EXHIBIT 10.9
[*]
[*]
Chicago, Illinois
LEASE AGREEMENT
BETWEEN
CARLYLE-CORE CHICAGO LLC, a Delaware limited liability company
("Landlord")
AND
EQUINIX, INC., a Delaware corporation
("Tenant")
_________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
TABLE OF CONTENTS
1. BASIC LEASE INFORMATION................................... 1
2. LEASE GRANT............................................... 4
3. TERM; POSSESSION.......................................... 4
4. RENT...................................................... 4
5. COMPLIANCE WITH LAWS; USE................................. 9
6. EQUIPMENT SPACE........................................... 10
7. SERVICES.................................................. 11
8. ALTERATIONS............................................... 13
9. MAINTENANCE............................................... 15
10. ENTRY BY LANDLORD......................................... 15
11. ASSIGNMENT AND SUBLETTING................................. 15
12. LIENS..................................................... 17
13. INDEMNITY AND WAIVER OF CLAIMS............................ 18
14. INSURANCE................................................. 19
15. SUBROGATION............................................... 19
16. CASUALTY DAMAGE........................................... 19
17. CONDEMNATION.............................................. 20
18. SECURITY DEPOSIT.......................................... 20
19. EVENTS OF DEFAULT......................................... 22
20. REMEDIES.................................................. 22
21. LIMITATION OF LIABILITY; LANDLORD'S TRANSFER.............. 23
22. NO WAIVER................................................. 23
23. QUIET ENJOYMENT........................................... 24
24. RELOCATION................................................ 24
25. HOLDING OVER.............................................. 24
26. SUBORDINATION TO MORTGAGES; ESTOPPEL CERTIFICATE.......... 24
27. ATTORNEYS' FEES........................................... 24
28. NOTICES................................................... 25
29. EXCEPTED RIGHTS........................................... 25
30. SURRENDER OF PREMISES..................................... 25
31. PARKING................................................... 25
32. ENVIRONMENTAL MATTERS/HAZARDOUS MATERIALS................. 26
33. MISCELLANEOUS............................................. 28
34. ENTIRE AGREEMENT.......................................... 30
EXHIBITS
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EXHIBIT A - PREMISES
EXHIBIT B - EQUIPMENT SPACE
EXHIBIT C - BUILDINGS RULES AND REGULATIONS
EXHIBIT D - COMMENCEMENT LETTER
EXHIBIT E - HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
EXHIBIT F - TENANT OPTIONS
EXHIBIT G - SAMPLE LETTER OF CREDIT
EXHIBIT H - AGREEMENT REGARDING LENDER'S SECURITY INTEREST IN TENANT'S PERSONAL
PROPERTY
LEASE AGREEMENT
This Lease ("Lease") is made and entered into as of September 1, 1999, by
and between CARLYLE-CORE CHICAGO LLC, a Delaware limited liability company
("Landlord") and EQUINIX, INC., a Delaware corporation ("Tenant").
1. Basic Lease Information.
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(a) "Building" shall mean the building located at [*], Chicago, Illinois.
(b) "Rentable Square Footage of the Building" is estimated to be [*]
rentable square feet, subject to Landlord's Confirmation (defined
below).
(c) "Premises" shall mean the area shown on Exhibit A to this Lease. The
Premises consist of the entire fifth floor of the Building. The
"Rentable Square Footage of the Premises" is approximately [*]
Rentable Square Feet. As the Premises includes a floor in its
entirety, all corridors, elevator lobbies and restroom facilities
located on such full floor shall be considered part of the Premises.
Landlord and Tenant stipulate and agree that the Rentable Square
Footage of the Building and the Rentable Square Footage of the
Premises as stated above are estimates, subject to final measurement
by Landlord ("Landlord's Confirmation"). Such measurement shall be
performed in accordance with ANSI/BOMA Z65.1-1996. ("BOMA Standard").
As used herein "Rentable Square Feet", "Rentable Area" and/or
"Rentable Square Footage" shall be the amounts determined by
Landlord, based upon calculation of usable areas and rentable areas
in accordance with the BOMA Standard, as a result of Landlord's
Confirmation. Following Landlord's Confirmation (i) Landlord shall
deliver a copy of Landlord's Confirmation to Tenant for Tenant's
review and confirmation, and (ii) Landlord will set forth the final
measurements in a Commencement Letter in the form of Exhibit D
attached hereto.
(d) "Equipment Space" shall mean the Rooftop Equipment Space, Generator
Space and Electrical Space (as described in Article 6 herein) and
shown on Exhibit B to this Lease. The Rentable Square Footage of the
Equipment Space is estimated to be [*] Rentable Square Feet, subject
to Landlord's Confirmation.
(e) "Base Rent":
Annual Rate
Period Per Rentable Square Foot
------ ------------------------
Year 1 $[*]
Year 2 $[*]
Year 3 $[*]
Year 4 $[*]
Year 5 $[*]
Year 6 $[*]
Year 7 $[*]
Year 8 $[*]
Year 9 $[*]
Year 10 $[*]
Year 11 $[*]
Year 12 $[*]
Year 13 $[*]
Year 14 $[*]
Year 15 $[*]
Notwithstanding the foregoing, during the initial [*] ([*]) months following the
Rent Commencement Date, Base Rent for [*] ([*]) of the Rentable Square Footage
of the Premises (ie, [*] rentable square feet) shall be abated, provided Tenant
is not in default
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
hereunder beyond the giving of any applicable notices and the passage of any
applicable grace periods. If, at any time following the Rent Commencement Date,
Tenant is in monetary default hereunder (beyond the giving of applicable notice
and the passage of applicable grace periods) Landlord shall have the right, in
addition to any other rights or remedies provided under this Lease, to declare
immediately due and payable any Base Rent abated pursuant to the provisions of
the foregoing sentence.
(f) "Equipment Space Rent":
Annual Rate
Period Per Rentable Square Foot
------ ------------------------
Year 1 $[*]
Year 2 $[*]
Year 3 $[*]
Year 4 $[*]
Year 5 $[*]
Year 6 $[*]
Year 7 $[*]
Year 8 $[*]
Year 9 $[*]
Year 10 $[*]
Year 11 $[*]
Year 12 $[*]
Year 13 $[*]
Year 14 $[*]
Year 15 $[*]
(g) "Tenant's Pro Rata Share": The ratio (expressed as a percentage) that
the Rentable Area of the Premises bears to the Rentable Area of the
Building; said amount to be determined by Landlord's Confirmation.
(h) "Commencement Date": The date Landlord delivers possession of the
Premises to Tenant with the Landlord Work completed.
(i) "Rent Commencement Date": The date that is [*] ([*]) days from the
Commencement Date.
(j) "Term": A period commencing on the Commencement Date and expiring on
the date ("Expiration Date") that is one hundred eighty (180) months
(fifteen (15) years) from the Rent Commencement Date. The Commencement
Date is estimated to be [*].
(k) "Security Deposit": [*] Dollars ($[*]) in cash or, at Tenant's option,
in the form of an irrevocable letter of credit ("Letter of Credit").
(l) "Guarantor(s)": Not applicable.
(m) "Broker": Core Location Realty Associates of Chicago LLC, representing
Landlord.
(n) "Permitted Use": Installation, operation and maintenance of
telecommunication, switching and transmission equipment (including Co-
location as defined in Article 11, subject to the limitations set
forth in this Lease) as the primary use and associated general office
use required to support, monitor and maintain the equipment located
within the Premises or Equipment Space; the amount of office use shall
be subject to Landlord's prior written approval.
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(o) "Notice Addresses":
Tenant:
Notices shall be sent to Tenant at the following address:
Equinix, Inc.
901 Marshall Street, 2/nd/ Floor
Redwood City, California 94063
Attn: Mr. Art Chinn
On and after the Rent Commencement Date, a copy of all notices shall be
sent to Tenant at the Premises.
Landlord:
CARLYLE-CORE CHICAGO LLC
c/o Core Location Realty Associates of Chicago LLC
4520 East-West Highway, Suite 650
Bethesda, Maryland 20814
Attention: Mark Ezra
With a copy to:
Shartsis, Friese & Ginsburg LLP
One Maritime Plaza, 18/th/ Floor
San Francisco, California 94111
Attention: Jonathan M. Kennedy, Esq.
and
The Carlyle Group
1001 Pennsylvania Avenue
Suite 220 South
Washington, DC 20004
Attention: Gary Block
(p) "Rent Payment Address":
CARLYLE-CORE CHICAGO LLC
c/o Core Location Realty Associates of Chicago LLC
4520 East-West Highway, Suite 650
Bethesda, Maryland 20814
Attention: Management Agent
(q) "Business Day(s)" are Monday through Friday of each week, exclusive of
New Year's Day, Memorial Day, Independence Day, Labor Day,
Thanksgiving Day and Christmas Day and any other union-recognized
holidays (ie, days which labor unions serving Landlord recognize as
holidays) ("Holidays"). Landlord may reasonably designate additional
Holidays.
(r) "Landlord Work" shall mean the completion by Landlord of demolition,
pursuant to a demolition plan prepared by Landlord, of existing
partitions within the Premises as well as the demolition of existing
wood block floor covering, existing HVAC, existing steam and domestic
water (ie, excluding sprinkler systems), electrical and other pipes
and conduit, non-load bearing walls, and asbestos that is exposed
and/or friable (the Landlord Work shall not include the demolition of
masonry partitions, lighting, all vertical penetrations, power panels
and main ducts) and the delivery of the Premises in broom clean
condition.
(s) "Law(s)" means all applicable statutes, codes, ordinances, orders,
rules and regulations of any municipal or governmental entity.
(t) "Property" means the Building, the parking lot serving the Building
and the parcel(s) of land on which they are located and, at Landlord's
reasonable discretion, other improvements serving the Building
generally, if any, and the parcel(s) of land on which they are
located.
2. Lease Grant.
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(a) Premises. Landlord leases the Premises to Tenant and Tenant leases
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the Premises from Landlord, together with the right in common with
others to use any portions of the Property that are designated by
Landlord for the common use of tenants and others, such as sidewalks,
unreserved parking areas, common corridors, elevator foyers,
restrooms, vending areas and lobby areas (the "Common Areas").
(b) Equipment Space. Additionally, pursuant to the provisions of Article
---------------
6 below, Tenant shall have the right to place certain equipment in the
Equipment Space.
3. Term; Possession. The Term shall commence on the Commencement Date and
----------------
shall expire, if not sooner terminated pursuant to the provisions of this
Lease, on the Expiration Date. On the Commencement Date, the Premises and
Equipment Space are accepted by Tenant in "as is" condition and
configuration (subject to the completion of the Landlord Work). By taking
possession of the Premises and Equipment Space, Tenant agrees that the
Premises and Equipment Space are in good order and satisfactory condition,
and that there are no representations or warranties by Landlord regarding
the condition of the Premises, Equipment Space or the Building except as
may be expressly set forth herein. If Landlord is delayed in delivering
possession of the Premises and Equipment Space or any other space, Landlord
shall use reasonable efforts to obtain possession of the space, but no such
delay shall nullify this Lease or give rise to any claim for damages on the
part of Tenant. If Tenant takes possession of the Premises or Equipment
Space before the Commencement Date, such possession shall be subject to the
terms and conditions of this Lease except that, prior to the Rent
Commencement Date, Tenant will not be required to pay Rent hereunder.
Notwithstanding the foregoing, if the Commencement Date does not occur by
the date that is one hundred fifty (150) days following the mutual
execution and delivery of this Lease (the "Outside Delivery Date"), Tenant,
as its sole remedy, may terminate this Lease by giving Landlord written
notice of termination after the Outside Delivery Date. In such event, and
subject to the provisions set forth below in this Article 3, this Lease
shall be deemed null and void and of no further force and effect and
Landlord shall promptly refund any prepaid Rent and Security Deposit
previously advanced by Tenant under this Lease and the parties hereto shall
have no further responsibilities or obligations to each other with respect
to this Lease. Landlord and Tenant acknowledge and agree that the Outside
Delivery Date shall be postponed by the number of days the Commencement
Date is delayed due to events of Force Majeure (as defined herein).
Notwithstanding the foregoing to the contrary, if Tenant exercises its
right to terminate this Lease as set forth above but Landlord delivers the
Premises to Tenant in the condition required by this Lease within thirty
(30) days after the date of Tenant's delivery of Tenant's termination
notice, this Lease shall continue in full force and effect the same as if
Tenant had not delivered its termination notice, and Tenant's termination
notice will be null and void. Tenant's right to terminate as described
herein shall be null and void as of the Commencement Date.
4. Rent.
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(a) Payments. As consideration for this Lease, Tenant shall pay Landlord
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at the Rent Payment Address (or such other address as Landlord may
from time to time specify in writing as the Rent Payment Address),
without any setoff or deduction, the total amount of Base Rent,
Equipment Space Rent and Additional Rent due for the Term, commencing
as of the Rent Commencement Date. "Additional Rent" means all sums
(exclusive of Base Rent and Equipment Space Rent) that Tenant is
required to pay Landlord. Additional Rent, Base Rent and Equipment
Space Rent are sometimes collectively referred to as "Rent". Tenant
shall pay and be liable for all rental, sales and use taxes (but
excluding income taxes), if any, imposed upon or measured by Rent
under applicable Law. Base Rent, Equipment Space Rent and recurring
monthly charges of Additional Rent shall be due and payable in advance
on the first day of each calendar month without notice or demand,
provided that the installment of Base Rent (based upon the estimated
Rentable Area of the Premises described in Section 1(c) above) and
Equipment Space Rent for the first full calendar month following the
Rent Commencement Date shall be payable upon the execution of this
Lease by Tenant (such payment to
be calculated taking into account the abatement described in Section
1(e) above). All other items of Rent shall be due and payable by
Tenant on or before thirty (30) days after billing by Landlord. All
payments of Rent shall be by good and sufficient check or by other
means (such as automatic debit or electronic transfer) acceptable to
Landlord. If Tenant fails to pay any item or installment of Rent when
due, Tenant shall pay Landlord an administration fee equal to five
percent (5%) of the past due Rent; provided, that Tenant will be
allowed a grace period of five (5) days after notice from Landlord of
late payment for the first two (2) late payments in any calendar year
prior to the imposition of such administration fee. If the Term
commences on a day other than the first day of a calendar month or
terminates on a day other than the last day of a calendar month, the
Rent for the month shall be prorated based on the number of days in
such calendar month. Landlord's acceptance of less than the correct
amount of Rent shall be considered a payment on account of the
earliest Rent due. No endorsement or statement on a check or letter
accompanying a check or payment shall be considered an accord and
satisfaction, and Landlord may accept the check or payment without
prejudice to Landlord's right to recover the balance or pursue other
available remedies. Tenant's covenant to pay Rent is independent of
every other covenant in this Lease.
(b) Payment of Tenant's Pro Rata Share of Operating Expenses and Property
---------------------------------------------------------------------
Taxes.
------
(i) Generally. Commencing as of the Rent Commencement Date,
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Tenant shall pay as Additional Rent, Tenant's Pro Rata Share of
the total amount of Operating Expenses (defined below) and
Property Taxes (defined below) for each calendar year thereafter
during the Term. Landlord shall provide Tenant with a good faith
estimate of the total amount of Operating Expenses and Property
Taxes for each calendar year during the Term. On or before the
first day of each month, Tenant shall pay to Landlord a monthly
installment equal to one-twelfth of Tenant's Pro Rata Share of
Landlord's estimate of the total amount of Operating Expenses
and Property Taxes. If Landlord determines that its estimate was
incorrect, Landlord may provide Tenant with a revised estimate.
After its receipt of the revised estimate, Tenant's monthly
payments shall be based upon the revised estimate. If Landlord
does not provide Tenant with an estimate of the total amount of
Operating Expenses and Property Taxes by January 1 of a calendar
year, Tenant shall continue to pay monthly installments based on
the previous year's estimate until Landlord provides Tenant with
the new estimate. Upon delivery of the new estimate, an
adjustment shall be made for any month for which Tenant paid
monthly installments based on the previous year's estimate.
Tenant shall pay Landlord the amount of any underpayment within
thirty (30) days after receipt of the new estimate. Any
overpayment shall be refunded to Tenant within thirty (30) days
or credited against the next due future installment(s) of
Additional Rent.
(ii) Reconciliation Statement. As soon as is reasonably practical
------------------------
following the end of each calendar year, Landlord shall furnish
Tenant with a statement ("Reconciliation Statement") of the
actual amount of Operating Expenses and Property Taxes for the
prior calendar year and Tenant's Pro Rata Share of same. If the
amount of Operating Expenses and Property Taxes actually paid by
Tenant for the prior calendar year is more than the actual
amount of Operating Expenses and Property Taxes for the prior
calendar year, Landlord shall apply any overpayment by Tenant
against Additional Rent due or refund such amount within thirty
(30) days after the Reconciliation Statement is provided to
Tenant, provided if the Term expires before the determination of
the overpayment, Landlord shall refund any overpayment to Tenant
after first deducting the amount of Rent due. If the amount of
Operating Expenses and Property Taxes paid by Tenant for the
prior calendar year is less than the actual amount of Operating
Expenses and Property Taxes for such prior year, Tenant shall
pay Landlord, within thirty (30) days after its receipt of the
Reconciliation Statement of Operating Expenses and Property
Taxes, any underpayment for the prior calendar year. The
obligations of Tenant under this Section 4(b) shall survive the
expiration or sooner termination of the Term.
(iii) Audit.
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(A) Provided that Tenant is not in default under this Lease, as
of the date of Tenant's exercise of its audit rights,
within thirty (30) days after receipt of a Reconciliation
Statement ("Audit Period"), Tenant shall be entitled, upon
at least ten (10) days prior written notice to Landlord and
during normal business hours at Landlord's office, or such
other place as
Landlord shall designate, to cause a certified public
accountant ("CPA") to copy (at Tenant's expense), inspect,
examine and audit those books and records of Landlord
relating to the determination of Operating Expenses and
Property Taxes for the calendar year for which such
statement was prepared. The initial inspection of
Landlord's records may be conducted by a current employee
of Tenant, a recognized regional or national accounting
firm (but not a tenant of the Property) or such other
person designated by Tenant and reasonably acceptable to
Landlord. In connection therewith, Tenant acknowledges that
it shall be reasonable for Landlord to object to the
proposed use by Tenant of any persons engaged in the
business of auditing Landlord's books and records on a
contingent fee basis.
(B) If, after inspection and examination of such books and
records during the Audit Period, Tenant disputes the amount
of Operating Expenses or Property Taxes charged by
Landlord, Tenant shall have ten (10) days following the
date of completion of Tenant's audit ("Request Period") to
request an independent audit of such books and records,
such request to be made by written notice to Landlord
("Audit Request"), which notice shall specify with
particularity all disputed items and shall contain a true,
correct and complete copy of any report or summary prepared
by Tenant's initial auditor. The independent audit of the
books and records shall be conducted by a CPA acceptable to
both Landlord and Tenant. If, within ten (10) days after
Landlord's receipt of Tenant's notice requesting an audit,
Landlord and Tenant are unable to agree on the CPA to
conduct such audit, then Landlord shall designate a
nationally recognized accounting firm (other than
Landlord's then current accounting firm) to conduct such
audit. The audit shall be limited to the determination of
the proper amount of Operating Expenses and Property Taxes
payable by Tenant specified by Tenant as disputed items in
Tenant's Audit Request.
(C) If the audit discloses that the amount of such disputed
Operating Expenses and/or Property Taxes billed to Tenant
was incorrect, the appropriate party shall, within thirty
(30) days following the date of such determination, pay to
the other party the deficiency or overpayment, as
applicable. All costs and expenses of any audit shall be
paid by Tenant unless the audit shows that Landlord
overstated Operating Expenses and Property Taxes for the
subject calendar year by more than five percent (5%), in
which case Landlord shall pay all costs and expenses of the
audit.
(D) Tenant shall keep any information gained from any such
audit (including Tenant's initial review of Landlord's
books and records) confidential and shall not disclose, or
allow the disclosure of, any such information to any other
party except where Tenant is legally required to do so (or
in the case of litigation or where such disclosure occurs
as part of litigation between Landlord and Tenant), and
shall indemnify, defend, protect and hold Landlord harmless
from and against any and all loss, cost, damage or
liability incurred by Landlord arising out of Tenant's (or
Tenant's accountants', consultants' or employees') failure
to maintain such confidentiality.
(E) The exercise by Tenant of any audit rights hereunder shall
not relieve Tenant of its obligation to pay, prior to the
request for an inspection and examination of Landlord's
books and records or any audit, all sums due hereunder,
including, without limitation, any disputed Operating
Expenses and/or Property Taxes. If Tenant does not elect to
exercise its rights to audit during the Audit Period, or
does not elect to cause an independent audit of the books
and records during the Request Period, then Landlord's
Reconciliation Statement shall conclusively be deemed to be
correct, and Tenant shall be bound by Landlord's
determination.
(c) Operating Expenses Defined. "Operating Expenses" means all costs and
--------------------------
expenses incurred in each calendar year in connection with the
operation, ownership, management, maintenance and repair of the
Building and the Property, including, but not limited to:
(i) Labor costs, including, wages, salaries, social security and
employment taxes, medical and other types of insurance,
uniforms, training, and retirement and pension plans.
(ii) Management fees payable either to Landlord (if Landlord manages
the Building and Property) or to a third party (such management
fees not to exceed three percent (3%) of gross Building revenue
during the initial five (5) years of the Term, and four percent
(4%) of gross Building revenue thereafter provided that the
management fee shall only increase to four percent (4%) if such
level of management fee is, at the time, customary for buildings
in the Chicago, Illinois vicinity), as well as the cost,
including rent or imputed rent of equipping and maintaining a
management office (if applicable), accounting and bookkeeping
services, legal fees not attributable to leasing or collection
activity, and other administrative costs.
(iii) The cost of services, including amounts paid to service
providers and the rental and purchase cost of parts, supplies,
tools and equipment.
(iv) Premiums and commercially reasonable deductibles (ie, customary
for Buildings in the Chicago, Illinois vicinity) paid by
Landlord for insurance, including workers compensation, fire and
extended coverage, earthquake (if the owners of similar
buildings in the Chicago, Illinois vicinity at the time
customarily carry earthquake insurance on their buildings; and
provided that Tenant's Pro Rata Share of any individual
deductible payment under such earthquake insurance shall not
exceed $10,000.00), general liability, rental loss, elevator,
boiler and other insurance customarily carried from time to time
by owners of comparable buildings.
(v) Costs of electricity and charges for water, gas, steam and sewer
and other utilities, but excluding (a) those charges for which
Landlord is reimbursed by tenants and (b) the cost of
electricity provided to any tenant who is billed directly by the
applicable utility provider for the cost of such tenant's
electricity consumption.
(vi) The amortized cost of capital improvements made to the Property
which are: (A) performed primarily to reduce operating expense
costs or otherwise improve the operating efficiency of the
Property, (B) required to comply with any Laws that are enacted,
or first interpreted to apply to the Property, after the date of
this Lease, or (C) replacements of existing capital improvements
or equipment. The cost of capital improvements, together with
interest, shall be amortized by Landlord over such reasonable
period as Landlord may determine.
(d) Exclusions to Operating Expenses. Operating Expenses do not include:
--------------------------------
(i) the cost of capital improvements (except as set forth above);
(ii) depreciation;
(iii) interest (except as provided above for the amortization of
capital improvements);
(iv) principal and interest payments of mortgage and other non-
operating debts of Landlord;
(v) the cost of repairs or other work to the extent Landlord is
reimbursed by insurance or condemnation proceeds or is
reimbursed directly by any other tenant of the Building (ie,
not as an Operating Expense);
(vi) the cost of leasing space in the Building, including attorneys'
fees incurred in the negotiation of leases and the cost of
constructing improvements for tenants, as well as brokerage
commissions;
(vii) costs incurred in connection with the sale, financing or
refinancing of the Building;
(viii) organizational expenses associated with the creation and
operation of the entity which constitutes Landlord;
(ix) the cost of any services which are provided to other tenants in
the Building or the Property which are not also provided to
Tenant;
(x) executive salaries or salaries of service personnel to the
extent that such executives or service personnel perform
services other than in connection with the management,
operation, repair or maintenance of the Building or the
Property ;
(xi) any cost or expense incurred by reason of the remediation or
clean-up of any contamination of the Building or the Property
or the soils or ground water underlying the Building or the
Property by Hazardous Materials (defined in Article 32 below),
except to the extent such contamination results from Tenant's
(or Tenant's agents', contractors', invitees', or employees')
activities; and
(xii) overhead costs and profit increments paid to subsidiaries or
affiliates of Landlord for services (other than management fees
which are limited pursuant to Section 4(c)(ii) above) on or for
the Building or the Property, to the extent only that the cost
of such service materially exceeds competitive costs of such
services were not so rendered by a subsidiary or affiliate.
(e) Property Taxes Defined. "Property Taxes" shall mean: (1) all real
-----------------------
estate taxes and other assessments on the Building and/or Property,
including, but not limited to, assessments for special improvement
districts and building improvement districts, taxes and assessments
levied in substitution or supplementation in whole or in part of any
such taxes and assessments and the Property's share of any real estate
taxes and assessments under any reciprocal easement agreement, common
area agreement or similar agreement as to the Property; (2) all
personal property taxes for property that is owned by Landlord and
used in connection with the operation, maintenance and repair of the
Property; and (3) all costs and fees incurred in connection with
seeking reductions in any tax liabilities described in (1) and (2),
including, without limitation, any costs incurred by Landlord for
compliance, review and appeal of tax liabilities. Notwithstanding the
foregoing, Property Taxes shall not include any income, capital levy,
capital stock, gift, estate or inheritance tax, unless imposed as a
replacement for, or in lieu of Property Taxes.
(f) Gross Up. If the Building is not at least one hundred percent (100%)
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occupied or fully tax assessed during any calendar year, Operating
Expenses and Property Taxes shall be determined as if the Building had
been one hundred percent (100%) occupied and fully taxed assessed
during that calendar year. In addition, if any particular work or
service otherwise included in Operating Expenses is not furnished to a
tenant or occupant of the Building who is undertaking to perform such
work or service itself, Operating Expenses shall be deemed to be
increased by an amount equal to the additional Operating Expenses
which would have incurred if Landlord had furnished such work to such
tenant or occupant.
5. Compliance with Laws; Use.
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(a) Generally. The Premises shall be used only for the Permitted Use and
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for no other use whatsoever. The Equipment Space shall be used only
for the uses described in Article 6 below. Tenant shall not use or
permit the use of the Premises or Equipment Space for any purpose
which is illegal, dangerous to persons or property or which, in
Landlord's reasonable opinion, unreasonably disturbs or interferes
with the operations of any other tenants of the Building or in any way
interferes with the operation of the Building. Any equipment to be
installed within the Building, Premises or Equipment Space by Tenant
that, in Landlord's reasonable determination, may cause unsafe (in
Landlord's reasonable determination) vibrations which may be
transmitted to the structure of the Building or unreasonable levels of
noise shall be installed and maintained by Tenant, at Tenant's sole
cost and expense, in such a manner as Landlord may determine to be
necessary in order to eliminate such vibration or noise. Tenant shall
comply with all Laws, including the Americans with Disabilities Act,
regarding the operation of Tenant's business and the use, condition,
configuration and occupancy of the Premises and Equipment Space.
Tenant shall comply with the rules and regulations of the Building
attached as Exhibit C and such other reasonable rules and regulations
adopted by Landlord from time to time promptly following notice by
Landlord of the adoption of such rules and regulations. Tenant shall
also cause its agents, contractors, subcontractors, employees,
customers, and subtenants to comply with all rules and regulations.
Notwithstanding the foregoing to the contrary, Tenant shall not be
responsible for (a) making any alterations to the Building (excluding
any Leasehold Improvements [defined in Section 8(b) below]), except to
the extent such alterations are required due to
Tenant's particular use of the Premises or Equipment Space or
alterations made by or on behalf of Tenant to the Premises or
Equipment Space, or (b) any remediation of Hazardous Materials which
exist in the Premises prior to the Commencement Date.
(b) Labor Relations. Tenant shall not take any action which would violate
---------------
Landlord's labor contracts or which would cause a work stoppage,
picketing, labor disruption or dispute, or interfere with Landlord's
or any other tenant's or occupant's business or with the rights and
privileges of any person lawfully in the Building ("Labor
Disruption"). Tenant shall take the actions necessary to resolve the
Labor Disruption, and shall have pickets removed and, at the request
of Landlord, immediately terminate any work in the Premises that gave
rise to the Labor Disruption, until Landlord gives its written consent
for the work to resume. Tenant shall have no claim for damages against
Landlord or any of the Landlord Related Parties, nor shall the
Commencement Date be extended as a result of the above actions.
(c) Riser Use. Tenant, at Tenant's sole cost and expense, shall have
---------
the right in common with other tenants in the Building to install
Tenant's conduit (said conduits and the contents thereof being
referred to herein as "Cable") in the Building's horizontal and
vertical pathways, risers and ducts ("Risers") in an amount not to
exceed the following:
(i) for the purposes of installing and maintaining Tenant's fiber to
the Premises, up to eight (8) 4" conduits originating from two
diverse fiber entrances (for a total of sixteen (16) 4" conduits
to the Premises);
(ii) for the purposes of routing Tenant's Rooftop Equipment to the
Premises, up to four (4) 16" outside diameter conduits; and
(iii) for the purposes of routing Tenant's Electrical Equipment to the
Premises, a quantity reasonably required by Tenant and approved
by Landlord to accommodate the reasonable needs of such
Electrical Equipment.
All such work of installation will be carried out in compliance with Article 8;
provided that all work within the Risers shall be performed by a contractor
specified by Landlord or chosen from Landlord's list of approved contractors or
otherwise reasonably approved by Landlord; subject to the compliance of Tenant's
contractor, Carlson Associates, Inc. ("Carlson"), with the provisions of Section
5(b) above and Article 8 below, Landlord hereby approves Tenant's selection of
Carlson to perform work within the Risers pursuant to this Section 5(c).
6. Equipment Space. Tenant shall have the right to use the Equipment Space as
---------------
follows:
(a) Equipment Space Generally. Tenant, at Tenant's sole cost and
-------------------------
expense, may:
(i) utilize up to a total of [*] Rentable Square Feet on the Building
roof and Building penthouse (made up of approximately [*]
Rentable Square Feet on the Building roof and approximately [*]
Rentable Square Feet in the Building penthouse) in the areas
generally identified in Exhibit B ("Rooftop Equipment Space") to
install, maintain and operate Tenant's supplemental air
conditioning equipment and/or transmission equipment which Tenant
uses for purposes of providing telecommunication and data
services used in the operation of Tenant's internal business
activities ("Rooftop Equipment");
(ii) use:
(A) up to [*] Rentable Square Feet of space on the first floor
of the Building in the areas identified in Exhibit B for the
purpose of installing, maintaining and operating up to
twelve (12) generators; and
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
(B) an area to be located underground outside of the Building
(such location to be mutually agreed upon by Landlord and
Tenant, provided that Tenant's consent to Landlord's
proposed location will not be unreasonably withheld) to
accommodate up to a 15,000 gallon fuel storage tank (as of
the date of this Lease, Landlord is currently in the process
of procuring a variance to allow, in part, Tenant to place
underground fuel storage tanks in Landlord's desired
location outside of the Building; Landlord will use diligent
efforts to promptly procure such variance and shall keep
Tenant apprised of the anticipated schedule of such
procurement process, including any material delays or
changes. If Landlord fails to procure such variance on or
before December 31, 1999, and such failure will materially
delay the time period for Tenant to commence its business
operations in the Premises, Landlord will allow Tenant to
place such fuel storage in the lower level of the Building);
and
(iii) use reasonable quantity of space required by Tenant's equipment
("Tenant's Equipment") in the lower level of the Building
("Electrical Space") in a location to be mutually agreed upon by
Landlord and Tenant for Tenant's Electrical service as provided
for in Section 7(a)(iv).
The items in subsection (ii) (A) and (ii) (B) above shall be collectively
referred to as the "Generator". The areas utilized by the Generator are
referred to herein as "Generator Space". The Rooftop Equipment, Generator and
Electrical Equipment are collectively herein referred to as "Site Equipment".
As described in Article 1, the area of the Equipment Space shall be determined
by Landlord upon the final designation of the location of the Equipment Space,
and the area of the Equipment Space (as well as the Equipment Space Rent payable
hereunder) will be confirmed by the parties in the Commencement Letter issued by
Landlord. Tenant shall be required to install generators which are not smaller
than 1,500 KW each. Tenant shall have the right, at Tenant's expense, to
install up to two (2) 2" pipes from Tenant's fuel storage tank to each
individual generator actually installed by Tenant. Tenant shall be required to
route all electrical distribution from each generator to the Electrical Space.
Within sixty (60) days after the Commencement Date, Tenant may elect, by
irrevocable written notice to Landlord, to reduce the amount of the Equipment
Space; Tenant's notice will specify the amount and location of such reduced
Equipment Space. The area of such reduction shall be mutually agreed upon by
Landlord and Tenant and shall leave Landlord areas which, in Landlord's
reasonable opinion, may be used by Landlord or other tenants of the Building.
Additionally, at any time after the 24/th/ month following the Commencement
Date, Landlord may, by written notice to Tenant, reduce the Equipment Space by
removing therefrom any Equipment Space which Tenant has not, as of the date of
Landlord's notice, used (for example, if Tenant has as of the date of such
notice, installed ten (10) 1,500 KW generators, Landlord may reduce the
Generator Space as necessary to accommodate two generators); if Landlord so
elects to reduce the Equipment Space, the Equipment Space Rent shall be adjusted
accordingly. The exact location and configuration of Tenant's Site Equipment is
subject to Landlord's approval, in accordance with Article 8, and the Site
Equipment shall be installed in locations which, in Landlord's reasonable
opinion, may be used by Landlord or other tenants if Landlord elected to reduce
the Equipment Space as provided for above.
(b) [INTENTIONALLY OMITTED]
(c) Equipment Space Interference. If, any electrical, electromagnetic,
----------------------------
radio frequency or other interference of equipment existing prior to
Tenant's installation shall result from the operation of any Site
Equipment located in the Equipment Space, Landlord will notify Tenant,
and if such interference is not cured within one (1) business day
following delivery of such notice, Tenant agrees that Landlord may, at
Landlord's option, shut down Tenant's equipment upon eight (8) hours
prior notice to Tenant; provided, however, if an emergency situation
exists, which Landlord reasonably determines in its sole discretion to
be attributable to Tenant's Site Equipment, Landlord shall immediately
notify Tenant verbally, who shall act immediately to remedy the
emergency situation. Should Tenant fail to so remedy said emergency
situation, Landlord may then act to shut down Tenant's equipment.
Tenant shall indemnify Landlord and hold it harmless from all
expenses, costs, damages, losses, claims or other liabilities arising
out of said shutdown. Tenant agrees to cease operations (except for
intermittent testing on a schedule approved by Landlord) until the
interference has been corrected to the satisfaction of Landlord. If
such interference has not been corrected within thirty (30) days,
Landlord may, at its option, either terminate Tenant's right to use
the Equipment Space forthwith, or require that Tenant immediately
remove the specific item of Equipment Space causing such interference.
(d) Generator Use. Tenant agrees that will only run the Generator during
-------------
emergency circumstances and during customary testing hours as
determined by Landlord in its reasonable discretion.
(e) Subleasing/Use by Third Parties. Subject to Tenant's Co-location
-------------------------------
rights pursuant to Section 11(a) below, Tenant shall not be permitted
to sublicense, license or share its Equipment Space with third parties
without the prior written consent of Landlord, which consent Landlord
may withhold in its sole discretion. In addition, Tenant shall not use
the Rooftop Equipment Space to enable other providers of
Communications Services (defined below) to provide Communications
Services to any tenant, occupant or licensee of the Building or to any
tenant, occupant or licensee of any other building. Tenant may not
allow any other provider of telecommunications, video, data or related
services ("Communications Services") to locate any equipment in the
Rooftop Equipment Space for any purpose whatsoever.
7. Services.
--------
(a) Landlord's Obligation. Landlord will provide the following services:
---------------------
(i) Water to restrooms in Common Areas;
(ii) Janitorial service to the Common Areas on Business Days. Tenant
shall provide, and pay directly for, janitorial services to the
Premises pursuant to a janitorial contract with a provider
approved by Landlord (such approval not to be unreasonably
withheld);
(iii) Elevator service;
(iv) Electricity as follows: Following the Rent Commencement Date,
dedicated commercial utility power consisting of the
availability of two (2) 4,000 amp services, one out of each
utility vault in the lower level of the Building (Tenant, at
Tenant's expense, may provide for additional power). Tenant
shall be responsible for all costs and expenses required to
utilize such power including but not limited to bringing power
from service entrances, transient voltage surge suppressors,
meter cabinets and distribution to the Premises and Equipment
Space. Meter cabinets and paralleling switchgear for Tenant's
use will be placed by Tenant, at Tenant's expense, in the lower
level of the Building. Landlord's obligation to furnish
electrical and other utility services shall be subject to the
rules and regulations of the supplier of such electricity of
other utility services and the rules and regulations of any
municipal or other governmental authority regulating the
business of providing electricity and other utility services.
Notwithstanding the foregoing, and subject to the provisions of
Section 7(c)(ii) below, Landlord shall at all times be able to
shut down the utility services to the Premises or to the
Equipment Space in connection with any maintenance operation
conducted for the Building. Landlord agrees to use reasonable
efforts to cooperate with Tenant in obtaining temporary
alternative power during scheduled maintenance operations, but
shall have no obligation hereunder to provide alternative power
from emergency power sources. Prior to shutting down any
electrical power servicing Tenant's Site Equipment, Landlord
agrees to give Tenant reasonable prior written notice, except
in emergency situations.
(v) Security Service as follows: manned security 24-hours per day,
365 days per year. Landlord shall not be deemed to have
warranted the efficiency or efficacy of any security personnel,
services, procedures or equipment and Landlord shall not be
liable in any manner for the failure of such security
personnel, services, procedures or equipment to prevent or
control, or apprehend anyone suspected of personal injury,
property damage or any criminal conduct in, on or about the
Property.
(vi) Heating, ventilation and air conditioning in reasonable
quantities to Common Areas.
(vii) Upon Tenant's request, if available at Landlord's sole
discretion, hot or cold water for Tenant's heating and air-
conditioning use within the Premises.
(viii) Access. Tenant access to the Building and the Premises 24 hours
per day 365 days per year.
(ix) Fiber Optic Access. Access to the Building, to Tenant's fiber
access providers. All costs associated with such installation
shall be born by Tenant or Tenant's fiber access providers.
(b) Utilities Generally. Tenant, at Tenant's sole cost, shall cause
-------------------
electricity and other utilities serving the Premises and Equipment
Space to be separately metered (where possible) and Tenant will pay
the cost of all consumption and excess utility charges in the Premises
and/or the Equipment Space directly to the utility provider. If, at
any time, it is no longer feasible for Tenant to contract directly
with the utility provider for any services, Tenant shall reimburse
Landlord, within thirty (30) days on invoice therefore, for the actual
cost of the consumption of any such service and excess utility charges
in the Premises and/or the Equipment Space, as directly billed by the
utility provider as reasonably determined by Landlord.
(c) Interruptions; Failures.
-----------------------
(i) No failure to furnish, or any stoppage of, any services herein
resulting from any cause (including, without limitation, any
interruption in electrical service or other utilities to the
Premises and/or Equipment Space) shall make Landlord liable in
any respect for damages to any person, property or business, to
be construed as an eviction of Tenant, or entitle Tenant to any
abatement of Rent or other relief from any of Tenant's
obligations under this Lease. Additionally, Tenant expressly
acknowledges that Landlord reserves the right from time to time
upon reasonable advance notice to Tenant (except in the case of
emergency) to discontinue some or all of the services provided
by Landlord hereunder if necessary in Landlord's judgment to
effect any repair or maintenance obligations. Should any
malfunction of any systems or facilities occur within the
Property or should maintenance or alterations of such systems
or facilities become necessary, Landlord shall repair the same
promptly and with reasonable diligence, and Tenant shall in no
event have any claim for rebate, abatement of Rent, or damages
because of any malfunctions in or any interruptions of any
service to be provided however, regardless of the case. Tenant
hereby waives the provisions of any applicable existing or
future law, ordinance or governmental regulation permitting the
termination of this Lease due to an interruption, failure or
inability to provide any services. Notwithstanding the
foregoing, if: (a) Landlord ceases to furnish any service to
the Premises for a period in excess of five (5) consecutive
days after Tenant notifies Landlord (and any Mortgagee,
provided Tenant has been notified of the name and address of
such Mortgagee) of such cessation; (b) such cessation arises
out of the act or omission of Landlord and does not arise as a
result of an act or omission of Tenant; (c) such cessation is
not caused by a fire or other casualty (in which case Article
16 shall control) or by Force Majeure; (d) the restoration of
such service is reasonably within the control of Landlord; and
(e) as a result of such cessation, the Premises, or a material
portion thereof, is rendered untenantable (meaning that Tenant
is unable to use the Premises in the normal course of its
business) and Tenant in fact ceases to use the Premises, or
material portion thereof, then Tenant, as its sole remedy,
shall be entitled to receive an abatement of Base Rent payable
hereunder during the period beginning on the sixth (6th)
consecutive day of such cessation and ending on the day when
the service in question has been restored. In the event the
entire Premises has not been rendered untenantable by the
cessation in service, the amount of abatement that Tenant is
entitled to receive shall be prorated based upon the percentage
of the Premises so rendered untenantable and not used by
Tenant. The requirements set forth in clauses (b) and (d)
above, as well as the requirement that the cessation not be due
to Force Majeure as set forth in clause (c) above, shall not
apply to the extent Landlord receives rental interruption
insurance proceeds.
(ii) Notwithstanding any other provisions of this Lease to the
contrary, neither Landlord nor any of Landlord's agents,
employees or contractors shall unreasonably interfere with the
Site Equipment or Leasehold Improvements. Landlord agrees that,
except in the case of emergency (in which event Landlord will
use diligent efforts to provide advance written facsimile or
telephonic notice) prior to carrying out any construction,
maintenance or repair activities which are reasonably
anticipated to affect the Premises or the Site Equipment,
Landlord shall provide reasonable written or telephonic notice
to Tenant of the intent to carry out such work. Tenant shall
have the right, at Tenant's sole cost and expense and at
Tenant's own risk, to monitor and inspect such work, provided
that such actions do not unreasonably interfere with the
performance of such work on behalf of Landlord. Landlord and
Landlord's contractors, employees and agents shall exercise due
care in carrying out any such work so as to minimize
disturbance to Tenant. If any such work performed by Landlord
materially interferes with Tenant's ability to use the Premises
or Site Equipment for a period of three (3) consecutive
Business Days, Tenant may send notice to Landlord (and to any
Mortgagee,
provided Tenant has been notified of the name and address of
such Mortgagee) ("Interference Notice") specifying the nature
of the interference and the cause of such interference. If
Landlord does not commence to cure such interference within two
(2) Business Days following delivery of Tenant's Interference
Notice and use its best efforts to continue such cure, Tenant
may send a second Interference Notice to Landlord (and to any
Mortgagee, provided Tenant has been notified of the name and
address of such Mortgagee) stating that if Landlord does not
commence to cure such interference within two (2) additional
Business Days (and thereafter use its best efforts to continue
such cure), Tenant intends to use its self-help rights set
forth below. If Landlord (or Landlord's Mortgagee) fails to
commence the cure of such interference within three (3)
additional Business Days following delivery of such second
(2nd) Interference Notice, Tenant may effect the cure of such
interference, and Landlord shall reimburse Tenant for the
reasonable cost actually incurred by Tenant in performing such
work. To the fullest extent permitted under applicable law,
Tenant will indemnify, defend, protect and hold Landlord
harmless from and against any and all loss, cost, damage or
liability arising in any manner out of any damage to the
Project or to the equipment of other Building occupants or
interruption to the operation of the Project or other Building
occupants as a consequence of the performance of such work
performed by Tenant or Tenant's contractors, agents,
representatives or employees. The foregoing shall not be deemed
to prohibit Tenant from seeking injunctive relief to prevent or
remedy such interference.
8. Alterations.
-----------
(a) Initial Tenant Improvements. Prior to the Rent Commencement Date,
---------------------------
Landlord shall substantially complete the Landlord Work. Tenant, upon
the full and final execution and delivery of this Lease and all
prepaid Rent and the Security Deposit required hereunder, shall have
the right to perform initial alterations and improvements in the
Premises and the Equipment Space, as well as the installation of Site
Equipment and the installation of Cable in the Risers (the "Initial
Tenant Improvements").
(b) Notice and Plans Regarding Subsequent Alterations. Tenant shall not
-------------------------------------------------
make alterations, additions or improvements in the Premises, Equipment
Space or Risers following the completion of the Initial Tenant
Improvements (collectively referred to as "Alterations") (all
improvements to the Premises or Equipment Space, as well as Tenant's
Cable placed in the Risers, including without limitation, the Initial
Tenant Improvements and any Alterations, are referred to herein as
"Leasehold Improvements") without first obtaining the written consent
of Landlord in each instance, which consent shall not be unreasonably
withheld or delayed. Notwithstanding the foregoing, Landlord's consent
shall not be required for any Alteration that satisfies all of the
following criteria: 1) costs less than $25,000.00; 2) is of a cosmetic
nature such as painting, wallpapering, hanging pictures and installing
carpeting; and 3) will not affect the systems or structure of the
Building and does not require work to be performed inside the walls or
above the ceiling of the Premises; provided that even if consent is
not required, Tenant shall still comply with all the other provisions
of this Article 8 (including, without limitation, the obligation to
provide Landlord with advance notice of any such work). Landlord will
approve or disapprove any proposed Alteration within three (3) weeks
following Tenant's submission to Landlord of all information required
hereunder, together with a request for Landlord's consent.
(c) Procedures. Prior to installing any Leasehold Improvements, Tenant
----------
shall submit to Landlord for Landlord's approval, detailed plans and
specifications of the planned installation, the contractors to be
retained by Tenant to perform any Leasehold Improvements or Risers. In
no event will Landlord's approval of Tenant's plans be deemed a
representation that they comply with applicable laws, ordinances,
rules or regulations or that they will not cause interference with
other communications operations, such responsibility being solely
Tenant's. Landlord's approval of the general contractor to perform any
Leasehold Improvements shall not be unreasonably withheld, but will
not be considered to be unreasonably withheld if any such general
contractor (i) does not have trade references reasonably acceptable to
Landlord, (ii) does not maintain insurance (including, without
limitation, builder's risk insurance) as reasonably required by
Landlord, (iii) does not have the ability to be bonded for the work in
an amount of no less than one million dollars ($1,000,000.00), (iv)
does not provide current financial statements reasonably acceptable to
Landlord, (v) would violate Section 5(b) above or (vi) is not licensed
as a contractor in the State in which the Building is located. The
foregoing is not intended to be an exclusive list of the reasons why
Landlord may reasonably withhold its consent to a general contractor.
Landlord will have the right to require that Tenant procure
payment and performance bonds equal to one hundred ten percent (110%)
of the contract price in each instance. Prior to starting work, Tenant
shall furnish Landlord with copies of contracts; necessary permits and
approvals; evidence of contractor's and subcontractor's insurance in
amounts reasonably required by Landlord; and any security for
performance that is reasonably required by Landlord. Tenant will be
responsible to pay for all utilities consumed during construction. No
such work will commence unless and until Tenant has given Landlord all
necessary permits and approvals and sufficient notice and opportunity
to post appropriate notices of non-responsibility. All work shall be
constructed in a good and workmanlike manner using materials of a
quality that is at least equal to the quality reasonably designated by
Landlord as the minimum standard for the Building and shall not
interfere with any work being performed by Landlord or other tenants
in the Building. Upon completion of any Leasehold Improvements, Tenant
shall furnish Landlord with: (1) general contractor and architect's
completion affidavits, (2) full and final waivers of lien (other than
the lien of any Lender (as defined in Article 12 below), (3) receipted
bills covering all labor and materials expended and used, (4) as-built
plans of the Leasehold Improvements, and (5) the certification of
Tenant and its architect that the Leasehold Improvements have been
installed in a good and workmanlike manner in accordance with the
approved plans, and in accordance with applicable laws, codes and
ordinances. Landlord may designate reasonable rules, regulations and
procedures for the performance of work in the Building and, to the
extent reasonably necessary to avoid disruption to the occupants of
the Building, shall have the right to designate the time when any such
work may be performed. Tenant shall reimburse Landlord within thirty
(30) days after receipt of an invoice for reasonable sums paid by
Landlord for third party examination of Tenant's plans for any such
work. In addition, within thirty (30) days after receipt of an invoice
from Landlord, Tenant shall pay Landlord a fee for Landlord's
oversight and coordination of any Leasehold Improvements equal to
Landlord's reasonable cost of review of plans and construction
supervision. If Landlord determines that the Building has been damaged
during installation of the Leasehold Improvements, Landlord shall
notify Tenant and Tenant immediately shall repair the damage. If
Tenant fails to immediately repair the damage, Tenant shall pay to
Landlord upon demand the cost, as reasonably determined by Landlord,
of repairing any damage to the Building caused by such installation.
9. Maintenance.
-----------
(a) Tenant's Maintenance and Repair Obligations. Tenant, at Tenant's own
-------------------------------------------
expense, will keep the interior of the Premises, including but not
limited to all Tenant's Property, and any Equipment Space and Site
Equipment, including, without limitation, including all light
fixtures, all mechanical, electrical and plumbing facilities and
equipment, lamps, fans and any exhaust, fire suppression or air
conditioning equipment and systems, electrical motors and all other
appliances and equipment of every kind and nature located in the
Premises and/or Equipment Space in good order, repair and condition at
all times during the Term. In addition, Tenant, at Tenant's sole cost
and expense subject to the prior approval of Landlord, and within any
reasonable period of time specified by Landlord, will promptly and
adequately repair all damage to the Premises and/or Equipment Space
and replace or repair all damaged or broken fixtures and
appurtenances; provided however, that, at Landlord's option, if Tenant
fails to make such repairs within a reasonable time after written
request by Landlord, Landlord may, but need not, make such repairs and
replacements, and Tenant shall pay Landlord the cost thereof upon
being billed for same. Tenant shall also be responsible for all pest
control within the Premises and for all trash removal for the
Premises.
(b) Landlord's Maintenance Obligations. Landlord shall keep in good order
-----------------------------------
repair and condition (i) the Common Areas, (ii) the foundation and
subflooring of the Building and the structural condition of the roof,
and the exterior walls of the Building (but excluding the interior
surfaces of exterior walls and the interior and exterior of all
windows, doors, ceiling and plateglass, which shall be maintained and
repaired by Tenant), and (iii) the Building's elevators.
10. Entry by Landlord Landlord, its agents, contractors and representatives may
-----------------
enter the Premises to inspect or show the Premises (during the final nine
(9) months of the Term), make repairs, alterations or additions to the
Premises, and to conduct or facilitate repairs, alterations or additions to
any portion of the Building, including other tenants' premises. Except in
emergencies, Landlord shall provide Tenant with reasonable prior notice of
entry into the Premises, which may be given orally, will use reasonable
efforts to schedule any such entry so as to cooperate with Tenant's
schedule, and will allow Tenant to accompany Landlord during any such
entry. Entry by Landlord shall not constitute constructive eviction or
entitle Tenant to an abatement or reduction of Rent.
11. Assignment and Subletting.
-------------------------
(a) Generally. Except in connection with a Permitted Transfer (defined
---------
below), Tenant shall not assign, sublease, transfer or encumber any
interest in this Lease or allow any third party to use any portion of
the Premises (collectively or individually, a "Transfer") without the
prior written consent of Landlord, which consent shall not be
unreasonably withheld if Landlord does not elect to exercise its
termination rights below. It is agreed that Landlord's consent shall
not be considered unreasonably withheld if: (1) the proposed use is
not the Permitted Use; (2) the proposed transferee's financial
condition does not meet the criteria Landlord uses to select Building
tenants having similar leasehold obligations; (3) the proposed
transferee's business is not suitable for the Building considering the
business of the other tenants, or would result in a violation of
another tenant's rights; (4) the proposed transferee is a governmental
agency or a present or prospective occupant of the Building; (5)
Tenant is in default after the expiration of the notice and cure
periods in this Lease; or (6) any portion of the Building or Premises
would likely become subject to additional or different Laws as a
consequence of the proposed Transfer. Notwithstanding the foregoing,
Landlord will not withhold its consent solely because the proposed
subtenant or assignee is a present or prospective occupant of the
Building if (i) Landlord does not have space available for lease in
the Building that is sufficient to meet the space requirements of the
proposed subtenant or assignee, as reasonably determined by Landlord
or if (ii) the assignee or subtenant is a prospective occupant of the
Building who proposes to occupy less than [*] rentable square feet of
space. Notwithstanding the foregoing, so-called "co-location" (ie, the
leasing or licensing of a portion of the Premises or on an equipment,
equipment rack or services basis to third parties (as used herein,
"Co-location")) will not be considered a Transfer hereunder; provided,
that in the event greater than fifty percent (50%) of the Premises is
used for Co-location for a single third party (or for third parties
who are affiliated with each other and thus are, in effect, a single
third party, as reasonably determined by Landlord), then it will be
considered a Transfer and subject to the provisions of this Article.
Tenant shall not be entitled to receive monetary damages based upon a
claim that Landlord unreasonably withheld its consent to a proposed
Transfer and Tenant's sole remedy shall be an action to enforce any
such provision through specific performance or declaratory judgment.
Any attempted Transfer in violation of this Article shall, at
Landlord's option, be void. Consent by Landlord to one or more
Transfer(s) shall not operate as a waiver of Landlord's rights to
approve any subsequent Transfers. In no event shall any Transfer or
Permitted Transfer release or relieve Tenant from any obligation under
this Lease.
(b) Request; Landlord's Options. As part of its request for Landlord's
consent to a Transfer, Tenant shall provide Landlord with financial
statements (audited if available) for the proposed transferee, a
complete copy of the proposed assignment, sublease and other
contractual documents and such other information as Landlord may
reasonably request. Landlord shall, by written notice to Tenant within
twenty (20) days of its receipt of the required information and
documentation, either: (1) consent to the Transfer by the execution of
a consent agreement in a form reasonably designated by Landlord or
reasonably refuse to consent to the Transfer in writing; or (2) if the
proposed Transfer is an assignment of Tenant's interest in this Lease
(other than a Permitted Transfer) or is a sublease (other than a
Permitted Transfer) for a term (including any option or renewal terms
or any subsequently negotiated option or renewal terms) in excess of
five (5) years or which runs through substantially the remainder of
the Term, exercise the right to terminate this Lease with respect to
the portion of the Premises that Tenant is proposing to assign or
sublet, together with a pro rata share of the Equipment Space. Any
such termination described in clause (2) above, shall be effective on
the proposed effective date of the Transfer for which Tenant requested
consent. Tenant shall pay to Landlord, Landlord's actual costs
(including reasonable attorney's fees) incurred in Landlord's review
of any Permitted Transfer (defined below) or requested Transfer.
Notwithstanding the foregoing, if Landlord would be entitled, pursuant
to clause (2) above to terminate this Lease with respect to all or any
portion of the Premises (and the applicable pro rata share of the
Equipment Space), Tenant, prior to entering into such a Transfer,
shall have the right to advise Landlord (the "Prior Notice") of its
intention to enter into such Transfer. Such Prior Notice shall
describe the space Tenant intends to sublet or assign and the
effective date thereof. Landlord, within twenty (20) days after
receipt of the Prior Notice, shall have the right to terminate this
Lease with respect to the space that Tenant intends to sublet or
assign (inclusive of a pro rata share of the Equipment Space) as of
the effective date set forth in the Prior Notice. If Landlord fails to
* CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
exercise its right to terminate within twenty (20) days after the
Prior Notice, for the next six (6) months thereafter Landlord may not
elect to terminate in connection with a proposed subletting or
assignment of the space described in the Prior Notice.
(c) Excess Consideration. Tenant shall pay Landlord fifty percent (50%) of
--------------------
all rent and other consideration which Tenant receives as a result of
a Transfer that is in excess of the Rent payable to Landlord for the
portion of the Premises and Term covered by the Transfer, following
the recovery by Tenant of Tenant's reasonable costs of the following
costs incurred by Tenant in connection with the Transfer:
(i) commercially reasonable brokerage commissions;
(ii) reasonable attorneys' fees; and
(iii) tenant improvement costs incurred by Tenant in constructing
space to be occupied by the assignee or subtenant, as opposed to
improvements to be constructed in space in which Tenant shall
retain occupancy.
Tenant shall pay Landlord for Landlord's share of any excess within
thirty (30) days after Tenant's receipt of such excess consideration.
If Tenant is in Monetary Default (defined below), Landlord may require
that all sublease payments be made directly to Landlord, in which case
Tenant shall receive a credit against Rent in the amount of any
payments received (less Landlord's share of any excess).
(d) Transfer of Shares/Rights; Permitted Transfers. Except as provided
----------------------------------------------
below with respect to a Permitted Transfer, if Tenant is a
corporation, limited liability company, partnership, or similar
entity, and if the ownership of a majority of the voting shares/rights
of Tenant at any time changes for any reason (including but not
limited to a merger, consolidation or reorganization), such change of
ownership or control, shall constitute a Transfer. The foregoing shall
not apply so long as Tenant is an entity whose outstanding stock is
listed on a recognized security exchange, or if at least eighty
percent (80%) of its voting stock is owned by another entity, the
voting stock of which is so listed. Notwithstanding the foregoing to
the contrary, Tenant may assign its entire interest under this Lease
or sublet the Premises to a wholly owned corporation, partnership or
other legal entity or affiliate, subsidiary or parent of Tenant or to
any successor to Tenant by purchase, merger, consolidation or
reorganization (hereinafter, collectively, referred to as "Permitted
Transfer") without the consent of Landlord, provided: (i) Tenant is
not in default under this Lease; (ii) if such proposed transferee is a
successor to Tenant by purchase, merger, consolidation or
reorganization, (A) if Tenant does not survive such transaction as an
ongoing enterprise, the continuing or surviving entity shall own all
or substantially all of the assets of Tenant and shall have a net
worth which is at least equal to the greater of Tenant's net worth at
the date of this Lease or Tenant's net worth at the date of the
Transfer; and (B) if Tenant survives such transaction as an ongoing
enterprise, the continuing or surviving entity shall own all or
substantially all of the assets of Tenant at the Premises and the
surviving Tenant and the assignee or sublessee, in the aggregate,
shall have a net worth which is at least equal to the greater of
Tenant's net worth at the date of this Lease or Tenant's net worth at
the date of the Transfer; (iii) such proposed transferee operates the
business in the Premises for the Permitted Use and no other purpose;
and (iv) in no event shall any Permitted Transfer release or relieve
Tenant from any of its obligations under this Lease. Tenant shall give
Landlord written notice at least ten (10) days prior to the effective
date of such Permitted Transfer. As used herein: (a) "parent" shall
mean a company which owns a majority of Tenant's voting equity; (b)
"subsidiary" shall mean an entity wholly owned by Tenant or at least
fifty-one percent (51%) of whose voting equity is owned by Tenant; and
(c) "affiliate" shall mean an entity controlled, controlling or under
common control with Tenant. Notwithstanding the foregoing, sale of a
controlling interest in shares of equity of any affiliate or
subsidiary to which this Lease has been assigned or transferred other
than to another parent, subsidiary or affiliate of the original Tenant
named hereunder shall be deemed to be an assignment requiring the
consent of Landlord hereunder. Additionally, no public offering of
Tenant's stock or private placement of Tenant's stock shall be
considered a Transfer or included when aggregating a transfer of
voting shares or rights under this Section.
12. Liens.
-----
(a) Generally. Tenant shall not permit mechanic's or other liens to be
---------
placed upon the Property, Premises or Tenant's leasehold interest in
connection with any work or service done or purportedly done by or for
benefit of Tenant. If a lien is so placed, Tenant shall, within ten
(10) days of notice from Landlord of the filing of the lien, fully
discharge the lien by settling the claim which resulted in the lien or
by bonding or insuring over the lien in the manner prescribed by the
applicable lien Law. If Tenant fails to discharge the lien, then, in
addition to any other right or remedy of Landlord, Landlord may bond
or insure over the lien or otherwise discharge the lien. Tenant shall
reimburse Landlord for any amount paid by Landlord to bond or insure
over the lien or discharge the lien, including, without limitation,
reasonable attorneys' fees within thirty (30) days after receipt of an
invoice from Landlord.
(b) Subordination. Notwithstanding the provisions of Section 12(a) above,
-------------
provided Tenant is not in default hereunder, Landlord agrees to
subordinate any statutory or other lien for Rent to Tenant's lenders
("Lender"), if any, requiring a priority position under the following
circumstances:
(i) Lender is financing Tenant's purchase of the trade fixtures,
equipment or inventory in which Landlord is subordinating its
lien rights (the "Equipment");
(ii) Tenant shall furnish Landlord, for Landlord's prior written
consent and approval, with a complete schedule of the Equipment
financed pursuant to the terms hereof and a copy of any UCC-1 or
other financing statement which Lender and Tenant intend to file
with respect to such Equipment, which shall be updated, subject
to Landlord's prior written approval, in the event of any
changes;
(iii) Tenant shall be prohibited from financing any non-moveable
fixture or permanent improvement to the leasehold or Building
(provided that Landlord acknowledges that Tenant intends to
include, as part of the Equipment to be financed, some or all of
the following: supplemental HVAC units, generators, chillers,
cages and racks);
(iv) Tenant shall cause any and all Lenders to give Landlord notice
of any public or private sale by such Lender of Tenant's
Equipment;
(v) no public or private sale by any Lender shall be held on the
Premises or Property; and
(vi) Lender can enter the Premises or Property for purpose of removal
of the Equipment only if:
(A) permitted by the agreement between Lender and Tenant; and
(B) Lender agrees to restore or repair all damage to the
Premises, Equipment Space and Property caused by such
removal; and
(C) Lender gives Landlord notice in the event that any of
Tenant's moveable trade fixtures or Equipment are removed
from the Premises, Equipment Space and Property; and
(D) Lender indemnifies Landlord for any claim, liability or
expense (including reasonable attorney's fees) arising out
of or in connection with Lender's removal of the Equipment
and Lender's entry and activities upon the Premises,
Equipment Space and Property.
(vii) Landlord's subordination shall not be effective unless and until
a separate agreement is entered into between Lender and Landlord
respecting the foregoing items; Landlord agrees to enter into an
agreement in the form of Exhibit G attached hereto.
---------
13. Indemnity and Waiver of Claims.
------------------------------
(a) Tenant's Indemnity. Except to the extent caused by the negligence or
------------------
willful misconduct of Landlord or any Landlord Related Parties
(defined below), Tenant shall indemnify, defend and hold Landlord, its
trustees,
members, principals, beneficiaries, partners, officers, directors,
employees, Mortgagee(s) (defined in Article 26) and agents ("Landlord
Related Parties") harmless against and from all liabilities,
obligations, damages, penalties, claims, actions, costs, charges and
expenses, including, without limitation, reasonable attorneys' fees
and other professional fees, which may be imposed upon, incurred by or
asserted against Landlord or any of the Landlord Related Parties and
arising out of or in connection with any damage or injury occurring in
the Premises, Equipment Space, or Risers (provided such damage or
injury to Risers is the result of any act or omission of Tenant or
Tenant Related Parties) or any acts or omissions (including violations
of Law) of Tenant, its trustees, members, principals, beneficiaries,
partners, officers, directors, employees and agents ("Tenant Related
Parties") or any of Tenant's transferees, contractors or licensees.
(b) Exculpation. Landlord and the Landlord Related Parties shall not be
-----------
liable for, and Tenant waives, all claims for loss or damage to
Tenant's business or loss, theft or damage to Leasehold Improvements
or Tenant's Property or the property of any person claiming by,
through or under Tenant resulting from: (1) wind or weather; (2) the
failure of any sprinkler, heating or air-conditioning equipment, any
electric wiring or any gas, water or steam pipes; (3) the backing up
of any sewer pipe or downspout; (4) the bursting, leaking or running
of any tank, water closet, drain or other pipe; (5) water, snow or ice
upon or coming through the roof, skylight, stairs, doorways, windows,
walks or any other place upon or near the Building; (6) any act or
omission of any party other than Landlord or Landlord Related Parties;
and (7) any causes not reasonably within the control of Landlord.
Tenant shall insure itself against such losses under Article 14 below.
14. Insurance. Tenant shall carry and maintain the following insurance
---------
("Tenant's Insurance"), at its sole cost and expense: (1) Commercial
General Liability Insurance applicable to the Premises, the Equipment
Space, the portion of any Risers containing Tenant's Cable and their
respective appurtenances providing, on an occurrence basis, a minimum
combined single limit of $5,000,000.00; (2) All Risk Property Insurance,
including flood, written at replacement cost value and with a replacement
cost endorsement covering all of Tenant's trade fixtures, equipment,
furniture and other personal property within or serving the Premises, any
Leasehold Improvements, and Site Equipment as well as all Cable ("Tenant's
Property"); (3) Workers' Compensation Insurance as required by the state in
which the Premises is located and in amounts as may be required by
applicable statute; and (4) Employers Liability Coverage of at least
$1,000,000.00 per occurrence; and (5) such other amounts, types or levels
of insurance as Landlord may reasonable prescribe, including, without
limitation, increases in the levels of coverage described above. Any
company writing any of Tenant's Insurance shall have an A.M. Best rating of
not less than A-VIII. All Commercial General Liability Insurance policies
shall name Tenant as a named insured and Landlord (or any successor), any
property manager retained by Landlord to manage the Building, and their
respective members, principals, beneficiaries, partners, officers,
directors, employees, and agents, and other designees of Landlord as the
interest of such designees shall appear, as additional insureds. All
policies of Tenant's Insurance shall contain endorsements that the
insurer(s) shall give Landlord and its designees at least thirty (30) days'
advance written notice of any change, cancellation, termination or lapse of
insurance. Tenant shall provide Landlord with a certificate of insurance
evidencing Tenant's Insurance prior to the earlier to occur of the
Commencement Date or the date Tenant is provided with possession of the
Premises for any reason, and upon renewals at least fifteen (15) days prior
to the expiration of the insurance coverage. So long as the same is
available at commercially reasonable rates, Landlord shall maintain so
called All Risk property insurance on the Building at replacement cost
value, as reasonably estimated by Landlord, as well as commercially
reasonable levels of liability insurance coverage. Except as specifically
provided to the contrary, the limits of either party's insurance shall not
limit such party's liability under this Lease.
15. Subrogation. Notwithstanding anything in this Lease to the contrary,
-----------
Landlord and Tenant shall cause their respective insurance carriers to
waive any and all rights of recovery, claim, action or causes of action
against the other and their respective trustees, principals, beneficiaries,
partners, officers, directors, agents, and employees, for any loss or
damage that may occur to Landlord or Tenant or any party claiming by,
through or under Landlord or Tenant, as the case may be, with respect to
Tenant's Property, the Building, the Premises and the Equipment Space, any
additions or improvements to the foregoing, or any contents thereof,
including all rights of recovery, claims, actions or causes of action
arising out of the negligence of Landlord or any Landlord Related Parties
or the negligence of Tenant or any Tenant Related Parties, which loss or
damage is (or would have been, had the insurance required by this Lease
been carried) covered by insurance.
16. Casualty Damage.
---------------
(a) Landlord's Options. If all or any part of the Premises is damaged by
------------------
fire or other casualty, Tenant shall immediately notify Landlord in
writing. During any period of time that all or a material portion of
the Premises is rendered untenantable as a result of a fire or other
casualty, the Rent shall abate for the portion of the Premises that is
untenantable and not used by Tenant. Landlord shall have the right to
terminate this Lease if: (1) the Building shall be damaged so that, in
Landlord's reasonable judgment, substantial alteration (ie, work which
will take in excess of one hundred eighty (180) days) or
reconstruction of the Building shall be required (whether or not the
Premises has been damaged); (2) Landlord is not permitted by Law to
rebuild the Building in substantially the same form as existed before
the fire or casualty; (3) the Premises have been materially damaged
and there is less than one (1) year of the Term remaining on the date
of the casualty; or (4) a material uninsured loss to the Building
occurs (provided that Landlord has complied with Article 14 above
regarding insurance to be maintained by Landlord). Landlord may
exercise its right to terminate this Lease by notifying Tenant in
writing within one hundred twenty (120) days after the date of the
casualty. If Landlord does not terminate this Lease, Landlord shall
commence and proceed with reasonable diligence to repair and restore
the Building (excluding any Tenant's Property, which Tenant shall
repair). In no event shall Landlord be required to spend more than the
insurance proceeds received by Landlord. Landlord shall not be liable
for any loss or damage to Tenant's Property or to the business of
Tenant resulting in any way from the fire or other casualty or from
the repair and restoration of the damage. Landlord and Tenant hereby
waive the provisions of any Law relating to the matters addressed in
this Article, and agree that their respective rights for damage to or
destruction of the Premises shall be those specifically provided in
this Lease.
(b) Tenant's Option. If all or any portion of the Premises shall be made
---------------
untenantable by fire or other casualty, Landlord shall, with
reasonable promptness, cause an architect or general contractor
selected by Landlord to provide Landlord and Tenant with a written
estimate of the amount of time required to substantially complete the
repair and restoration of the Premises and make the Premises
tenantable again, using standard working methods ("Completion
Estimate"). If the Completion Estimate indicates that the Premises
cannot be made tenantable within two hundred ten (210) days from the
date the repair and restoration is started, then regardless of
anything in Section 16(a) above to the contrary, either party shall
have the right to terminate this Lease by giving written notice to the
other of such election within ten (10) days after receipt of the
Completion Estimate. Tenant, however, shall not have the right to
terminate this Lease if the fire or casualty was caused by the
negligence or intentional misconduct of Tenant, any Tenant Related
Parties or any of Tenant's transferees, contractors or licensees.
17. Condemnation. Either party may terminate this Lease if the whole or any
------------
material part of the Premises shall be taken or condemned for any public or
quasi-public use under Law, by eminent domain or private purchase in lieu
thereof (a "Taking"). Landlord shall also have the right to terminate this
Lease if there is a Taking of any portion of the Building or Property which
would leave the remainder of the Building unsuitable for use in a manner
comparable to the Building's use prior to the Taking. In order to exercise
its right to terminate the Lease, Landlord or Tenant, as the case may be,
must provide written notice of termination to the other within forty-five
(45) days after the terminating party first receives notice of the Taking.
Any such termination shall be effective as of the date the physical taking
of the Premises or the portion of the Building or Property occurs. If this
Lease is not terminated, the Rentable Square Footage of the Building, the
Rentable Square Footage of the Premises and Tenant's Pro Rata Share shall,
if applicable, be appropriately adjusted. In addition, Rent for any portion
of the Premises taken or condemned shall be abated during the unexpired
Term of this Lease effective when the physical taking of the portion of the
Premises occurs. All compensation awarded for a Taking, or sale proceeds,
shall be the property of Landlord, any right to receive compensation or
proceeds being expressly waived by Tenant. However, Tenant may file a
separate claim at its sole cost and expense for Tenant's Property and
Tenant's reasonable relocation expenses, provided the filing of the claim
does not diminish the award which would otherwise be receivable by
Landlord.
18. Security Deposit.
----------------
(a) Tenant's Security Deposit, which shall be delivered by Tenant to
Landlord, together with the first (1st) month's payment of Base Rent
and Equipment Space Rent concurrently with Tenant's delivery to
Landlord of this Lease as executed by Tenant, shall be held by
Landlord, without liability for interest, as security for the
performance of Tenant's obligations under this Lease. Landlord shall
not be required to keep the Security Deposit segregated from other
funds of Landlord. Tenant shall not assign or in any way encumber the
Security Deposit. Upon the occurrence of any default by Tenant (beyond
the giving of acceptable notice and
the passage of applicable grace periods), Landlord shall have the
right, without prejudice to any other remedy, to use the Security
Deposit, or portions thereof, to the extent necessary to pay any
arrearages in Rent, and any other damage, injury or expense. Following
any such application of all or any portion of the Security Deposit,
Tenant shall pay to Landlord, on demand, the amount so applied in
order to restore the Security Deposit to its original amount (or if
the Security Deposit is a Letter of Credit, Tenant may either deliver
cash, a replacement Letter of Credit, or an additional Letter of
Credit). Provided Tenant is not in default hereunder, Landlord will
return any unapplied portion of the Security Deposit to Tenant within
thirty (30) days following the later to occur of (i) the expiration of
the Term, and (ii) Tenant's vacancy of the Premises and Building in
accordance with the provisions of this Lease.
(b) If the Security Deposit is in the form of a Letter of Credit , the
Letter of Credit shall
(i) be in form and substance satisfactory to Landlord;
(ii) name Landlord as its beneficiary;
(iii) be drawn on an FDIC insured financial institution satisfactory
to the Landlord;
(iv) expressly allow Landlord to draw upon it:
(A) in the event that the Tenant is in default under the Lease
by delivering to the issuer of the Letter of Credit
written notice that Landlord is entitled to draw
thereunder pursuant to the terms of this Lease; or
(B) if Tenant, within sixty (60) days prior to expiration of
the Letter of Credit then held by Landlord, fails to
provide Landlord with a replacement Letter of Credit
meeting the requirements herein;
(v) expressly state that it will be honored by the issuer without
inquiry into the accuracy of any such notice or statement made
by Landlord;
(vi) expressly permit multiple or partial draws up to the stated
amount of the Letter of Credit;
(vii) expressly provide that it is transferable to any successor of
Landlord; and
(viii) expire no earlier than sixty (60) days after the Expiration
Date (alternatively, the Letter of Credit [and any renewals or
replacements thereof] may be for a term of not less than one
(1) year; in such event Tenant agrees that it shall from time
to time, as necessary, [whether as a result of a draw on the
Letter of Credit by Landlord pursuant to the terms hereof or as
a result of the expiration of the Letter of Credit then in
effect], renew or replace the original and any subsequent
Letter of Credit so that a Letter of Credit, in the amount
required hereunder, is in effect until a date which is at least
sixty (60) days after the Expiration Date. If Tenant fails to
furnish such renewal or replacement at least thirty (30) days
prior to the stated expiration date of the Letter of Credit
then held by Landlord, Landlord may draw upon such Letter of
Credit and hold the proceeds thereof [and such proceeds need
not be segregated] as a Security Deposit pursuant to the terms
of this Article 18).
(c) Any renewal of or replacement for the original or any subsequent
Letter of Credit shall meet the requirements for the original Letter
of Credit as set forth above, except that such replacement or renewal
shall be issued by a national bank satisfactory to Landlord at the
time of the issuance thereof. Landlord agrees that in the event of any
event which would give Landlord the right to draw upon the Letter of
Credit, Landlord shall only draw down such amount as Landlord
reasonably believes to be necessary to cure or remedy any default on
the part of Tenant and to reimburse Landlord for any costs, expenses
or liability incurred in connection with such default; notwithstanding
the foregoing, if the amount of any draw upon the Letter of Credit
exceeds the amount necessary to reimburse Landlord for such costs,
expenses or liability, any excess proceeds of any draw on the Letter
of Credit shall be held by Landlord as a Security Deposit pursuant to
the provisions of this Article 18.
19. Events of Default. Tenant shall be considered to be in default of this
-----------------
Lease upon the occurrence of any of the following events of default:
(a) Monetary Default. Tenant's failure to pay when due all or any portion
----------------
of the Rent ("Monetary Default"), five (5) days after written notice
to Tenant; provided, that Landlord shall be required to deliver any
such notice only twice during any twelve (12) month period, and any
subsequent failure to pay any Rent when due in any twelve (12) month
period following Landlord's delivery of written notice of Monetary
Default shall automatically be a default, without the necessity of
written notice from Landlord or a five (5) day grace period.
(b) Non-Monetary Default. Tenant's failure (other than a Monetary Default)
--------------------
to comply with any term, provision or covenant of this Lease, if the
failure is not cured within fifteen (15) days after written notice to
Tenant. However, if Tenant's failure to comply cannot reasonably be
cured within fifteen (15) days, Tenant shall be allowed additional
time (not to exceed sixty (60) days) as is reasonably necessary to
cure the failure so long as: (1) Tenant commences to cure the failure
within fifteen (15) days, and (2) Tenant diligently pursues a course
of action that will cure the failure and bring Tenant back into
compliance with the Lease. However, if Tenant's failure to comply
creates a hazardous condition, the failure must be cured immediately
upon notice to Tenant. In addition, if Landlord provides Tenant with
notice of Tenant's failure to comply with any particular term,
provision or covenant of the Lease on three (3) occasions during any
twelve (12) month period, Tenant's subsequent violation of such term,
provision or covenant shall, at Landlord's option, be an incurable
event of default by Tenant.
(c) Insolvency Matters. Tenant becomes insolvent, makes a transfer in
------------------
fraud of creditors, or files a petition in bankruptcy, or makes an
assignment for the benefit of creditors, or admits in writing its
inability to pay its debts when due.
(d) Taking of Leasehold Estate. The leasehold estate is taken by process
--------------------------
or operation of Law.
20. Remedies.
--------
(a) Generally. Upon any default, Landlord shall have the right without
---------
notice or demand (except as provided in Article 19) to pursue any of
its rights and remedies at Law or in equity, including any one or more
of the following remedies:
(i) Terminate this Lease, in which case Tenant shall immediately
surrender the Premises and Equipment Space to Landlord. If
Tenant fails to surrender the Premises and/or Equipment Space,
Landlord may, in compliance with applicable Law and without
prejudice to any other right or remedy, enter upon and take
possession of the Premises and/or Equipment Space and expel and
remove Tenant, Tenant's Property and any party occupying all or
any part of the Premises and/or Equipment Space. Tenant shall
pay Landlord on demand the amount of all past due Rent and other
losses and damages which Landlord may suffer as a result of
Tenant's default, whether by Landlord's inability to relet the
Premises and/or Equipment Space on satisfactory terms or
otherwise, including, without limitation, all Costs of Reletting
(defined below) and any deficiency that may arise from reletting
or the failure to relet the Premises and/or Equipment Space.
"Costs of Reletting" shall include all costs and expenses
incurred by Landlord in reletting or attempting to relet the
Premises and/or Equipment Space, including, without limitation,
reasonable legal fees, brokerage commissions, the cost of
alterations and the value of other concessions or allowances
granted to a new tenant.
(ii) Terminate Tenant's right to possession of the Premises and/or
Equipment Space and, in compliance with applicable Law, expel
and remove Tenant, Tenant's Property and any parties occupying
all or any part of the Premises and/or Equipment Space. Landlord
may (but shall not be obligated to) relet all or any part of the
Premises and/or Equipment Space, without notice to Tenant, for a
term that may be greater or less than the balance of the Term
and on such conditions (which may include concessions, free rent
and alterations of the Premises and/or Equipment Space) and for
such uses as Landlord in its absolute discretion shall
determine. Landlord may collect and receive all rents and other
income from the reletting. Tenant shall pay Landlord on demand
all past
due Rent, all Costs of Reletting and any deficiency arising from
the reletting or failure to relet the Premises and/or Equipment
Space. Landlord shall not be responsible or liable for the
failure to relet all or any part of the Premises and/or
Equipment Space or for the failure to collect any Rent. The re-
entry or taking of possession of the Premises and/or Equipment
Space shall not be construed as an election by Landlord to
terminate this Lease unless a written notice of termination is
given to Tenant.
(iii) In lieu of calculating damages under Sections 20(a)(i) or
20(a)(ii) above, Landlord may elect to receive as damages the
sum of (a) all Rent accrued through the date of termination of
this Lease or Tenant's right to possession, and (b) an amount
equal to the total Rent that Tenant would have been required to
pay for the remainder of the Term discounted to present value at
the Prime Rate (defined in Section 20(b) below) then in effect,
minus the then present fair rental value of the Premises for the
remainder of the Term, similarly discounted, after deducting all
anticipated Costs of Reletting.
(b) Remedies; Cumulative Interest. Unless expressly provided in this
-----------------------------
Lease, the repossession or re-entering of all or any part of the
Premises and/or Equipment Space shall not relieve Tenant of its
liabilities and obligations under the Lease. No right or remedy of
Landlord shall be exclusive of any other right or remedy. Each right
and remedy shall be cumulative and in addition to any other right and
remedy now or subsequently available to Landlord at Law or in equity.
If Landlord declares Tenant to be in default, Landlord shall be
entitled to receive interest on any unpaid item of Rent at an annual
rate equal to the Prime Rate plus four percent (4%). For purposes
hereof, the "Prime Rate" shall be the per annum interest rate publicly
announced as its prime or base rate by a federally insured bank
selected by Landlord in the state in which the Building is located.
Forbearance by Landlord to enforce one or more remedies shall not
constitute a waiver of any default.
(c) Mitigation. Landlord agrees to use reasonable efforts to mitigate
----------
damages, provided that such reasonable efforts shall not require
Landlord to relet the Premises or Equipment Space in preference to any
other space in the Building or to relet the Premises or Equipment
Space to any party that Landlord could reasonably reject as a
transferee pursuant to Article 11 hereof.
21. Limitation of Liability; Landlord's Transfer. Notwithstanding anything to
--------------------------------------------
the contrary contained in this Lease, the liability of Landlord (and of any
successor Landlord) to Tenant shall be limited to the equity interest of
Landlord in the Building. Tenant shall look solely to Landlord's equity
interest in the Building for the recovery of any judgment or award against
Landlord. Neither Landlord nor any Landlord Related Party shall be
personally liable for any judgment or deficiency. Before filing suit for an
alleged default by Landlord, Tenant shall give Landlord and the
Mortgagee(s) (defined in Article 26 below) whom Tenant has been notified
hold Mortgages (defined in Article 26 below) on the Property, Building,
Premises or Equipment Space, notice and reasonable time to cure the alleged
default. Landlord shall have the right to transfer and assign all of its
rights and obligations under this Lease and in the Building and/or Property
referred to herein, and upon such transfer Landlord shall be released from
any further obligations hereunder, and Tenant agrees to look solely to the
successor in interest of Landlord for the performance of such obligations.
22. No Waiver. Either party's failure to declare a default immediately upon
---------
its occurrence, or delay in taking action for a default shall not
constitute a waiver of the default. Either party's failure to enforce its
rights for a default shall not constitute a waiver of its rights regarding
any subsequent default. Receipt by Landlord of Tenant's keys to the
Premises shall not constitute an acceptance or surrender of the Premises.
23. Quiet Enjoyment. Tenant shall, and may peacefully have, hold and enjoy the
---------------
Premises and Equipment Space, subject to the terms of this Lease, provided
Tenant pays the Rent and fully performs all of its covenants and
agreements. This covenant and all other covenants of Landlord shall be
binding upon Landlord and its successors only during its or their
respective periods of ownership of the Building, and shall not be a
personal covenant of Landlord or the Landlord Related Parties.
24. Relocation. [INTENTIONALLY OMITTED]
----------
25. Holding Over. If Tenant fails to surrender the Premises and Equipment
------------
Space at the expiration or earlier termination of this Lease, occupancy of
the Premises and/or Equipment Space after the termination or expiration
shall be that of a tenancy at sufferance. Tenant's occupancy of the
Premises and/or Equipment Space during the holdover shall be subject to all
the terms and provisions of this Lease and Tenant shall pay an amount (on a
per month basis without reduction for partial months during the holdover)
equal to one hundred fifty percent (150%) of the Rent due for the period
immediately preceding the holdover. No holdover by Tenant or payment by
Tenant after the expiration or early termination of this Lease shall be
construed to extend the Term or prevent Landlord from immediate recovery of
possession of the Premises and/or Equipment Space by summary proceedings or
otherwise. In addition to the payment of the amounts provided above, Tenant
shall be liable to Landlord for all damages, including, without limitation,
consequential damages, that Landlord suffers from the holdover.
26. Subordination to Mortgages; Estoppel Certificate. Tenant accepts this
------------------------------------------------
Lease subject and subordinate to any mortgage(s), deed(s) of trust, ground
lease(s) or other lien(s) now or subsequently arising upon the Building or
the Property, and to renewals, modifications, refinancings and extensions
thereof (collectively referred to as a "Mortgage"). The party having the
benefit of a Mortgage shall be referred to as a "Mortgagee". Upon request
from a Mortgagee, Tenant shall execute a commercially reasonable
subordination agreement in favor of the Mortgagee. In lieu of having the
Mortgage be superior to this Lease, a Mortgagee shall have the right at any
time to subordinate its Mortgage to this Lease. If requested by a
successor-in-interest to all or a part of Landlord's interest in the Lease,
Tenant shall, without charge, attorn to the successor-in-interest. Landlord
and Tenant shall each, within ten (10) days after receipt of a written
request from the other, execute and deliver an estoppel certificate to
those parties as are reasonably requested by the other (including a
Mortgagee or prospective purchaser). The estoppel certificate shall include
a statement certifying that this Lease is unmodified (except as identified
in the estoppel certificate) and in full force and effect, describing the
dates to which Rent and other charges have been paid, representing that, to
such party's actual knowledge, there is no default (or stating the nature
of the alleged default) and indicating other matters with respect to the
Lease that may reasonably be requested. Tenant agrees to modify this Lease
as reasonably requested by any Mortgagee, provided such modifications do
not materially impair Tenant's rights or increase Tenant's obligations
under the Lease. Notwithstanding the foregoing, upon written request by
Tenant, Landlord will use reasonable efforts to obtain a non-disturbance,
subordination and attornment agreement from Landlord's then current-
Mortgagee on such Mortgagee's then current standard form of agreement.
"Reasonable efforts" of Landlord shall not require Landlord to incur any
cost, expense or liability to obtain such agreement, it being agreed that
Tenant shall be responsible for any fee or review costs charged by
Mortgagee. Upon request of Landlord, Tenant will execute the Mortgagee's
form of non-disturbance, subordination and attornment agreement (subject to
Tenant's approval, which will not be unreasonably withheld, conditioned or
delayed) and return the same to Landlord for execution by the Mortgagee.
Landlord's failure to obtain a non-disturbance, subordination and
attornment agreement for Tenant shall have no effect on the rights,
obligations and liabilities of Landlord and Tenant or be considered to be a
default by Landlord hereunder but in the event that Landlord fails to
procure such agreement from Landlord's Mortgagee, Tenant will not be
obligated to subordinate its interest in this Lease to the lien of the
Mortgagee in question. As of the date of this Lease, Landlord represents to
Tenant that there is no Mortgage encumbering the Building or the Property.
27. Attorneys' Fees. If either party institutes a suit against the other for
---------------
violation of or to enforce any covenant or condition of this Lease, or if
either party intervenes in any suit in which the other is a party to
enforce or protect its interest or rights, the prevailing party shall be
entitled to all of its costs and expenses, including, without limitation,
reasonable attorneys' fees.
28. Notices. If a demand, request, approval, consent or notice (collectively
-------
referred to as a "Notice") shall or may be given to either party by the
other, the Notice shall be in writing and delivered by hand or sent by
registered or certified mail with return receipt requested, or sent by
overnight or same day courier service at the party's respective Notice
Address(es) set forth in Article 1, except that if Tenant has vacated the
Premises (or if the Notice Address for Tenant is other than the Premises,
and Tenant has vacated such address) without providing Landlord a new
Notice Address, Landlord may serve Notice in any manner described in this
Article or in any other manner permitted by Law. Notice shall be deemed to
have been received or given on the earlier to occur of (i) actual delivery,
or the date on which delivery is refused, or (ii) if Tenant has vacated the
Premises or the other Notice Address of Tenant without providing a new
Notice Address, three (3) days after Notice is deposited in the U.S. mail
or with a courier service in the manner described above. Either party may,
at any time, change its Notice Address by giving the other party written
Notice of the new address in the manner described in this Article.
29. Excepted Rights. This Lease does not grant any rights to light or air over
---------------
or about the Building. Except as expressly set forth in this Lease,
Landlord excepts and reserves exclusive to itself the use of: (1) roofs,
(2) telephone, electrical and janitorial closets, (3) equipment rooms, (4)
rights to the land and improvements below the floor of the Premises, (5)
the improvements and air rights above the Premises, (6) the improvements
and air rights outside the demising walls of the Premises, and (7) the
areas within the Premises used for the installation of utility lines and
other installations serving all occupants of the Building. Landlord has the
right to change the Building's name or (if required by governmental
authority) address. Landlord also has the right to make such other changes
to the Property and Building as Landlord deems appropriate (including the
right to add additional floors to the Building or to reduce the size of the
Building), provided the changes do not materially affect Tenant's ability
to use the Premises or the Equipment Space. Landlord shall also have the
right (but not the obligation) to temporarily close the Building if
Landlord reasonably determines that there is an imminent danger of
significant damage to the Building or of personal injury to Landlord's
employees or the occupants of the Building. The circumstances under which
Landlord may temporarily close the Building shall include, without
limitation, electrical interruptions, hurricanes and civil disturbances. A
closure of the Building under such circumstances shall not constitute a
constructive eviction nor entitle Tenant to an abatement or reduction of
Rent. Landlord reserves the right to temporarily reduce Tenant's allocation
of parking spaces as required during modifications to the Property.
30. Surrender of Premises. At the expiration or earlier termination of this
---------------------
Lease or Tenant's right of possession, Tenant shall remove Tenant's
Property from the Premises, Equipment Space and Risers, and quit and
surrender the Premises, Equipment Space and the Risers (using Landlord's
specified contractor to perform any such work affecting the Risers) to
Landlord, broom clean, and in good order, condition and repair and in
compliance with all applicable laws, ordinary wear and tear excepted; any
such work will be performed in accordance with Article 8 above. If Tenant
fails to so remove any of Tenant's Property prior to the termination of
this Lease or of Tenant's right to possession, Landlord, at Tenant's sole
cost and expense, shall be entitled (but not obligated) to remove and store
Tenant's Property, Tenant shall pay Landlord, upon demand, the expenses and
storage charges incurred for Tenant's Property. Landlord shall not be
responsible for the value, preservation or safekeeping of Tenant's
Property. In addition, if Tenant fails to remove Tenant's Property from the
Premises or storage, as the case may be, within thirty (30) days after
written Notice, Landlord may deem all or any part of Tenant's Property to
be abandoned, and title to Tenant's Property shall be deemed to be
immediately vested in Landlord.
31. Parking. Tenant shall be allowed in common with all other Building
-------
occupants to use the parking area associated with the Building for Tenant's
parking requirements up to fifteen (15) spaces. Tenant shall pay Landlord
as Additional Rent hereunder, the monthly parking rates as established by
Landlord. Tenant shall not exceed its allocation of parking spaces as
described herein.
32. Environmental Matters/Hazardous Materials:
-----------------------------------------
(a) Hazardous Materials Disclosure Certificate: Prior to executing this
------------------------------------------
Lease, Tenant has completed, executed and delivered to Landlord
Tenant's initial Hazardous Materials Disclosure Certificate (the
"Initial HazMat Certificate"), a copy of which is attached hereto as
Exhibit E and incorporated herein by this reference. Tenant covenants,
represents and warrants to Landlord that, to the best of Tenant's
knowledge after due inquiry, the information on the Initial HazMat
Certificate is true and correct and accurately describes the use(s) of
Hazardous Materials which will be made and/or used on the Premises or
the Equipment Space by Tenant. Commencing with the date which is one
year from the Commencement Date, and continuing every year thereafter
after Landlord's written request, Tenant will complete, execute, and
deliver to Landlord, a Hazardous Materials Disclosure Certificate (the
"HazMat Certificate") describing Tenant's present use of Hazardous
Materials on the Premises or the Equipment Space, and any other
reasonably necessary documents as requested by Landlord. The HazMat
Certificate required hereunder shall be in substantially the form as
that which is attached hereto as Exhibit E.
(b) Definition of Hazardous Materials: As used in this Lease, the term
---------------------------------
Hazardous Materials shall mean and include (i) any hazardous or toxic
wastes, materials or substances, and other pollutants or contaminants,
which are or become regulated by any Environmental Laws; (ii)
petroleum, petroleum by products, gasoline, diesel fuel, crude oil or
any fraction thereof; (iii) asbestos and asbestos containing material,
in any form, whether friable or non-friable; (iv) polychlorinated
biphenyls; (v) radioactive materials; (vi) lead and lead-containing
materials; (vii) any other material, waste or substance displaying
toxic, reactive, ignitable or corrosive characteristics, as all such
terms are used in their broadest sense, and are defined or become
defined by any Environmental Law (defined below); or (h) any materials
which cause or threatens to cause a nuisance upon or waste to any
portion of the Premises, Equipment Space, the Building, the Property
or any surrounding property; or poses or threatens to pose a hazard to
the health and safety of persons on the Premises, Equipment Space,
Building, the Property or any surrounding property.
(c) Prohibition; Environmental Laws: Except for, and to the extent of, the
-------------------------------
Hazardous Materials specified in the Initial HazMat Certificate,
Tenant shall not be entitled to use nor store any Hazardous Materials
on, in, or about the Premises, Equipment Space, the Building, the
Property, or any portion of the foregoing, without, in each instance,
obtaining Landlord's prior written consent thereto. If Landlord
consents to any such usage or storage, then Tenant shall be permitted
to use and/or store only those Hazardous Materials that are necessary
for Tenant's business and to the extent disclosed in the HazMat
Certificate and as expressly approved by Landlord in writing, provided
that such usage and storage is only to the extent of the quantities of
Hazardous Materials as specified in the then applicable HazMat
Certificate as expressly approved by Landlord and provided further
that such usage and storage is in full compliance with any and all
local, state and federal environmental, health and/or safety-related
laws, statutes, orders, standards, courts' decisions, ordinances,
rules and regulations (as interpreted by judicial and administrative
decisions), decrees, directives, guidelines, permits or permit
conditions, currently existing and as amended, enacted, issued or
adopted in the future which are or become applicable to Tenant or all
or any portion of the Premises (collectively, the "Environmental
Laws"). Tenant agrees that any changes to the type and/or quantities
of Hazardous Materials specified in the most recent HazMat Certificate
may be implemented only with the prior written consent of Landlord,
which consent may be given or withheld in Landlord's reasonable
discretion. Landlord shall have the right at all times during the
Term, upon reasonable advance notice to Tenant (except in the case of
emergency) to (i) inspect the Premises and Equipment Space, (ii)
conduct tests and investigations to determine whether Tenant is in
compliance with the provisions of this Article 32, and (iii) request
lists of all Hazardous Materials used, stored or otherwise located on,
under or about the Building, Premises, Equipment Space, and the
Property. The cost of all such inspections, tests and investigations
shall be proportionately borne by Tenant commensurate with the extent
of Hazardous Materials revealed by any such inspection, test or
investigation to be present in, on or about the Premises, Equipment
Space, Building or Property arising from or related to the intentional
or negligent acts or omissions of Tenant or any of Tenant's employees,
agents, contractors or representatives and all other costs and
expenses shall be borne by parties other than Tenant. However, in the
event any such inspection, test or investigation reveals that there
are not any Hazardous Materials present in, on or about the Premises,
Building, Equipment Space or Property arising from or related to the
intentional or negligent acts or omissions of Tenant or Tenant's
employees, agents, contractors or representatives then Tenant shall
not be responsible for any of the cost of such inspections, tests and
investigations. The aforementioned rights granted herein to Landlord
and its representatives shall not create (a) a duty on Landlord's part
to inspect, test, investigate, monitor or otherwise observe the
Premises, Building, Equipment Space, Property or the activities of
Tenant and Tenant's employees, agents, contractors or representatives
or invitees with respect to Hazardous Materials, including without
limitation, Tenant's operation, use and any remediation related
thereto, or (b) liability on the part of Landlord and its
representatives for Tenant's use, storage, disposal or remediation of
Hazardous Materials, it being understood that Tenant shall be solely
responsible for all liability in connection therewith.
(d) Tenant's Environmental Obligations: Tenant shall give to Landlord
----------------------------------
immediate verbal and follow-up written Notice of any spills, releases,
discharges, disposals, emissions, migrations, removals or
transportation of Hazardous Materials on, under or about the Premises,
Equipment Space, Building or Property. Tenant, at its sole cost and
expense, covenants and warrants to promptly investigate, clean up,
remove, restore and otherwise remediate (including, without
limitation, preparation of any feasibility studies or reports and the
performance of any and all closures) any spill, release, discharge,
disposal, emission, migration or transportation of Hazardous Materials
arising from or related to the intentional or negligent acts or
omissions of Tenant or Tenant's employees, agents, contractors or
representatives such that the affected portions of the Premises,
Equipment Space, Building, Property and any adjacent property are
returned to the condition existing prior to the appearance of such
Hazardous Materials. Any such investigation, clean up, removal,
restoration and other remediation shall only be performed after Tenant
has obtained Landlord's prior written consent, which consent shall not
be unreasonably withheld so long as such actions would not potentially
have a material adverse long-term or short-term effect on any portion
of the Premises, Equipment Space, the Building, or the Property.
Notwithstanding the foregoing, Tenant shall be entitled to respond
immediately to an emergency without first obtaining Landlord's prior
written consent. Tenant, at its sole cost and
expense, shall conduct and perform, or cause to be conducted and
performed, all closures as required by any Environmental Laws or any
agencies or other governmental authorities having jurisdiction
thereof. If Tenant fails to so promptly investigate, clean up, remove,
restore, provide closure or otherwise so remediate, Landlord may, but
without obligation to do so, take any and all steps necessary to
rectify the same and Tenant shall promptly reimburse Landlord, upon
demand, for all costs and expenses to Landlord of performing
investigation, clean up, removal, restoration, closure and remediation
work. All such work undertaken by Tenant, as required herein, shall be
performed in such a manner so as to enable Landlord to make full
economic use of the Premises, Equipment Space, the Building and
Property, and after the satisfactory completion of such work.
(e) Environmental Indemnity: In addition to Tenant's obligations as set
-----------------------
forth hereinabove, to the fullest extent permitted under applicable
law, Tenant agrees to, and shall, protect, indemnify, defend (with
counsel reasonably acceptable to Landlord) and hold Landlord and,
Landlord's Related Parties harmless from and against any and all
claims, judgments, damages, penalties, fines, liabilities, losses
(including, without limitation, diminution in value of any portion of
the Premises, Equipment Space, the Building, the Property, damages for
the loss of or restriction on the use of rentable or usable space, and
from any adverse impact of Landlord's marketing of any space within
the Premises, Equipment Space, Building and/or Property), suits,
administrative proceedings and costs (including, but not limited to,
attorneys' and consultant fees and court costs) arising at any time
during or after the Term of this Lease in connection with or related
to, directly or indirectly, the use, presence, transportation,
storage, disposal, migration, removal, spill, release or discharge of
Hazardous Materials on, in or about any portion of the Premises,
Equipment Space, the Building, or the Property as a result (directly
or indirectly) and to the extent of the acts or omissions of Tenant or
any of Tenant's employees, agents, invitees, contractors or
representatives. Neither the written consent of Landlord to the
presence, use or storage of Hazardous Materials in, on, under or about
any portion of the Premises, Equipment Space, the Building, and/or the
Property, nor the strict compliance by Tenant with all Environmental
Laws shall excuse Tenant and Tenant's officers and directors from its
obligations of indemnification pursuant hereto. Tenant shall not be
relieved of its indemnification obligations under the provisions of
this Section 32(e) due to Landlord's status as either an "owner" or
"operator" under any Environmental Laws.
(f) Survival: Tenant's obligations and liabilities pursuant to the
--------
provisions of this Article 32 shall survive the expiration or earlier
termination of this Lease. If it is determined by Landlord that the
condition of all or any portion of the Premises, Equipment Space, the
Building, and/or the Property is not in compliance with the provisions
of this Lease with respect to Hazardous Materials, including without
limitation all Environmental Laws at the expiration or earlier
termination of this Lease, then in Landlord's sole discretion,
Landlord may require Tenant to hold over possession of the Premises
and/or Equipment Space until Tenant can surrender the Premises and/or
Equipment Space to Landlord in the condition in which the Premises
and/or Equipment Space existed as of the Commencement Date and prior
to the appearance of such Hazardous Materials except for reasonable
wear and tear, including without limitation, the conduct or
performance of any closures as required by any Environmental Laws. For
purposes hereof, the term "reasonable wear and tear" shall not include
any deterioration in the condition or diminution of the value of any
portion of the Premises, Equipment Space, the Building, and/or the
Property in any manner whatsoever related to directly, or indirectly,
Hazardous Materials. Any such holdover by Tenant will be with
Landlord's consent, will not be terminable by Tenant in any event or
circumstance and will otherwise be subject to the provisions of this
Lease.
33. Miscellaneous.
-------------
(a) Governing Law. This Lease and the rights and obligations of the
-------------
parties shall be interpreted, construed and enforced in accordance
with the Laws of the state in which the Building is located and
Landlord and Tenant hereby irrevocably consent to the jurisdiction and
proper venue of such state. If any term or provision of this Lease
shall to any extent be invalid or unenforceable, the remainder of this
Lease shall not be affected, and each provision of this Lease shall be
valid and enforced to the fullest extent permitted by Law. The
headings and titles to the Articles and Sections of this Lease are for
convenience only and shall have no effect on the interpretation of any
part of the Lease.
(b) Memorandum of Lease. Following the mutual execution and delivery of
-------------------
this Lease, Tenant, upon written request to Landlord, should have the
right to record a Memorandum of Lease reflecting Tenant's leasehold
interest as created hereby; provided, that such Memorandum is in form
and substance satisfactory to Landlord, in Landlord's reasonable
determination, and that Landlord shall have the right to require
Tenant to simultaneously deliver to Landlord a quitclaim deed of
Tenant's leasehold interest in form and substance reasonably
satisfactory to Landlord for recording by Landlord upon the expiration
or sooner termination of this Lease.
(c) Waiver of Jury Trial. Landlord and Tenant hereby waive any right to
--------------------
trial by jury in any proceeding based upon a breach of this Lease.
(d) Force Majeure. Whenever a period of time is prescribed for the taking
-------------
of an action by Landlord or Tenant, the period of time for the
performance of such action shall be extended by the number of days
that the performance is actually delayed due to fire, windstorm,
flood, explosion, collapse of structures, governmental preemption or
prescription, unavailability of utilities, strikes, acts of God,
shortages of labor or materials, war, civil disturbances and other
causes beyond the reasonable control of the performing party ("Force
Majeure"). However, events of Force Majeure shall not extend or delay
any date or period of time for the payment of Rent or other sums
payable by either party or any period of time for the written exercise
of an option or right by either party.
(e) Brokers. Tenant represents that it has dealt directly with and only
-------
with the Broker(s) described in Article 1 as a broker in connection
with this Lease. Tenant shall indemnify and hold Landlord and the
Landlord Related Parties harmless from all claims of any other brokers
claiming to have represented Tenant in connection with this Lease.
Landlord agrees to indemnify and hold Tenant and the Tenant Related
Parties harmless from all claims of any brokers claiming to have
represented Landlord in connection with this Lease.
(f) Authorizations, Etc.. Tenant covenants, warrants and represents that:
--------------------
(1) each individual executing, attesting and/or delivering this Lease
on behalf of Tenant is authorized to do so on behalf of Tenant; (2)
this Lease is binding upon Tenant; and (3) Tenant is duly organized
and legally existing in the state of its organization and is qualified
to do business in the state in which the Premises are located. If
there is more than one Tenant, or if Tenant is comprised of more than
one party or entity, the obligations imposed upon Tenant shall be
joint and several obligations of all the parties and entities.
Notices, payments and agreements given or made by, with or to any one
person or entity shall be deemed to have been given or made by, with
and to all of them.
(g) Time of Essence. Time is of the essence with respect to Tenant's
---------------
exercise of any expansion, renewal or extension rights granted to
Tenant (if any). This Lease shall create only the relationship of
landlord and tenant between the parties, and not a partnership, joint
venture or any other relationship. This Lease and the covenants and
conditions in this Lease shall inure only to the benefit of and be
binding only upon Landlord and Tenant and their permitted successors
and assigns.
(h) Survival. The expiration of the Term, whether by lapse of time or
--------
otherwise, shall not relieve either party of any obligations which
accrued prior to or which may continue to accrue after the expiration
or early termination of this Lease.
(i) No Offer. Landlord has delivered a copy of this Lease to Tenant for
--------
Tenant's review only, and the delivery of it does not constitute an
offer to Tenant or an option. This Lease shall not be effective
against any party hereto until an original copy of this Lease has been
signed and delivered by such party.
(j) Integration. All understandings and agreements previously made between
-----------
the parties are superseded by this Lease, and neither party is relying
upon any warranty, statement or representation not contained in this
Lease. This Lease may be modified only by a written agreement signed
by Landlord and Tenant.
(k) Graphics. Tenant shall have the right to (i) one listing in the
--------
Building's directory on the ground floor lobby, to be provided by
Landlord using the Building's standard lettering and (ii) one
Building-standard entry sign on or adjacent to the entrance to the
Premises, to be provided at Tenant's expense.
(l) [INTENTIONALLY OMITTED]
(m) Confidentiality.
---------------
(i) Landlord shall use reasonable efforts to keep all Confidential
Information of Tenant (defined below) confidential; as used
herein "Confidential Information of Tenant" shall mean any data
or information pertaining to Tenant or Tenant's business,
regardless of medium that is provided by Tenant to Landlord,
including Tenant's plans and specifications or electrical power
requirements, site plans, or copies of any such information but
shall exclude any information (a) approved in writing by Tenant
for release to third parties, (b) that Landlord possess
independently of Tenant, (c) that Tenant places in the public
domain or (d) except as may be approved in writing by Tenant for
release to third parties or as may be required by applicable law
or as Landlord may , in Landlord's good faith business judgment,
disclose in confidence to Landlord's counsel, lenders, or
investors, contractors, engineers, architects, project managers
in the course of the operation of the Building and Property.
(ii) Tenant agrees to use reasonable efforts to keep confidential the
terms and conditions of this Lease, and not to disclose the terms
and conditions of this Lease to any third parties except as may
be approved in writing by Landlord for release to third parties
or as may be required by applicable law or as Tenant may, in
Tenant's good faith business judgment, disclose in confidence to
Tenant's counsel, lenders, or investors.
(n) Financial Information. Tenant, within 15 days after request (but no
---------------------
more often than once per calendar quarter), shall provide Landlord
with a current financial statement and such other information as
Landlord may reasonably request. Landlord shall use reasonable efforts
to maintain such information as confidential.
34. Entire Agreement.
----------------
This Lease and the following exhibits and attachments constitute the entire
agreement between the parties and supersede all prior agreements and
understandings related to the Premises, including all lease proposals, letters
of intent and other documents:
Exhibit A (Outline and Location of Premises)
Exhibit B (Outline and Location of Equipment Space)
Exhibit C (Rules and Regulations)
Exhibit D (Commencement Letter)
Exhibit E (Haz Mat Certificate)
Exhibit F (Tenant Options)
Exhibit G (Form Agreement Regarding Lender's Security Interest)
LANDLORD: CARLYLE-CORE CHICAGO LLC,
a Delaware limited liability company
By: /s/ Fred Ezra
---------------------------------------------
Name: Fred Ezra
-------------------------------------------
Title: Manager
------------------------------------------
TENANT: EQUINIX, INC.,
a Delaware corporation
By: /s/ Albert M. Avery, IV
---------------------------------------------
Name: Albert M. Avery, IV
-------------------------------------------
Title: President
------------------------------------------
By: /s/ Jay S. Adelson
---------------------------------------------
Name: Jay S. Adelson
-------------------------------------------
Title: Vice President
------------------------------------------
EXHIBIT A
---------
PREMISES
--------
[GRAPHIC OF FLOOR PLAN OF PREMISES]
EXHIBIT A - Page 1
EXHIBIT B
---------
EQUIPMENT SPACE
---------------
[GRAPHIC OF FLOOR PLAN OF EQUIPTMENT SPACE]
EXHIBIT B - Page 1
EXHIBIT C
---------
BUILDING RULES AND REGULATIONS
------------------------------
The following rules and regulations shall apply, where applicable, to the
Premises, the Building, the parking garage (if any), the Property and the
appurtenances. Capitalized terms have the same meaning as defined in the Lease.
1. Sidewalks, doorways, vestibules, halls, stairways and other similar areas
shall not be obstructed by Tenant or used by Tenant for any purpose other
than ingress and egress to and from the Premises. No rubbish, litter,
trash, or material shall be placed, emptied, or thrown in those areas. At
no time shall Tenant permit Tenant's employees to loiter in Common Areas or
elsewhere about the Building or Property.
2. Plumbing fixtures and appliances shall be used only for the purposes for
which designed, and no sweepings, rubbish, rags or other unsuitable
material shall be thrown or placed in the fixtures or appliances. Damage
resulting to fixtures or appliances by Tenant, its agents, employees or
invitees, shall be paid for by Tenant, and Landlord shall not be
responsible for the damage.
3. No signs, advertisements or notices shall be painted or affixed to windows,
doors or other parts of the Building, except those of such color, size,
style and in such places as are first approved in writing by Landlord as
specifically provided for in the Lease.
5. Landlord will be provided with keys to the Premises.
6. All contractors, contractor's representatives and installation technicians
performing work in the Building shall be subject to Landlord's prior
approval and shall be required to comply with Landlord's standard rules,
regulations, policies and procedures, which may be revised from time to
time.
7. Tenant shall not: (1) make or permit any improper, objectionable or
unpleasant noises or odors in the Building, or otherwise interfere in any
way with other tenants or persons having business with them; (2) solicit
business or distribute, or cause to be distributed, in any portion of the
Building, handbills, promotional materials or other advertising; or (3)
conduct or permit other activities in the Building that might, in
Landlord's sole opinion, constitute a nuisance.
8. No animals, except those assisting handicapped persons, shall be brought
into the Building or kept in or about the Premises.
9. Tenant shall not use or occupy the Premises in any manner or for any
purpose which might injure the reputation or impair the present or future
value of the Premises or the Building. Tenant shall not use, or permit any
part of the Premises to be used, for lodging, sleeping or for any illegal
purpose.
10. Tenant shall not install, operate or maintain in the Premises or in any
other area of the Building, electrical equipment that would overload the
electrical system beyond its capacity for proper, efficient and safe
operation as determined solely by Landlord.
11. Tenant shall not operate or permit to be operated a coin or token operated
vending machine or similar device (including, without limitation,
telephones, lockers, toilets, scales, amusement devices and machines for
sale of beverages, foods, candy, cigarettes and other goods), except for
machines for the exclusive use of Tenant's employees.
12. Bicycles and other vehicles are not permitted inside the Building or on the
walkways outside the Building, except in areas designated by Landlord.
13. Landlord may from time to time adopt systems and procedures for the
security and safety of the Building, its occupants, entry, use and
contents. Tenant, its agents, employees, contractors, guests and invitees
shall comply with Landlord's systems and procedures.
EXHIBIT C - Page 1
14. Landlord shall have the right to prohibit the use of the name of the
Building or any other publicity by Tenant that in Landlord's sole opinion
may impair the reputation of the Building or its desirability. Upon
written notice from Landlord, Tenant shall refrain from and discontinue
such publicity immediately.
15. Tenant shall not canvass, solicit or peddle in or about the Building or the
Property.
16. Neither Tenant nor its agents, employees, contractors, guests or invitees
shall smoke or permit smoking anywhere in the Building.
EXHIBIT C - Page 2
EXHIBIT D
---------
COMMENCEMENT LETTER
-------------------
(EXAMPLE)
Date:
Tenant:
Address:_______________________________
_______________________________________
_______________________________________
Re: Commencement Letter with respect to that certain Lease dated as of
______________, _____ by and between CARLYLE-CORE CHICAGO LLC, a Delaware
limited liability company, as Landlord, and ______________________________,
as Tenant, for ____________ square feet of Rentable Area on the _______
floor of the Building located at [*], Chicago, Illinois.
Dear :
In accordance with the terms and conditions of the above referenced Lease,
Tenant accepts possession of the Premises and agrees:
1. The Commencement Date is _________________;
2. The Rent Commencement Date is __________________;
3. The Rentable Area of the Building is __________ Rentable Square Feet;
4. The Rentable Area of the Premises is _________ Rentable Square Feet;
5. Tenant's Pro Rata Share is _________%;
6. The Rentable Area of the Equipment Space is _________ Rentable Square Feet;
7. The schedule of Base Rent payable during the Term is as follows:
8. The schedule of Equipment Space Rent payable during the term is as follows:
9. The Expiration Date is _____________________.
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT D - Page 1
Please acknowledge your acceptance of possession and agreement to the terms set
forth above by signing all 3 counterparts of this Commencement Letter in the
space provided and returning 2 fully executed counterparts to my attention.
Sincerely,
_______________________________
Agreed and Accepted:
Tenant:____________________________
By:_____________________________________
Name:___________________________________
Title::_________________________________
Date:___________________________________
EXHIBIT D - Page 2
EXHIBIT E
---------
HAZARDOUS MATERIALS DISCLOSURE CERTIFICATE
------------------------------------------
Your cooperation in this matter is appreciated. Initially, the information
provided by you in this Hazardous Materials Disclosure Certificate is necessary
for the Landlord (identified below) to evaluate and finalize a lease agreement
with you as tenant. After a lease agreement is signed by you and the Landlord
(the "Lease"), on an annual basis in accordance with the provisions of the
Lease, you are to provide an update to the information initially provided by you
in this certificate. The information contained in the initial Hazardous
Materials Disclosure Certificate and each annual certificate provided by you
thereafter will be maintained in confidentiality by Landlord subject to release
and disclosure as required by (i) any lenders and owners and their respective
environmental consultants, (ii) any prospective purchaser(s) of all or any
portion of the property on which the Premises are located, (iii) Landlord to
defend itself or its lenders, partners or representatives against any claim or
demand, and (iv) any laws, rules, regulations, orders, decrees, or ordinances,
including, without limitation, court orders or subpoenas. Any and all
capitalized terms used herein, which are not otherwise defined herein, shall
have the same meaning ascribed to such term in the signed Lease. Any questions
regarding this certificate should be directed to, and when completed, the
certificate should be delivered to:
Landlord: CARLYLE-CORE CHICAGO LLC
c/o Core Location Realty Associates of Chicago LLC
4520 East-West Highway, Suite 650
Bethesda, Maryland 20814
Name of Tenant: _____________________________________________________________
Mailing Address: _____________________________________________________________
_______________________________________________________________________________
Contact Person, Title and Telephone Number(s): ________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Contact Person for Hazardous Waste Materials Management and Manifests and
Telephone Number(s): __________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
Address of Premises: [*], Chicago, Illinois
1. GENERAL INFORMATION:
Describe the initial proposed operations to take place in, on, or about the
Premises or Equipment Space, including, without limitation, principal products
processed, manufactured or assembled services and activities to be provided or
otherwise conducted. Existing tenants should describe any proposed changes to
on-going operations.
_______________________________________________________________________________
_______________________________________________________________________________
2. USE, STORAGE AND DISPOSAL OF HAZARDOUS MATERIALS
2.1 Will any Hazardous Materials be used, generated, stored or disposed of
in, on or about the Premises or Equipment Space? Existing tenants should
describe any Hazardous Materials which continue to be used, generated, stored or
disposed of in, on or about the Premises or Equipment Space.
Wastes Yes [_] No [_]
Chemical Products Yes [_] No [_]
Other Yes [_] No [_]
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT E - Page 1
If Yes is marked, please explain: ___________________________________
_______________________________________________________________________________
_______________________________________________________________________________
2.2 If Yes is marked in Section 2.1, attach a list of any Hazardous
Materials to be used, generated, stored or disposed of in, on or about the
Premises or Equipment Space, including the applicable hazard class and an
estimate of the quantities of such Hazardous Materials at any given time;
estimated annual throughput; the proposed location(s) and method of storage
(excluding nominal amounts of ordinary household cleaners and janitorial
supplies which are not regulated by any Environmental Laws); and the proposed
location(s) and method of disposal for each Hazardous Material, including, the
estimated frequency, and the proposed contractors or subcontractors. Existing
tenants should attach a list setting forth the information requested above and
such list should include actual data from on-going operations and the
identification of any variations in such information from the prior year's
certificate.
3. STORAGE TANKS AND SUMPS
3.1 Is any above or below ground storage of gasoline, diesel, petroleum,
or other Hazardous Materials in tanks or sumps proposed in, on or about the
Premises or Equipment Space? Existing tenants should describe any such actual or
proposed activities.
Yes [_] No [_]
If yes, please explain: _____________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
4. WASTE MANAGEMENT
4.1 Has your company been issued an EPA Hazardous Waste Generator I.D.
Number? Existing tenants should describe any additional identification numbers
issued since the previous certificate.
Yes [_] No [_]
4.2 Has your company filed a biennial or quarterly reports as a hazardous
waste generator? Existing tenants should describe any new reports filed.
Yes [_] No [_]
If yes, attach a copy of the most recent report filed.
5. WASTEWATER TREATMENT AND DISCHARGE
5.1 Will your company discharge wastewater or other wastes to:
______ storm drain? ______ sewer?
______ surface water? ______ no wastewater or other wastes discharged
Existing tenants should indicate any actual discharges. If so,
describe the nature of any proposed or actual discharge(s).
_______________________________________________________________________________
_______________________________________________________________________________
EXHIBIT E - Page 1
5.2 Will any such wastewater or waste be treated before discharge?
Yes [_] No [_]
If yes, describe the type of treatment proposed to be conducted.
Existing tenants should describe the actual treatment conducted.
_______________________________________________________________________________
_______________________________________________________________________________
6. AIR DISCHARGES
6.1 Do you plan for any air filtration systems or stacks to be used in
your company's operations in, on or about the Premises or Equipment Space that
will discharge into the air; and will such air emissions be monitored? Existing
tenants should indicate whether or not there are any such air filtration systems
or stacks in use in, on or about the Premises or Equipment Space which discharge
into the air and whether such air emissions are being monitored.
Yes [_] No [_]
If yes, please describe: ____________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
6.2 Do you propose to operate any of the following types of equipment, or
any other equipment requiring an air emissions permit? Existing tenants should
specify any such equipment being operated in, on or about the Premises or
Equipment Space.
______ Spray booth(s) ______ Incinerator(s)
______ Dip tank(s) ______ Other (Please describe)
______ Drying oven(s) ______ No Equipment Requiring Air Permits
If yes, please describe: ____________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
7. HAZARDOUS MATERIALS DISCLOSURES
7.1 Has your company prepared or will it be required to prepare a
Hazardous Materials management plan ("Management Plan") pursuant to Fire
Department or other governmental or regulatory agencies' requirements? Existing
tenants should indicate whether or not a Management Plan is required and has
been prepared.
Yes [_] No [_]
If yes, attach a copy of the Management Plan. Existing tenants should
attach a copy of any required updates to the Management Plan.
EXHIBIT E - Page 2
8. ENFORCEMENT ACTIONS AND COMPLAINTS
8.1 With respect to Hazardous Materials or Environmental Laws, has your
company ever been subject to any agency enforcement actions, administrative
orders, or consent decrees or has your company received requests for
information, notice or demand letters, or any other inquiries regarding its
operations? Existing tenants should indicate whether or not any such actions,
orders or decrees have been, or are in the process of being, undertaken or if
any such requests have been received.
Yes [_] No [_]
If yes, describe the actions, orders or decrees and any continuing
compliance obligations imposed as a result of these actions, orders or decrees
and also describe any requests, notices or demands, and attach a copy of all
such documents. Existing tenants should describe and attach a copy of any new
actions, orders, decrees, requests, notices or demands not already delivered to
Landlord pursuant to the provisions of Article 32 of the signed Lease.
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
8.2 Have there ever been, or are there now pending, any lawsuits against
your company regarding any environmental or health and safety concerns?
Yes [_] No [_]
If yes, describe any such lawsuits and attach copies of the
complaint(s), cross-complaint(s), pleadings and all other documents related
thereto as requested by Landlord. Existing tenants should describe and attach a
copy of any new complaint(s), cross-complaint(s), pleadings and other related
documents not already delivered to Landlord pursuant to the provisions of
Article 32 of the Lease.
_______________________________________________________________________________
_______________________________________________________________________________
_______________________________________________________________________________
9. PERMITS AND LICENSES
9.1 Attach copies of all Hazardous Materials permits and licenses
including a Transporter Permit number issued to your company with respect to its
proposed operations in, on or about the Premises or Equipment Space, including,
without limitation, any wastewater discharge permits, air emissions permits, and
use permits or approvals. Existing tenants should attach copies of any new
permits and licenses as well as any renewals of permits or licenses previously
issued.
The undersigned hereby acknowledges and agrees that this Hazardous Materials
Disclosure Certificate is being delivered in connection with, and as required
by, Landlord in connection with the evaluation and finalization of a Lease and
will be attached thereto as an exhibit; that this Hazardous Materials Disclosure
Certificate is being delivered in accordance with, and as required by, the
provisions of Article 32 of the Lease; and that Tenant shall have and retain
full and complete responsibility and liability with respect to any of the
Hazardous Materials disclosed in the HazMat Certificate notwithstanding
Landlord's receipt and/or approval of such certificate.
Tenant further agrees that none of the following described acts or events shall
be construed or otherwise interpreted as either (a) excusing, diminishing or
otherwise limiting Tenant from the requirement to fully and faithfully perform
its obligations under the Lease with respect to Hazardous Materials, including,
without limitation, Tenant's indemnification of the Landlord and all Landlord
Related Parties and compliance with all Environmental Laws, or (b) imposing upon
Landlord, directly or indirectly, any duty or liability with respect to any such
Hazardous Materials, including, without limitation, any duty on Landlord to
investigate or otherwise verify the accuracy of the representations and
statements made therein or to ensure that Tenant is in compliance with all
Environmental Laws: (i) the delivery of such certificate to Landlord and/or
Landlord's acceptance of such certificate, (ii) Landlord's review and approval
of such certificate, (iii) Landlord's failure to obtain such certificate from
Tenant at any time, or (iv) Landlord's actual or constructive knowledge of the
types and quantities of Hazardous Materials being used, stored, generated,
disposed of or transported on or about the Premises or Equipment Space by Tenant
or Tenant's employees, agents, contractors or representatives. Notwithstanding
the foregoing or anything to the contrary contained herein, the undersigned
acknowledges and agrees that Landlord and its partners, lenders and
representatives may, and will,
EXHIBIT E - Page 3
rely upon the statements, representations, warranties, and certifications made
herein and the truthfulness thereof in entering into the Lease and the
continuance thereof throughout the term, and any renewals thereof, of the Lease.
I (print name)______________, acting with full authority to bind the (proposed)
Tenant and on behalf of the (proposed) Tenant, certify, represent and warrant
that the information contained in this certificate is true and correct.
TENANT:
By: ________________________
Title: ________________________
Date: ________________________
EXHIBIT E - Page 4
EXHIBIT F
---------
TENANT OPTIONS
--------------
1. RENEWAL OPTION
--------------
A. Tenant shall have one right to extend the Term (the "Renewal Option")
for an additional period of five (5) years (the "Renewal Term")
commencing on the day following the Expiration Date of the Term, if:
1. Landlord receives notice of exercise of the Renewal Option
("Initial Renewal Notice") nine (9) full calendar months prior to
the expiration of the initial Term and not more than twelve (12)
full calendar months prior to the expiration of the initial Term;
and
2. Tenant is not in default under the Lease and no event which, with
notice, the passage of time, or both, would constitute a default
hereunder on the part of Tenant exists at the time that Tenant
delivers its Initial Renewal Notice or at the time Tenant
delivers its Binding Notice (as defined below); and
3. No portion of the Premises in excess of twenty percent (20%) of
the Rentable Area of the Premises is sublet at the time that
Tenant delivers its Initial Renewal Notice or at the time Tenant
delivers its Binding Notice, other than in connection with a
Permitted Transfer; and
4. The Lease has not been assigned prior to the date that Tenant
delivers its Initial Renewal Notice or prior to the date Tenant
delivers its Binding Notice other than in connection with a
Permitted Transfer; and
5. Tenant executes and returns the Renewal Amendment (hereinafter
defined) within thirty (30) days after submission to Tenant of an
accurate Renewal Amendment.
B. The initial Base Rent rate and Equipment Space Rent rate during the
Renewal Term shall equal the Prevailing Market (hereinafter defined)
rate per Rentable Square Foot, determined in the manner set forth
below.
C. Tenant shall pay Additional Rent (i.e. Operating Expenses and Property
Taxes) for the Premises during any Renewal Term in accordance with the
Lease.
D. Within thirty (30) days after receipt of Tenant's Initial Renewal
Notice, Landlord shall advise Tenant of the applicable Base Rent rate
for the Premises and Equipment Space Rent rate for the Renewal Term.
Tenant, within thirty (30) days after the date on which Landlord
advises Tenant of the Base Rent rate and Equipment Space Rent rate for
the Renewal Term, shall either (i) give Landlord final binding written
notice ("Binding Notice") of Tenant's exercise of its option, or (ii)
if Tenant disagrees with Landlord's determination, provide Landlord
with written notice of rejection (the "Rejection Notice"). If Tenant
fails to provide Landlord with either a Binding Notice or Rejection
Notice within such thirty (30) day period, Tenant's Renewal Option
shall be null and void and of no further force and effect. If Tenant
provides Landlord with a Binding Notice, Landlord and Tenant shall
enter into the Renewal Amendment (as defined below) upon the terms and
conditions set forth herein. If Tenant provides Landlord with a
Rejection Notice, Landlord and Tenant shall work together in good
faith to agree upon the Prevailing Market Base Rent rate and Equipment
Space Rent rate during the Renewal Term. Upon agreement, Landlord and
Tenant shall enter into the Renewal Amendment in accordance with the
terms and conditions hereof. Notwithstanding the foregoing, if
Landlord and Tenant are unable to agree upon the Prevailing Market
Base Rent rate and Equipment Space Rent rate for the Premises within
thirty (30) days after the date on which Tenant provides Landlord with
a Rejection Notice, then Tenant may, on or before the thirty-fifth
(35th) day following Tenant's delivery of the Rejection Notice, either
rescind Tenant's exercise of the Renewal Option or elect to submit the
matter to arbitration; if Tenant fails to timely make an election,
Tenant will be deemed to have submitted the matter to arbitration. If
the matter is submitted to arbitration, the Prevailing Market Base
Rent rate and Equipment Space Rent rate payable as of commencement of
the Renewal Term shall be determined as follows:
EXHIBIT F - Page 1
1. Within ten (10) days after the thirty-fifth (35th) day described
above, Tenant, at its sole expense, shall obtain and deliver in
writing to Landlord a determination of the Prevailing Market Base
Rent rate and Equipment Space Rent rate for the Premises and
Equipment Space, for a term equal to the Renewal Term, from a
real estate broker ("Tenant's Broker") licensed in the State of
Illinois and engaged in the leasing of commercial real estate in
the Chicago, Illinois vicinity for at least the immediately
preceding five (5) years; such determination shall be stated in a
single "per square foot per annum (or month)" figure, for ease of
comparison. If Landlord accepts such determination, the
Prevailing Market Base Rent rate and Equipment Space Rent rate
payable by Tenant during the Renewal Term shall be equal to the
amount determined by Tenant's Broker. If Tenant fails to timely
deliver such determination, the Prevailing Market Base Rent rate
and Equipment Space Rent rate as quoted by Landlord shall
control.
2. If Landlord does not accept such determination, within fifteen
(15) days after receipt of the determination of Tenant's Broker,
Landlord shall designate a similarly qualified broker
("Landlord's Broker"). If the two Brokers are appointed by the
parties as set forth above, such Brokers shall promptly meet and
attempt to agree upon the applicable Prevailing Market Base Rent
rate and Equipment Space Rent rate. If such Brokers are unable
to agree within fifteen (15) days following the appointment of
Landlord's Broker, the Brokers shall select a third broker
meeting the qualifications set forth above within ten (10) days
after the last date the two Brokers are given to agree upon the
applicable Prevailing Market Base Rent rate and Equipment Space
Rent rate. The Third Broker shall be a person who has not
previously acted and is not currently acting in any capacity for
either party.
3. The Third Broker shall conduct its own independent investigation
of the applicable Prevailing Market Base Rent rate and Equipment
Space Rent rate, and shall be instructed not to advise either
party of its determination, except as follows: when the Third
Broker has made its determination (which shall be completed
within fifteen (15) days after the appointment of the Third
Broker), it shall advise Landlord and Tenant and establish a
date, at least five (5) days after the giving of notice by such
Third Broker to Landlord and Tenant, on which it will disclose
its determination. Such meeting shall take place in Landlord's
office unless otherwise mutually agreed by the parties. After
having initialed the paper on which its determination is set
forth, the Third Broker shall place its determination in a sealed
envelope. Landlord's Broker and Tenant's Broker shall each set
forth their determination (each stated in a single "per rentable
square foot per annum (or month)" figure) on a separate piece of
paper, initial the same, and place them in sealed envelopes.
Each of the three envelopes shall be marked with the name of the
party whose determination is inside the envelope. In the
presence of the Third Broker, the determination of the Prevailing
Market Base Rent rate and Equipment Space Rent rate by Landlord's
Broker and Tenant's Broker shall be opened and examined. If the
higher of the two determinations submitted by Landlord's Broker
and Tenant's Broker is one hundred and five percent (105%) or
less of the amount set forth in the lower determination, the
average of the two determinations shall be the Prevailing Market
Base Rent rate and Equipment Space Rent rate, the envelope
containing the determination by the Third Broker shall be
destroyed and the Third Broker shall be instructed not to
disclose its determination. If either party's envelope is blank,
or does not set forth a determination, the determination of the
other party shall prevail and be treated as the Prevailing Market
Base Rent rate and Equipment Space Rent rate. If the higher of
the two determinations is more than one hundred and five percent
(105%) of the amount of the other determination, the envelope
containing the Third Broker's determination shall be opened, the
Prevailing Market Base Rent rate and Equipment Space Rent rate
shall, in such event, be the rent proposed by either Landlord's
Broker or Tenant's Broker which is closest to the determination
of Prevailing Market Base Rent rate and Equipment Space Rent rate
by the Third Broker; if the two are equidistant, the Prevailing
Market Base Rent rate and Equipment Space Rent rate shall be
equal to the Third Broker's determination.
4. Landlord shall pay the costs and fees of Landlord's Broker in
connection with any determination hereunder, and Tenant shall pay
the costs and fees of Tenant's Broker in connection with such
determination. The costs and fees of any Third Broker shall be
paid one-half by Landlord and one-half by Tenant. Tenant
expressly acknowledges that any costs, fees and commissions
arising in
EXHIBIT F - Page 2
favor of any broker or other party hired by Tenant to represent
Tenant in the negotiation of the extension of the term of the
Lease shall be borne solely by Tenant.
5. If the amount of the Prevailing Market Base Rent rate and
Equipment Space Rent rate is not known as of the commencement of
the Renewal Term, then Tenant shall continue to pay the
Prevailing Base Rent rate and Equipment Space Rent rate in effect
immediately prior to the expiration of the initial Term until the
amount of the Prevailing Market Base Rent rate and Equipment
Space Rent rate are determined. When such determination is made,
Tenant shall pay Landlord any deficiency to Landlord upon demand
or Landlord will credit any overpayment against rent next due and
payable under the Lease.
E. If Tenant is entitled to and properly exercises its Renewal Option,
Landlord shall prepare an amendment (the "Renewal Amendment") to
reflect changes in the Base Rent, Equipment Space Rent, Term,
Expiration Date and other appropriate terms. The Renewal Amendment
shall be:
1. sent to Tenant within a reasonable time after receipt of the
Binding Notice; and
2. executed by Tenant and returned to Landlord in accordance with
Section 1.A.5 above.
An otherwise valid exercise of the Renewal Option shall, at Landlord's
option, be fully effective whether or not the Renewal Amendment is
executed.
F. For purpose hereof, "Prevailing Market" shall mean the arms length
fair market annual rent rate per rentable square foot under renewal
leases and amendments in the Building entered into on or about the
date on which the Prevailing Market is being determined hereunder for
space comparable to the Premises and Equipment Space in the Building.
EXHIBIT F - Page 3
EXHIBIT G
---------
SAMPLE LETTER OF CREDIT
________________________
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No. ______________________
Issuance Date: ___________
Expiration Date: _________
Applicant: _______________
Beneficiary
- -----------
[Insert Owner Name]
_____________________________
_____________________________
_____________________________
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your favor
for the account of the above referenced Applicant in the amount of
____________________ U.S. Dollars ($____________________) available for payment
at sight by your draft drawn on us when accompanied by the following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of ______________________ U.S. Dollars
($____________) under your Irrevocable Standby Letter of Credit No.
____________________ represents funds due and owing to us as a result of
the Applicant's failure to comply with one or more of the terms of that
certain lease by and between ______________________, as landlord, and
_____________, as tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it will
be considered automatically renewed for a one year period upon the expiration
date set forth above and upon each anniversary of such date, unless at least
thirty (30) days prior to such expiration date or applicable anniversary
thereof, we notify you in writing by certified mail, return receipt requested,
that we elect not to so renew this Irrevocable Standby Letter of Credit. A copy
of any such notice shall also be sent to: CARLYLE-CORE CHICAGO LLC, c/o Core
Location Realty Associates of Chicago LLC, 4520 East-West Highway, Suite 650,
Bethesda, Maryland 20814, Attention: Management Agent.
In addition to the foregoing, we understand and agree that you shall be entitled
to draw upon this Irrevocable Standby Letter of Credit in accordance with 1. and
2. above in the event that we elect not to renew this Irrevocable Standby Letter
of Credit and, in addition, you provide us with a dated statement purportedly
signed by one of Beneficiary's officers stating that the Applicant has failed to
provide you with an acceptable substitute irrevocable standby letter of credit
in accordance with the terms of the above referenced lease. We further
acknowledge and agree that: (a) upon receipt of the documentation required
herein, we will honor your draws against this Irrevocable Standby Letter of
Credit without inquiry into the accuracy of Beneficiary's signed statement and
regardless of whether Applicant disputes the content of such statement; (b) this
Irrevocable Standby Letter of Credit shall permit partial draws and, in the
event you elect to draw upon less than the full stated amount hereof, the stated
amount of this Irrevocable Standby Letter of Credit shall be automatically
reduced by the amount of such partial draw; and (c) you shall be entitled to
assign your interest in this Irrevocable Standby Letter of Credit from time to
time to an entity or individual who is succeeding to your position as the
landlord under the Lease without our approval and without charge. In the event
of an assignment, we reserve the right to require reasonable evidence of such
assignment as a condition to any draw hereunder.
EXHIBIT G - Page 1
This Irrevocable Standby Letter of Credit is subject to the Uniform Customs
and Practice for Documentary Credits (1993 revision) ICC Publication No. 500.
We hereby engage with you to honor drafts and documents drawn under and in
compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter of
Credit must be addressed to our office located at ____________________________
to the attention of __________________________________.
Very truly yours,
-----------------------
[name]
-----------------------
[title]
-----------------------
EXHIBIT G - Page 2
EXHIBIT H
---------
AGREEMENT REGARDING LENDER'S SECURITY INTEREST
IN TENANT'S PERSONAL PROPERTY
-----------------------------
THIS AGREEMENT is entered into as of the ____ day of _________, 19__, by
and between _______________________________________, a(n)
_________________________ ("Landlord"), _____________________________________,
(a)n ________________________ ("Tenant") and _____________________________, a(n)
_______________________ ("Lender"), with reference to the following facts:
A. Landlord and Tenant have heretofore entered into a written lease dated
____________, 19__, as same may be amended from time to time (the "Lease")
for certain premises (the "Premises") and equipment space (the "Equipment
Space") located in that certain office building known as the Lakeside
Technology Center (the "Building") located at [*], Chicago, Illinois.
B. Tenant desires to borrow money from Lender in the principal sum of
____________________________________ Dollars ($____________) (the "Loan").
C. Lender desires to obtain a security interest in the Tenant's personal
property located within the Premises and/or Equipment Space described in
Exhibit A attached hereto (the "Collateral") until such Loan is repaid.
D. Landlord is willing to subordinate its rights in the Collateral to the
rights of Lender's security interest upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
1. The only property affected by this Agreement is that Collateral
specifically listed on Exhibit A attached hereto. Any property not
described in Exhibit A shall not be subject to the terms of this
Agreement and Landlord shall be entitled, to the extent provided by
the Lease and by law, to exercise any lien, right or remedy against
such other property.
2. Lender acknowledges that it has no security interest in any property
located in, or about, the Premises or Equipment Space other than the
Collateral listed on Exhibit A.
3. Notwithstanding anything to the contrary contained in the Lease, until
such time as Tenant repays in full to Lender the Loan which is secured
by the Collateral, the Collateral shall remain the personal property
of Tenant subject to the security interest of Lender. Lender shall
notify Landlord when the obligations of Tenant to repay the Loan have
been satisfied and discharged.
4. Landlord does hereby subordinate any and all claims or rights in and
to the Collateral to the security interest of Lender in the
Collateral; provided, however, that this subordination nor shall not
prevent Landlord from exercising any lien on any property of Tenant,
including the Collateral, or enforcing any judgment by levying upon
any property of Tenant, including the Collateral, so long as Landlord
recognizes Lender's prior right to the Collateral. Except as
expressly provided herein, the provisions of any security and other
agreements between Tenant and Lender shall at all times be subject and
subordinate to all covenants, terms and conditions of the Lease and
all of Landlord's rights thereunder.
5. Lender can enter the Premises or Equipment Space for purpose of
removal of the Collateral only if:
(a) permitted by the Loan Agreement between Lender and Tenant;
(b) Lender gives Landlord ten (10) days prior written notice;
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
EXHIBIT H - Page 1
(c) Lender enters the Premises or Equipment Space for purpose of
removal of the Collateral at such time and in such manner as
Landlord reasonably may determine so as to minimize disruption to
the operation of the Building;
(d) Lender and Tenant agree, jointly and severally, promptly to
repair any damage to the Premises or to the Building caused by
the removal of the Collateral or, if Landlord shall, in its sole
discretion, elect to make such repairs, to pay to Landlord upon
demand the costs and expenses incurred in connection therewith;
(e) Tenant and Lender agree, jointly and severally, to restore the
Premises or Equipment Space to the condition the Premises were in
prior to the installation of the Collateral;
(f) there shall be no display nor public nor private sale of the
Collateral in or on the Building; and
(g) Lender hereby indemnifies Landlord for any claim, liability or
expense (including reasonable attorneys' fees) arising out of or
in connection with Lender's removal of the Collateral and
Lender's entry and activities upon the Premises or Equipment
Space and the Building.
6. If Landlord shall fail to demand strict compliance with any provision
hereof, such failure shall not constitute a waiver of any right or
remedy to which Landlord may be entitled.
7. If Tenant should be in default under the terms of the Lease, and such
default results in (a) the termination of the Lease or (b) claims by
Landlord for rent due, Lender shall submit to Landlord within ten (10)
days after Landlord's demand, a certified statement showing:
(i) the original amount of funds supplied by Lender to Tenant;
(ii) the amount paid by Tenant to date; and
(iii) the amount due from Tenant to Lender.
In the event Lender sells the Collateral to satisfy claims against
Tenant, all funds derived from the sale of the Collateral, to the
extent that such funds are in excess of the amount owed to the Lender,
shall belong to Landlord, subject to the terms of the Lease, to
satisfy any claim which Landlord may have.
8. Landlord shall have the right, but not the obligation, to cure any
default by Tenant under any agreement between Lender and Tenant
concerning the Collateral. Lender agrees to notify Landlord in
writing of any default on the part of Tenant under its agreement with
Tenant concerning the Collateral and further agrees that Lender shall
not exercise any of its rights with respect to the Collateral unless
Landlord has received the aforesaid notice and has not, within thirty
(30) days after the date thereof, cured such default or if the default
cannot be cured within thirty (30) days, has not commenced curing and
is not diligently prosecuting the cure of Tenant's default; provided,
however, that nothing contained in this Agreement shall require
Landlord to cure any such default or otherwise to perform the
obligations of Tenant to Lender.
9. A default by Tenant under its agreement with Lender concerning the
Collateral shall be deemed a default by Tenant under the Lease.
10. This Agreement contains the entire understanding between the parties
hereto. Any modification shall be effective only if in writing and
signed by the parties hereto.
EXHIBIT H - Page 1
11. Landlord's address for notices is:
CARLYLE-CORE CHICAGO LLC
c/o Core Location Realty Associates of Chicago LLC
4520 East-West Highway, Suite 650
Bethesda, Maryland 20814
Attention: Mark Ezra
With a copy to:
Shartsis, Friese & Ginsburg LLP
One Maritime Plaza, 18th Floor
San Francisco, California 94111
Attention: Jonathan M. Kennedy, Esq.
and
The Carlyle Group
1001 Pennsylvania Avenue
Suite 220 South
Washington, DC 20004
Attention: Gary Block
Tenant's address for notices is:
Equinix, Inc.
901 Marshall Street, 2nd Floor
Redwood City, California 94063
Attention: Mr. Art Chinn
Lender's address for notices is:
______________________________
______________________________
______________________________
Attention: __________________
12. This Agreement shall be governed by and construed in accordance with
the laws of the state in which the Building is located.
13. This Agreement shall be binding upon and inure to the benefit of the
heirs, executors, administrators, successors and assigns of the
respective parties hereto.
EXHIBIT H - Page 2
IN WITNESS WHEREOF, the parties hereto have entered into this Agreement as of
the date set forth above.
LANDLORD: CARLYLE-CORE CHICAGO LLC,
a Delaware limited liability company
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
TENANT: ______________________________________
a(n) _________________________________
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
LENDER: ______________________________________,
a(n) _________________________________
By: ________________________________________
Name: ______________________________________
Title: _____________________________________
EXHIBIT H - Page 3
EXHIBIT A
LIST OF COLLATERAL
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EXHIBIT H - Page 4