the Building and the land on which Building is
constructed. The Building will be constructed of a precast concrete exterior,
hung on steel reinforced poured concrete slabs, set on 36" by 28" concrete
beams, connecting to 30" square columns, with 30' by 40' column spacing. The
Building will be constructed according to Category F-2 Industrial Standard for
Florida and the Category 5 Storm Code for FEMA State of Emergency. The
structural components of the Building mechanical and electrical systems and
equipment that serve the Premises (but which do not comprise Tenant Work,
Ancillary Equipment, or Alterations by Tenant), shall be in compliance with all
applicable building laws, codes and municipal ordinances. Landlord will
construct the Building on the Property free of impermissible Hazardous Materials
and in compliance with Environmental Laws. Landlord will design and construct
the entranceway and access to the Building and to the Premises as reasonably
required so that they shall be in compliance with the requirements of the
Americans With Disabilities Act as it applies to Tenant's proposed use.
2. LANDLORD'S WORK. The following is the work to be performed by
Landlord at Landlord's sole expense, and at no additional charge to Tenant,
unless its pro rata share of Tenant's Equipment Area is exceeded (and bracketed
notes in each item provide reference to the related items on Exhibit D
pertaining to Tenant's Work:
2.1 ELECTRICAL SERVICE. Pursuant to the Master
Utilization Plan being prepared for the Property,
Florida Power & Light Company ("FP&L") shall
construct two (2) underground 13.2 volt electrical
feeds from two (2) separate substations to two (2)
FP&L vaults adjacent to the Building. There will be
one vault on each of the east and west sides of the
Building. From each vault, Landlord will extend the
13.2 volt power to main switch gear on the first
floor of the Building. Further, Landlord will install
conduit and electrical cable within vertical risers
from the switch gear to the roof of the Building, as
well as to a power panel on each floor. Such power
shall be inactive until Tenant connects such
electrical cable to its own switch gear and
transformers at Tenant's responsibility and expense.
Tenant shall provide transformer and switchgear
protection to stepdown the 13.2 volt power to 480
volts and to distribute said power throughout its
Premises. Tenant shall be provided its pro rata share
of available permanent power as follows: 10,000 amps
of permanent power is to be operational in October of
2001; and, thereafter, 90,000 amps of permanent power
will be provided in phases or increments of 10000
amps each over the succeeding nine (9) month period.
Tenant shall obtain and pay for its entire supply of
electrical power directly from the public utility,
with such service to include direct metering and
billing of utilization. Landlord shall identify the
point of connection within the electrical
distribution system in accordance with the Master
Plan of Utilization for the Building. Tenant also
shall be responsible for obtaining and paying for any
equipment (e.g., network transformers, network
protectors, step-down transformers, etc.) necessary
to satisfy its own or a public utility's requirements
for the requested service.
2.2 UTILITIES DURING CONSTRUCTION. Landlord will provide
temporary power to an FP&L vault by the Delivery
Date. The temporary power will consist of 2000 amps
of 480 volt power per floor. Additionally, Landlord
will provide water and sewer service during Tenant's
construction of the Premises. The cost of temporary
utilities shall be borne by Tenant.
26
2.3 ROOF. Landlord will install a roof consisting of
concrete over insulation, over membrane, over
concrete and will be built to withstand a Category 5
Hurricane and to bear the loads of Tenant's Equipment
Areas as approved by Landlord.
2.4 RISER OR CHASEWAY SPACE. Landlord will build riser
space from the ground level to the roof of the
Building in accordance with the plans and
specifications and Landlord's Master Utilization
Plan, and Tenant may use its pro rata allocation of
such riser space. Specifically, there will be eight
(8) risers for fiber conduit; eight (8) risers for
wet or dry cooling pipes; eight (8) electrical shafts
for power, power controls and back-up power
connections; four (4) risers for domestic water and
condensation drains; and, two (2) risers for common
exhaust, with eleven (11) exhaust lines in each
riser. [See Section 2D of Exhibit D.]
2.5 CONTROLLED ACCESS. Landlord will install central
access monitoring by audio and visual card access at
Building entrances, service areas and parking
facilities. Such system will monitor all access
points, fire safety system and fuel containment
areas. [See Section 2H of Exhibit D.]
2.6 STANDPIPE. Landlord will provide standpipe access to
the Premises for Tenant's tie-in with sufficient
pressure, based on Tenant's approved plans, for
Tenant's anticipated fire suppression system and
equipment. Landlord will stub out six stand pipes to
each floor in each of the six stair towers in the
Building.
2.7 FUEL VAULTS AND TANKS. Landlord will build two (2)
main fuel vaults on the ground level. Each vault will
contain three (3) fuel pods (or sub-vaults). Each
sub-vault shall contain two (2), 15,000 gallon tanks.
These fuels tanks are designed to provide fuel
storage to the Tenant's primary fuel supply at each
generator location. Landlord will provide fuel pumps
in each sub-vault and will monitor connections of all
fuel tanks so as to be able to determine actual
tenant consumption of such fuel from these fuel
tanks.
2.8 GENERATOR LOCATION. Landlord will build two (2)
generator vaults per floor, each of which are sized
for two (2), two (2) Meg gensets with 1,500 gallon
belly tanks each, including containment and flush
stations for each vault. All columns and floors in
every corner of the Building and the roof are
designed to carry loads for gensets and tanks,
subject to Landlord approval, which shall not be
unreasonably withheld or delayed. [See Section 2B of
Exhibit D.]
2.9 FIBER CONDUITS. Landlord will install two (2) duct
banks at the ground on opposite sides of the
Building, each with the capacity to receive fiber
from two (2) compass directions and each with
thirty-six (36), four (4) inch conduits from the
vault through fiber risers to connections on each
floor. A total of one hundred forty four (144), four
(4) inch conduits will beo available for primary and
redundant connection to the Building and for pro rata
tenant utilization. [See Section 2D of Exhibit D.]
2.10 GROUNDING INSTALLATION. Landlord will build two (2)
grounding rooms per floor for the use of grounding
tenants' telecommunications equipment (DC power), as
well as of grounding the Building (AC power).
Landlord will install a screen wall on the roof to
screen Tenant Equipment Areas and to withstand
Category 5 Hurricanes. This screenwall shall be
available to Tenant for the purpose of attaching GPS
antennas. See, also, Section 2(C) of Exhibit D to
this Lease. [See Section 2C of Exhibit D.]
2.11 LIGHTENING PROTECTION. Landlord will install a copper
ring on the roof and in the ground around the
Building for lightening protection.
27
2.12 FLOOR LOADS. Landlord will construct all floors of
the Building at a base live load capacity of 180
pounds per square foot ("PPSF"). Additionally, corner
bays of each floor supporting generator vaults and
columns will be constructed at a live load capacity
of 250 PPSF. All columns will be constructed at a
live load capacity of 350 PPSF.
2.13 LOUVERS. Landlord will install full-sized louvers on
exteriors of each generator vault on each floor for
fresh air intake.
2.14 WINDOWS. The Building will be constructed without
exterior windows.
2.15 PARKING. Landlord will build a one level structured
parking facility on the ground level of the Building
to provide a 127 space parking capacity, including
handicapped spaces.
2.16 BUILDING ELEVATION. Telecommunications space will be
constructed at an elevation two (2) feet above the
highest flood level projected by FEMA for a Category
5 Hurricane. The site is located in category "X"
within Miami, Dade County (out of the 500 year flood
plain).
2.17 ELEVATORS. Landlord will install one freight elevator
sized at 10' by 10' by 14', with a 12,000 pound
freight capacity, which will operate between the
ground floor and the roof (inclusive). Additionally,
Building will contain two (2), 3,500 pound capacity
passenger elevators. Passenger elevators will be used
as freight or service elevators during the base
building construction and, thereafter, in Landlord's
discretion.
2.18 LOADING DOCK. Landlord will install a three (3) dock
platform. Each dock will have a load leveler
providing up to 20,000 pounds of capacity.
2.19 CHILLED WATER CAPACITY. Landlord has been advised by
FP&L that FP&L will make available chilled water
plant capacity to Building. Landlord will stub
connections to in the heat exchange room on each
floor. FP&L has advised Landlord that FP&L will
provide 7,000 tons of capacity in the aggregate for
permanent or back-up cooling for the Building.
2.20 BATHROOMS. Landlord will build one (1) men's room and
one (1) women's room per floor, which will include
two (2) toilets per bath room. Bath rooms will meet
ADA requirements. Additionally, Landlord will build
six (6) "unisex" bathrooms per floor located at each
stair tower, with one (1) toilet per unisex bath
room. [See Section 2K of Exhibit D.]
3. Notwithstanding anything to the contrary in the Lease, Landlord
hereby warrants to Tenant that (a) the Building, and (b) the Premises, to the
extent constructed by Landlord or Landlord's contractor, and to the extent
designed by Landlord or Landlord's designer, shall be constructed and designed
in a good and workmanlike manner and in full compliance with all governmental
regulations, ordinances, and laws existing at the time of the issuance of the
building permits therefore ("Applicable Laws"), and, to the extent designed and
constructed by Landlord shall be suitable for the permitted uses provided in the
Lease.
28
EXHIBIT D
WORK AGREEMENT - TENANT'S WORK
1. GENERAL CONSIDERATIONS.
a) Tenant acknowledges that all improvements to the Premises
and related installations desired by Tenant shall be made strictly in accordance
with the terms of this Lease and at Tenant's sole cost and expense. All of
Tenant's Work shall be in compliance with an F-2 construction type within the
meaning of and in accordance with the currently effective South Florida Building
Code. Landlord's only obligation with respect to the improvement of the Premises
is set forth and listed in the Rider, the Lease and Exhibit C above. All of
Tenant's Work, and the installation of any of Tenant's Equipment, shall be in
compliance with all applicable laws, codes and regulations of any federal, state
and local government or agency having jurisdiction thereof.
b) All improvements desired to be performed by Tenant, and
approved by Landlord in accordance with the terms of this Lease, are hereinafter
referred to as "Tenant's Work". All such improvements shall be installed by
Tenant at its sole risk and expense. Tenant's contractor must coordinate all of
its work with the Landlord's designated base building contractor or construction
manager ("CM") and shall work in cooperation with said CM (subject to the
reasonable rules and regulations imposed by the CM) so as to coordinate the use
of and access to the Property and Building common areas, the loading facilities,
freight elevators, risers, etc. throughout the development and alteration of the
Property, Building and the Premises.
c) Notwithstanding anything to the contrary in the Rider and
the Lease, Tenant shall submit all plans and specifications for construction of
improvements and installation of equipment and materials, and for any riser or
chaseway space, to the Landlord and CM for review, comments and approval in
conformity with the Rider and Lease. Given the extraordinary complexity of the
inter-relationship between the needs of the various tenants of the Complex, and
Landlord's wish to accommodate the needs of all tenants to the extent reasonably
possible as they relate to the initial construction and alteration of their
respective premises, and as it relates to affording each of them utility
capacity and access to Tenant's Equipment Areas, Tenant has a duty to consult
with Landlord and CM and to afford them adequate opportunity to coordinate work
and installations so as to ensure that no conflict arises between or among
tenants.
2. TENANT'S REQUIREMENTS AND EQUIPMENT. In connection with Tenant's
build-out of its initial improvements within the Premises and Tenant's intended
use of its Premises, Landlord hereby grants Tenant the following rights with
respect to the following technical requirements and installations of equipment
(collectively, "Tenant's Equipment") pursuant and subject to the terms of this
Lease, including but not limited to the conditions set forth in this Exhibit D;
provided, however, that in each case (i) Tenant shall be responsible for
installing, maintaining and repairing Tenant's Equipment and for restoring the
Premises, the Building and the Property, as applicable, upon installation or
removal. At Landlord's option, Tenant must restore to normal condition and must
remove all lines within conduits, risers and chaseways at Tenant's expense, as
applicable, at Tenant's sole cost and expense; (ii) the Tenant's Equipment shall
be located in the designated portion of Tenant's Equipment Area as approved by
Landlord; (iii) the Tenant's Equipment shall be installed, maintained and
repaired by qualified engineers, contractors and technicians and shall at all
times comply with all applicable laws; and (iv) there shall be no additional
rent or charge imposed on Tenant as a result of any Tenant's Equipment, except
to the extent that said installation now or in the future occupies more than the
allocated portion of the Tenant's Equipment Area within the meaning of the
Lease. All of the Tenant's Equipment shall be and remain the property of Tenant
and shall be for Tenant's exclusive use. Landlord acknowledges that all of
Tenant's Equipment is integral to Tenant's business operations and that Tenant
would not be entering into this Lease in the absence of these provisions.
Subject to the reasonable regulation thereof by Landlord, Tenant shall have
access to those portions of the Building and Property containing the Tenant's
Equipment 24 hours per day/7 days a week. Subject to the Landlord's prior review
and approval of tenant's plans and specifications in accordance with this Lease:
A. HVAC/MECHANICAL. Landlord hereby grants to Tenant the right
to install, operate, maintain, repair and replace Tenant's HVAC system with
related chillers, wiring, piping, conduits, vents and equipment. Such equipment
29
(collectively the "Cooling Equipment") will beo located on the roof of the
Building in the designated Tenant's Equipment Area thereon, installed to the
reasonable design standard of Landlord.
B. GENERATORS. Tenant shall be permitted to install, operate,
maintain, repair and replace, with like-kind equipment, four (4), 2000 kw/480
volt diesel generators to be located in the generator vault location described
in Section 2.8 of Exhibit C above and in Tenant's Equipment Area inside of the
Building in a location designated by Landlord, as shown in Exhibit B-2, together
with related wiring, piping, conduits, vents and equipment, including eight
4-inch conduits, the location of which is also to be approved by Landlord. In
connection with such generator, Tenant shall also have the right to place up to
a 1,500 gallon fuel storage tank in the base of each generator in a belly tank
configuration, in accordance with all local rules, laws and regulations. Tenant
shall have the right to test the generator once per week at a time agreed to by
Landlord in its reasonable discretion. Generator shall be equipped with
silencers and attenuator systems, sufficient to maintain sound levels at or
below a rating of 65 dba measured within thirty (30) feet of each generator.
C. GROUNDING INSTALLATION. As noted on Exhibit C above,
Landlord shall build, install, operate, maintain, repair and replace the
grounding installation for the Building and Property. Tenant acknowledges that
the construction of this system shall be a cost that will be passed through to
the tenants based on their respective Proportionate Share. The cost of
operating, maintaining, repairing, upgrading and replacing the installation
shall be considered an Operating Charge and shall also be passed through to the
tenants based on their respective Proportionate Share. Subject to Landlord's
review and approval of the plans and specifications thereof to ensure, among
other things, the integration of same into the Building and Property grounding
system, Tenant shall have the right to install, operate, maintain, repair and
replace a system within the Premises for the proper grounding of the
telecommunications equipment which shall connect same to the Building and
Property grounding system in a manner approved by Landlord, with such approval
not to be unreasonably withheld or delayed. Tenant will connect to the
lightening protection system in a manner approved by landlord in Landlord's
reasonable discretion, and at the sole cost of Tenant.
D. CONDUIT/ACCESS/RISER SPACE. Tenant shall submit its
specifications of all equipment and the size, number and type of conduits for
any and all connections from its Premises to Tenant's Equipment Areas in the
Building to Landlord for its review and approval, which shall not be
unreasonably withheld or delayed. All such plans, specifications and
installations shall comply with Landlord's Master Utilization Plan and conform
to the requirements of installations made in Sections 2.4 and 2.9 of Exhibit C
above.
E. LIFE SAFETY. Tenant may install a fire suppression system
(or similar system that may be appropriate) independent of the Building systems.
Tenant shall also have the right to modify any sprinkler systems to a dry pipe,
double pre-action system. Any such modification shall be in strict compliance
with all codes and after approval by Landlord and coordination with CM. The cost
of any such modification shall be borne by Tenant. The monitoring aspects of
fire suppression and security systems are also subject to the prior review and
approval of Landlord's insurance carrier, which approval shall not be
unreasonably withheld or delayed. The installation of any life safety system or
equipment within the Premises shall be performed in a manner that enables it to
be appropriately integrated into the life safety system for the Building and
Property, and such integration shall be subject to Landlord's approval. Tenant
shall provide audio and visual fire safety within the Premises at its expense
that is compatible with and connected to Landlord's fire safety system for the
Building and Property, and Tenant shall be obligated to notify Landlord in event
of emergency.
F. ANTENNA: Tenant may install, at its sole cost and expense,
a supporting antenna. Any installation shall be subject to Landlord's approval
of the size, design, location, height, installation and appearance, such
approval to not be unreasonably withheld or delayed.
G. REPLACEMENT. Subject to Landlord's prior review and
approval, which shall not be unreasonably withheld or delayed, Tenant shall have
the right to replace any or all of its equipment, including generators,
batteries, GPS systems, HVAC, etc., with like kind equipment, at any time during
the term of the Lease. Tenant shall promptly repair any damage to the Building
or the Property caused by such replacement at Tenant's sole risk and expense.
30
H. SECURITY. Subject to Section 2.5 of Exhibit C above, and
upon Landlord's review and approval, Tenant shall have the right to install a
specialized "card-key" security system, palm readers, retinal scanners, and
video telephones to govern access to the Premises or certain portions thereof as
designated by Tenant. Landlord agrees that Tenant shall have the right to
install such a system at Tenant's sole cost and expense.
I. FUEL CONNECTIONS. Tenant is required to install at its
expense all fuel lines from the header on its floor in the fuel riser to its
fuel pump, then to its generator.
J. DEMISING WALLS. Tenant is required to install at its
expense fire- rated demising walls at a fire rating for all common area
corridors as required by code, and subject to the prior review and approval of
Landlord, which shall not be unreasonably withheld or delayed.
K. BATHROOMS. Tenant may install additional bathrooms at its
expense upon Landlord's review and approval.
L. FIBER. Tenant is required to install at its expense all
fiber lines and conduits from Landlord's main fiber duct banks on the ground
level to its Premises and other approved areas or to all Tenant Equipment Areas
as reasonably approved by Landlord.
3. OTHER MATTERS.
A. Subject to the review and approval of plans and
specifications by Landlord, and subject to other applicable provisions of this
Lease, Tenant, at Tenant's expense, may bring fiber optic cables to the Premises
from any existing or future telecommunications provider which has or will have
fiber in the Building, whether located in the Main Point of Entry(s)
("MPOE(s)"), main building telecommunications room(s), or other authorized
locations within the Building.
B. Subject to other applicable provisions of this Lease, and
upon the approval of Tenant's plans and specifications by Landlord, Tenant may,
at its sole cost and expense, or at the sole cost and expense of the fiber
provider, bring additional fiber from telecommunications fiber providers,
whether currently serving the Building or not, into the Building to provide
fiber to the Premises. The construction of such additional fiber may include the
removal and replacement of. curbing, pavement, and sidewalks at Tenant's or
fiber provider's expense; provided, that (i) Tenant and its contractors comply
with all applicable laws and regulations and obtain all permits at Tenant's
expense, (ii) any damage or destruction to curbing, pavement, sidewalks and
other portions or elements of the Building or the Property (including the
premises of any other tenant of the Building) shall be forthwith repaired or
replaced, as applicable, at the sole cost of Tenant (and such obligation shall
be considered Additional Rent); and (iii) the work to be performed is
coordinated with Landlord's CM, and the identity of any contractor or
subcontractor performing work, and any security by such contractor(s) is
approved in advance in writing by Landlord. Tenant and Tenant's contractor shall
also comply in all respects with Article 9 of the Standard Provisions of the
Lease.
4. FLOOR LOADS: Tenant may not exceed permitted floor loads without the
prior written approval of Landlord, which approval may be granted, conditioned
or denied in the sole and absolute discretion of Landlord.
5. LOADING DOCKS, FREIGHT ELEVATOR USE DURING CONSTRUCTION: Tenant
shall coordinate its construction activities and deliveries with Landlord's CM
so as to ensure that its use and scheduling of freight elevators and other
facilities is compatible with Landlord's reasonable requirements and those of
other tenants. Landlord shall review and respond to Tenant requests for review
of plans and specifications of structural matters within thirty (30) business
days of their submission to Landlord's CM. Landlord shall review and respond to
tenant requests for review of plans and specifications of non-structural matters
within fifteen (15) business days of their submission to Landlord's CM.
31
EXHIBIT E
RULES AND REGULATIONS
This Exhibit is attached to and made a part of that certain Lease
Agreement dated as of the ____ day of October 2000 (the "Lease"), by and between
T-Rex Technology Center of the Americas LLC, a Delaware limited liability
company ("Landlord") and NAP of the Americas. Inc., a Florida corporation
("Tenant").
The following Rules and Regulations have been formulated for the safety
and well-being of all tenants of the Building and to ensure compliance with all
municipal said other requirements. Strict adherence to these Rules and
Regulations is necessary to guarantee that each and every tenant will enjoy a
safe and unannoyed occupancy in the Building in accordance with the Lease. Any
continuing violation of these Rules and Regulations by Tenant, after notice from
Landlord, shall be deemed to be an Event of Default under the Lease.
Landlord may, upon request by any tenant, waive the compliance by such
tenant to any of these Rules and Regulations, provided that (i) no waiver shall
be effective unless signed by Landlord or Landlord's authorized agent, (ii) any
such waiver shall not relieve such tenant from the obligation to comply with
such Rule and Regulation in the future unless expressly consented to by
Landlord, (iii) no waiver granted to any tenant shall relieve any other tenant
from the obligation of complying with the Rules and Regulations unless such
other tenant has received a similar waiver in writing from Landlord, and (iv)
any such waiver by Landlord shall not relieve Tenant from any obligation or
liability of Tenant to Landlord pursuant to the Lease for any loss or damage
occasioned as a result of Tenant's failure to comply with any such Rule or
Regulation.
1. The sidewalks, entrances, passages, courts, elevators,
vestibules, stairways, corridors, halls and other parts of the
Building not occupied by any tenant shall not be obstructed or
encumbered by any tenant or used for any purpose other than
ingress and egress to and from the Premises, and if the
Premises are situated on the ground floor of the Building,
then Tenant shall, at its own expense, keep the sidewalks and
curbs directly in front of the Premises clean and free from
ice and snow. Landlord shall have the right to control and
operate the public portions of the Building and the facilities
furnished for common use of the tenants in such manner as
Landlord deems best for the benefit of the tenants generally.
No tenant shall permit the visit to the Premises of persons in
such numbers or under such conditions as to interfere with the
use and enjoyment by other tenants of the entrances,
corridors, elevators and other public portions or facilities
of the Building.
2. No awnings or other projections shall be attached to any wall
of the Building without the prior written consent of Landlord.
No drapes, blinds, shades or screens shall be attached to or
hung in, or used in connection with, any window or door of the
Premises, without the prior written consent of Landlord. Such
awnings, projections, curtains, blinds, shades, screens or
other fixtures must be of a quality, type, design and color,
and attached in the manner, approved by Landlord.
3. No showcases or other articles shall be put in front of or
affixed to any part of the exterior of the Building, nor
placed in the halls, corridors or vestibules without the prior
written consent of Landlord.
4. The water and wash closets and other plumbing fixtures shall
not be used for any purposes other than those for which they
were constructed, and no sweepings, rubbish, rags, chemicals,
paints, cleaning fluids or other substances shall be thrown
therein. All damages resulting from any misuse of the fixtures
shall be borne by the tenant who, or whose servants,
employees, agents, visitors or licensees, shall have caused
the same.
5. There shall be no marking, painting, drilling into or in any
way defacing the Building or any part of the Premises visible
from public areas of the Building. Tenant shall not construct,
maintain, use or operate within the Premises any electrical
device, wiring or apparatus in connection with a loud speaker
32
system or other sound system, except as reasonably required
for its communication system and approved prior to the
installation thereof by Landlord. No such loudspeaker or sound
system shall be constructed, maintained, used or operated
outside of the Premises.
6. No bicycles, vehicles, animals, birds or pets of any kind
shall be brought into or kept in or about the Premises, and no
cooking (except for hot-plate or microwave cooking by Tenant's
employees for their own consumption, the equipment for and
location of which are first approved by Landlord) shall be
done or permitted by any tenant on the Premises. No tenant
shall cause or permit any unusual or objectionable odors to be
produced upon or to permeate from the Premises.
7. The use of the Premises by each tenant was approved by
Landlord prior to execution of the Lease and such use may not
be changed from the Permitted Use without the prior approval
of Landlord. No space in the Building shall be used for
manufacturing of goods for sale in the ordinary course of
business, for the storage of merchandise for sale in the
ordinary course of business or for the sale at auction of
merchandise, goods or property of any kind.
8. No tenant shall make any unseemly or disturbing noises or
disturb or interfere with occupants of the Building or
neighboring buildings or Premises or those having business
with them whether by the use of any musical instrument, radio,
talking machine, unmusical noise, whistling, singing or in any
other way. No tenant shall throw anything out of the doors or
windows or down the corridors or stairs.
9. No flammable, combustible or explosive fluid, chemical,
asbestos or other hazardous substance or any other material
harmful to tenants of the Building shall be brought, installed
in or kept upon the Premises. No space heaters, fans or
individual air conditioning units may be used in the Premises.
Any electrical or extension cords deemed to be a fire hazard
by Landlord in Landlord's sole discretion shall be removed.
10. No additional locks or bolts of any kind shall be placed upon
any of the doors or windows by any tenant nor shall any
changes be made in existing locks or the mechanism thereof.
The doors leading to the corridors or main halls shall be kept
closed at all times except as they may be used for ingress or
egress. Each tenant shall, upon the termination of its
tenancy, restore to the Landlord all keys of stores, offices,
storage and toilet rooms either furnished to, or otherwise
procured by, such tenant, and in the event of the loss of any
keys so furnished, such tenant shall pay to Landlord the cost
thereof.
33
EXHIBIT E
GUARANTY OF LEASE
THIS GUARANTY made as of this ___ day of October, Terremark Worldwide,
Inc. ("Guarantor") in favor of Technology Center of the Americas, LLC, a
Delaware limited liability company ("Landlord").
R E C I T A L S
A. NAP of the Americas, Inc. ("Tenant") is desirous of entering
into that certain lease of even date herewith with Landlord
relating to certain premises known as 149,184 square feet of
space located on the second floor of the T-Rex Technology
Center of the Americas -- Miami, which Lease is herein
referred to as the "Lease").
B. Guarantor has requested that Landlord enter into the Lease.
C. Landlord has declined to enter into the Lease unless Guarantor
guarantees the Lease.
NOW, THEREFORE, to induce Landlord to enter into the Lease, Guarantor
hereby agrees as follows:
1. UNCONDITIONAL GUARANTY. Guarantor unconditionally guarantees to
Landlord and the successors and assigns of Landlord the full and punctual
payment, performance and observance by Tenant of all of the terms, covenants and
conditions in the Lease to be kept, performed or observed by Tenant. 1f at any
time, Tenant shall default in the performance or observance of any of the terms,
covenants or conditions in the Lease to be kept, performed or observed by
Tenant, including, without limitation, the payment of any rent or other charge,
Guarantor will keep, perform and observe the same, as the case may be, in place
and stead of Tenant. It is understood and agreed that the use of the word
"Lease" herein shall include the Basic Lease Information Rider ("Rider"), all
exhibits, and all schedules attached to the Lease.
2. WAIVER OF NOTICE; NO RELEASE OF LIABILITY. Any act of Landlord or
the successors or assigns of Landlord consisting of the giving of any consent to
any manner or thing relating to the Lease, or the granting of any indulgences or
extensions of time to Tenant, may be done without any notice to Guarantor and
without releasing or diminishing the obligations of Guarantor hereunder. The
obligations of Guarantor hereunder shall not be released or diminished by
Landlord's receipt, application or release of security given for the performance
and observance of covenants and conditions in the Lease to be performed or
observed by Tenant, or by any modifications of the Lease. The liability of
Guarantor hereunder shall in no way be affected by (a) the release or discharge
of Tenant in any creditors, receivership, bankruptcy or other proceedings, (b)
the impairment, limitation or modification of the liability of Tenant or the
estate of Tenant in bankruptcy, or of any remedy for the enforcement of Tenant's
liability under the Lease resulting from the operation of any present or future
provision of the Federal Bankruptcy Code or other statute or from the decision
in any court; (c) the rejection or disaffirmance of the Lease in any such
proceedings; (d) the assignment or transfer of the Lease by Tenant; (e) any
disability or other defense of Tenant; (f) the cessation from any cause
whatsoever of the liability of Tenant; or (g) the exercise by Landlord of any
rights or remedies reserved to Landlord under the Lese, provided or permitted by
law or by reason of any termination of the Lease.
3. JOINDER: STATUTE OF LIMITATIONS. Guarantor agrees that it may be
joined in any action against Tenant in connection with the obligations of Tenant
under the Lease as covered by this Guaranty and recovery may be had against
Guarantor in any such action or Landlord may enforce the obligations of
Guarantor hereunder without first taking any action whatsoever against Tenant or
its successors and assigns, or pursue any other remedy or apply any security it
may hold, and Guarantor hereby waives all rights to assert or plead at any time
any statute of limitations as relating to the Lease, the obligations of
Guarantor hereunder and any and all surety or other defenses in the nature
thereof.
4. LIMITATION OF CLAIMS; SUBORDINATION. Until all of the covenants and
conditions in the Lease on Tenant's part to be performed and observed are fully
performed and observed, Guarantor:
34
(a) shall have no right of subrogation against Tenant by
reason of any payments or acts of performance by Guarantor, in compliance with
the obligations of Guarantor hereunder;
(b) waives any right to enforce any remedy which Guarantor now
or hereafter shall have against Tenant by reason of any one or more payments or
acts of performance in compliance with the obligations of Guarantor hereunder;
and (c) subordinates any liability or indebtedness of Tenant now or hereafter
held by Guarantor to the obligations of Tenant to Landlord under the Lease.
5. DE FACTO TENANT. In the event this Guaranty shall be held
ineffective or unenforceable by any court of competent jurisdiction, or in the
event of any limitation of liability of Guarantor herein other than as expressly
provided herein, then Guarantor shall be deemed to be a tenant under the Lease
with the same force and effect as if Guarantor were expressly named as a joint
and several tenant therein with respect to the obligations of Tenant thereunder
hereby guaranteed.
6. AMENDMENT OR ASSIGNMENT OF LEASE. The provisions of the Lease may be
changed, modified, amended or waived by agreement between Landlord and Tenant at
any time, or by course of conduct, without the consent of and without notice to
Guarantor. This Guaranty shall guarantee the performance of the Lease as so
changed, modified, amended or waived. Any assignment of the Lease (as permitted
by the Lease) shall not affect this Guaranty and if Landlord disposes of its
interest in the Lease, "Landlord", as used in this Guaranty, shall mean
Landlord's successors and assigns.
7. DEFENSES OF TENANT. Guarantor waives any defense by reason of any
legal or other disability of Tenant and any other party to the Lease, and
further waives any other defense based on the termination of Tenant's liability
for any cause, as well as any presentments, or notices ofo acceptance of this
Guaranty, and further waives all notices of the existence, creation, or
incurring of new or additional obligations.
8. NO WAIVER BY LANDLORD. No delay on the part of Landlord in
exercising any right hereunder or under the Lease shall operate as a waiver of
such right or of any other right of Landlord under the Lease or hereunder, nor
shall any delay, omission or waiver on any one or more occasions be deemed a bar
to or a waiver of the same or any other right on any other future occasion.
9. JOINT AND SEVERAL LIABILITY. If there is more than one undersigned
Guarantor, the term "Guarantor", as used herein, shall include all of such
undersigned and each and every provision of this Guaranty shall be binding on
each and every one of the undersigned and they shall be jointly and severally
liable hereunder and Landlord shall have the right to join one or all of them in
any proceeding or to proceed against them in any order.
10. WHOLE AGREEMENT. This instrument constitutes the entire agreement
between Landlord and Guarantor with respect to the subject matter hereof;
superseding all prior oral or written agreements or understandings with respect
hereto and may not be changed, modified, discharged or terminated orally or in
any manner other than by an agreement in writing signed by Guarantor and
Landlord.
11. APPLICABLE LAW. This Guaranty shall be governed by and construed in
accordance with the laws of the State in which the Premises are located.
12. GUARANTOR'S SUCCESSORS. Guarantor's obligations under this Guaranty
shall be binding on the successors, heirs and assigns of Guarantor. Guarantor
shall not be released by any assignment or delegation by it of its obligations
hereunder.
13. ATTORNEYS' FEES. If Landlord is required to enforce Guarantor's
obligations hereunder by legal proceedings, Guarantor shall pay to Landlord all
costs incurred, including without limitation, reasonable attorneys, fees.
14. CAPTIONS. The paragraph headings appearing herein are for purposes
of identification and reference only and shall not be used in interpreting this
Guaranty.
35
15. INTERPRETATION; SEVERABILITY. It is agreed that if any provision of
this Guaranty or the application of any provision to any person or any
circumstance shall be determined to be invalid or unenforceable, such
determination shall not affect any other provisions of this Guaranty or the
application of such provision to any other person or circumstance, all of which
other provisions shall remain in full force and effect. It is the intention of
the parties hereto that if any provision of this Guaranty is capable of two
constructions one of which would render the provision valid, the provision shall
have the meaning which renders it valid.
16. EXTENSIONS AND RENEWALS. This Guaranty shall apply to the Lease,
any extension or renewal thereof and to any holdover term following the term
granted in the Lease or any extension or renewal thereof.
17. ACKNOWLEDGMENT; ENFORCEABILITY. GUARANTOR REPRESENTS AND WARRANTS
TO LANDLORD THAT GUARANTOR HAS READ THIS GUARANTY AND UNDERSTANDS THE CONTENT
HEREOF AND THAT THIS GUARANTY IS ENFORCEABLE AGAINST GUARANTOR IN ACCORDANCE
WITH ITS TERMS.
18. FINANCIAL STATEMENTS. Tenant shall provide current audited
financial statements for the Guarantor to Landlord with the delivery of the
Lease, as well as upon the request of Landlord from time to time during the term
of the Lease.
IN WITNESS WHEREOF, Guarantor has executed this Guaranty as of the day
and year first above written.
WITNESSES GUARANTOR
TERREMARK WORLDWIDE, INC.
- ----------------------------- ----------------------------------------------
- -----------------------------
36
SCHEDULE 4.2
WIRE TRANSFER INSTRUCTIONS
WIRING INSTRUCTION TO OCEAN BANK:
NAP of the Americas, Inc.
2601 S. Bayshore Drive, PH1B
Coconut Grove, Fl 33133
Account No. 101292854-05
Ocean Bank
780 NW 42 Avenue
Miami, Florida 33126
ABA ff06601 1392
SCHEDULE 5.1(b)
TENANT'S OPERATING CHARGES
Operating Charges shall mean all costs and expenses incurred by
Landlord in the ownership and operation of the Building, including all of the
following: (1) electricity, gas, water, sewer and other utility charges with
respect to the operation of common areas of the Building; (2) premiums and other
charges for insurance (including, but not limited to, property insurance, rent
loss insurance and liability insurance); (3) all market rate management fees
incurred in the management of the Building; (4) all costs incurred in connection
with service and maintenance contracts; (5) maintenance and repair expenses and
supplies; (6) amortization (calculated over the useful life of the improvement,
with interest at Landlord's cost of funds or (if the improvement is not
financed) at the prime rate reported in The Wall Street Journal) for capital
expenditures which have been approved by Tenant or which are made by Landlord
for the purpose of complying with legal or insurance requirements or that are
intended to result in a net decrease in Operating Charges (hereinafter referred
to as "Qualified Capital Expenditures"); (7) salaries, wages, benefits and other
expenses of Building personnel; (8) legal fees (except as excluded below),
administrative expenses, and accounting, architectural and other professional
fees and expenses; (9) costs of any service not provided to the Building on the
Lease Commencement Date but thereafter provided by Landlord in the prudent
management of the Building; (10) charges for concierge, security, janitorial,
char and cleaning services and supplies furnished to the Building; (11) costs
associated with the provision or operation of any common facilities and service
amenities; (12) the cost of maintaining management, engineering and/or
maintenance offices in the Building (including the fair market rental value of
the space devoted to such uses); (13) any business, professional and
occupational license tax paid by Landlord with respect to the Building; (14) any
personal property tax payable with respect to Landlord's property located at the
Building that is used in connection with the maintenance, repair, or operation
of the Building; and (15) any other expense incurred by Landlord in maintaining,
repairing or operating the Building and related property. Operating Charges
shall not include the following:
(i) Principal payments or interest payments on any mortgage, other debt
costs and ground rent payments on any ground lease.
(ii) Leasing commissions paid by Landlord.
(iii) Cost of repair or other work occasioned by fire, windstorm or other
casualty, or by condemnation, to the extent reimbursed by insurance
proceeds or condemnation award, and any other costs of items for which
Landlord receives reimbursement from a third party.
(iv) Costs incurred due to renovating, decorating, redecorating or otherwise
improving space for tenants in the Building.
(v) Costs of correcting latent defects (not standard repairs) during the
initial warranty period after construction. All repairs and
replacements resulting from ordinary wear and tear, use, fire,
casualty, vandalism and other matters shall not be deemed to be latent
construction defects.
(vi) Landlord's costs of electricity and other services sold to particular
tenants which services are not standard for the Building and for which
Landlord is entitled to reimbursement by such particular tenants.
(vii) Depreciation and amortization of the Building or any fixtures or
improvements therein.
(viii) Expenses in connection with services or other benefits of a type which
are not standard for the Building and which are not available to Tenant
without specific charge therefore, but which are provided to another
tenant or occupant and for which such other tenant or occupant is
specifically charged by Landlord.
(ix) Costs, penalties, fines and associated legal expenses incurred due to
violation by Landlord or any tenant in the Building of the terms of any
applicable federal, state or local government laws, codes or similar
regulations that would not have been incurred but for any such
violations by Landlord, it being intended that each party shall be
responsible for costs resulting from its own violation of such laws,
codes and regulations as the same shall pertain to the Building.
Notwithstanding the foregoing, interest or penalties incurred in
connection with assessments or taxes which are reasonably contested by
Landlord shall be included as an acceptable Operating Charge.
(x) Costs of Landlord's general overhead and general administrative
expenses (individual, partnership or corporate, as the case may be),
which costs would not be chargeable to operating expenses of the
Building in accordance with generally accepted accounting principles,
consistently applied.
(xi) Any compensation paid to clerks, attendants or other persons in
commercial concessions (such as snack bar or restaurant), if any,
operated by Landlord.
(xii) All items and services for which Tenant or any other building tenant
specifically reimburses Landlord.
(xiii) Legal fees in connection with leasing, tenant disputes or enforcement
of leases.
(xiv) Capital expenditures, except Qualified Capita] Expenditures.
(xv) Costs of overtime HVAC service whether provided to the Tenant or any
other tenant of the Building.
(xvi) Costs of repairing, replacing or otherwise correcting defects
(including latent defects) in or inadequacies of (but not the costs of
ordinary and customary repair for normal wear and tear) the initial
design or construction of the Building.
(xvii) Allowances, concessions, permits, licenses, inspections and other costs
and expenses incurred in completing, fixturing, renovating or otherwise
improving, decorating or redecorating space for tenants (including
Tenant), prospective tenants or other occupants of the Building, or
vacant leasable space in the Building, or constructing or finishing
demising walls and public corridors with respect to any such space.
(xviii) Any amount specifically required to be paid by Landlord to Tenant under
this Lease, and any cost or expense (A) which is due to Landlord's
negligence or willful misconduct, (B) which is incurred pursuant to any
Landlord indemnification and/or hold harmless provision, or (C) which
is a result of any breach of this Lease or any other lease for space in
the Building.
(xix) Costs incurred in connection with the sale, financing, refinancing,
mortgaging, selling or change of ownership of the Land or Building.
(xx) Costs, fines, interest, penalties, legal fees or costs of litigation
incurred due to the late payments of utility bills and other costs of
operating the Building incurred by Landlord's failure to make such
payments when due.
(xxi) All amounts which would otherwise be included in Operating Charges
which are paid to any affiliate or subsidiary of Landlord, or any
representative, employee or agent of same, to the extent the costs of
such services exceed the competitive rates for similar services of
comparable quality rendered by persons or entities of similar skill,
competence and experience. It is hereby acknowledged by Tenant that the
management fee in the amount of 5% of gross rentals to be paid to an
affiliate of Landlord is a competitive, market rate fee.
(xxii) Increased insurance premiums caused by Landlord's or any other tenant's
hazardous acts.
(xxiii) Moving expense costs of tenants of the Building.
(xxiv) Advertising, public relations and promotional costs associated with the
promotion or leasing of the Building, and costs of signs in or on the
Building identifying the owners of the Building or any tenant of the
Building.
(xxv) Costs incurred to correct violations by Landlord of any law,
regulation, rule, order or ordinance which was in effect as of the
Lease Commencement Date.
(xxvi) Non-cash items, such as interest on capital invested, bad debt losses,
rent losses and reserves for such losses.
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(xxvii) Electric power costs for which any tenant directly contracts with the
local public service company.
In the event a single expenditure pays for the provision of a good or service to
both the Building and any neighboring building owned by Landlord, then Operating
Charges of the Building shall include only the portion of such payment that is
equitably allocable to the Building, as reasonably determined by Landlord.
3