SOUTHFIELD TECHNECENTER LEASE BY AND BETWEEN SOUTHFIELD TECHNECENTER RE 1 LLC (As Landlord) AND TALK AMERICA INC. (As Tenant)
SOUTHFIELD
TECHNECENTER
LEASE
BY
AND BETWEEN
SOUTHFIELD
TECHNECENTER RE 1 LLC
(As
Landlord)
AND
TALK
AMERICA INC.
(As
Tenant)
Article
1 Lease
of Premises
Section
1.1 Basic
Lease Provisions and Definitions.
Section
1.2 Leased
Premises.
Article
2 Term
and Possession
Section
2.1 Lease
Term.
Section
2.2 Construction
of Tenant Improvements.
Section
2.3 Surrender
of the Premises.
Section
2.4 Holding
Over.
Section
2.5 Options.
Article
3 Rent
Section
3.1 Base
Rent.
Section
3.2 Additional
Rent.
Section
3.3 Late
Charges.
Article
4 Security
Deposit
Article
5 Use
Section
5.1 Use
of
Leased Premises.
Section
5.2 Covenants
of Tenant Regarding Use.
Section
5.3 Landlord's
Rights Regarding Use.
Article
6 Utilities
and Services
Section
6.1 Services
to be Provided.
Section
6.2 Additional
Services.
Section
6.3 Interruption
of Services.
Article
7 Maintenance
and Repairs
Section
7.1 Tenant's
Responsibility.
Section
7.2 Landlord's
Responsibility.
Section
7.3 Alterations.
Article
8 Casualty
Section
8.1 Casualty.
Section
8.2 Fire
and Extended Coverage Insurance.
Section
8.3 Waiver
of Subrogation.
Article
9 Liability
Insurance
Section
9.1 Tenant's
Responsibility.
Section
9.2 Tenant's
Insurance.
Article
10 Eminent
Domain
Article
11 Assignment
and Sublease
Article
12 Transfers
by Landlord
Section
12.1 Sale
and Conveyance of the Building.
Section
12.2 Subordination
and Estoppel Certificate.
Section
12.3 Lender's
Right.
Section
12.4 Non-Disturbance
Agreement.
Article
13 Default
and Remedy
Section
13.1 Default.
Section
13.2 Remedies.
Section
13.3 Landlord's
Default and Tenant's Remedies.
Section
13.4 Limitation
of Landlord's Liability.
Section
13.5 Nonwaiver
of Defaults.
Section
13.6 Attorneys'
Fees.
Article
14 Right
of First Offer
Section
14.1 Exercise
of Expansion Right.
Section
14.2 Terms
for Expansion Area
Article
15 Right
of First Refusal
Article
16 Notice
and Place of Payment
Section
16.1 Notices.
Section
16.2 Place
of Payment.
Article
17 Hazardous
Materials
Article
18 Mold
Monitoring, Inspecting, and Remediation
Section
18.1 Monitoring
of Leased Premises.
Section
18.2 Inspection
of Leased Premises.
Section
18.3 Remediation
of Mold.
Article
19 Telecommunications
Use
Section
19.1 Telecommunications
Equipment and Systems.
Section
19.2 Fiber
Access.
Section
19.3 Co-Location.
Article
20 Storage
Space
Article
21 [Reserved]
Article
22 Miscellaneous
Section
22.1 Benefit
of Landlord and Tenant.
Section
22.2 Governing
Law.
Section
22.3 Force
Majeure.
Section
22.4 Condition
of Premises.
Section
22.5 Examination
of Lease.
Section
22.6 Indemnification
for Leasing Commissions.
Section
22.7 Quiet
Enjoyment.
Section
22.8 Severability
of Invalid Provisions.
Section
22.9 Representations
and Warranties.
Section
22.10 Survival.
Section
22.11 Financial
Statements.
Section
22.12 Preparation
of Lease.
Section
22.13 Abandonment.
Section
22.14 Security
Systems.
Section
22.15 Construction
Allowance.
This
Lease is executed this 24th day of February, 2003, by and between Southfield
TechneCenter RE 1 LLC,
a
Michigan limited liability company ("Landlord"), and Talk
America Inc.,
a
Pennsylvania corporation ("Tenant").
WITNESSETH:
Article
1 Lease
of Premises
Section
1.1 Basic
Lease Provisions and Definitions.
|
A.
|
Building
Address: 00000 Xxxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx 00000; Building
No. 10
(the "Building"); located in Southfield TechneCenter (the
"Park");
|
B. Rentable
Area:
Leased
Premises: 6,978 rentable square feet
Building:
41,226 rentable square feet
Park:
605,386 rentable square feet
|
C.
|
Tenant's
Share of Building Premises Expenses: A fraction in which the numerator
is
the rentable square footage of the Leased Premises and the denominator
of
which is the rentable square footage within the Building. Tenant’s Share
of Building Premises Expenses has been calculated to be
16.93%.
|
Tenant's
Share of Park Expenses: A fraction in which the numerator is the rentable square
footage of the Leased Premises and the denominator is the rentable square
footage within all of the buildings in the Park with tenants that share the
Park
Expenses. Tenant’s Share of Park Expenses has been calculated to be
1.15%.
D. Minimum
Annual Rent:
|
Period
|
Annual
Minimum Rent
per sq. ft.
|
Annual
Minimum
Rent
|
Monthly
Minimum
Rent
|
|
Lease
Year 1
|
$10.75
|
$75,013.50
|
$6,251.13
|
|
Lease
Year 2
|
$11.07
|
$77,246.46
|
$6,437.21
|
|
Lease
Year 3
|
$11.40
|
$79,549.20
|
$6,629.10
|
|
Lease
Year 4
|
$11.75
|
$81,991.50
|
$6,832.63
|
|
Lease
Year 5
|
$12.10
|
$84,433.80
|
$7,036.15
|
|
Lease
Year 6
|
$12.46
|
$86,945.88
|
$7,245.49
|
|
Lease
Year 7
|
$12.84
|
$89,597.52
|
$7,466.46
|
|
Lease
Year 8
|
$13.22
|
$92,249.16
|
$7,687.43
|
|
Lease
Year 9
|
$13.62
|
$95,040.36
|
$7,920.03
|
|
Lease
Year 10
|
$14.03
|
$97,901.34
|
$8,158.45
|
|
“Lease
Year 1” shall be the one-year period commencing on the Commencement Date,
and each subsequent Lease Year shall be the one-year period beginning
on
the annual anniversary of the Commencement Date. However, if the
Commencement
Date is other than the first day of a calendar month, the first Lease
Year
shall begin on the first day of the first full calendar month following
the Commencement Date, and each subsequent Lease Year shall be the
one-year period beginning on the annual anniversary of the first
Lease
Year. During the period (if any) beginning on the Commencement Date
and
ending on the first day of the first Lease Year, Tenant’s obligation to
pay Minimum Annual Rent shall be pro-rated based on the rate for
the first
Lease Year.
|
Upon
execution of this Lease, Tenant shall pay Landlord the first month’s installment
of Minimum Annual Rent and the Security Deposit referenced in Section
1.1.G.
|
E.
|
Lease
Term: Beginning on the Commencement Date and ending ten (10) years
after
the beginning of the first Lease
Year;
|
|
F.
|
Commencement
Date: Upon execution of this Lease by Landlord and
Tenant;
|
G. Security
Deposit: $6,251.00
|
H.
|
Brokers:
Signature Associates, representing Landlord, and The Xxxx Xxxx Company
and
Paragon Corporate Realty Services, representing
Tenant;
|
|
I.
|
Permitted
Use: Installation, operation, maintenance and replacement of
telecommunications equipment and switching/transmission facilities,
including, without limitation, a local and/or long distance switch,
node,
hub, customer collocation and related equipment, together with general
offices and other uses normally related thereto, and for no other
purpose
without the written consent of Landlord. Without limiting the foregoing,
Tenant shall have the right to install, operate, repair, maintain
and
replace fiber optic or other cable and related equipment according
to all
governmental codes and regulations and in accordance with this Lease
for
the purpose of providing telecommunications services to the public,
including to other tenants of the
Park;
|
J. Address
for notices (as such addresses may be changed pursuant to Section
16.1):
Landlord: Southfield
TechneCenter
c/o
Grubb
& Xxxxx Management
Services, Inc.
00000
Xxxxxxxxx
Xxxxx
000
Xxxxxxxxxx,
Xxxxxxxx 00000
Facsimile
No.: (000) 000-0000
Attn:
Southfield TechneCenter Property Manager
and
Southfield
TechneCenter RE 1 LLC
c/o
Pomeroy Investment Corporation
00
X.
Xxxx Xxxx Xxxx
Xxxxxxxxxx
Xxxxx, XX 00000
Facsimile
No.: (000) 000-0000
Attn:
Director of Asset Management
Tenant: Talk
America Inc.
0000
Xxxxx 000
Xxx
Xxxx,
XX 00000
Facsimile
No.: (000) 000-0000
Attn:
General Counsel
Address
for rental and other payments:
Southfield
TechneCenter
c/o
Grubb
& Xxxxx Management
Services, Inc.
00000
Xxxxxxxxx
Xxxxx
000
Xxxxxxxxxx,
Xxxxxxxx 00000
Facsimile
No.: (000) 000-0000
Attn:
Southfield TechneCenter Property Manager
Section
1.2 Leased
Premises.
Landlord
hereby leases to Tenant and Tenant leases from Landlord, subject to all of
the
terms and conditions set forth herein, that portion of the Building referenced
in Section
1.1A of the
Basic
Lease Provisions and designated on Exhibit
A
attached
hereto (the "Leased Premises"). Tenant
acknowledges that it has had the opportunity to measure the Leased Premises
and
agrees that the Leased Premises shall be deemed to include the number of square
feet set forth in Section 1.1.B. and in no event shall Tenant have the right
to
challenge, demand, request or receive any change in the base rent or other
sums
due hereunder as a result of any claimed or actual error or omission in the
measured square footage of the Leased Premises. Landlord
also grants to Tenant, together with and subject to the existing rights and
those other rights granted from time to time by Landlord to others, the
nonexclusive right to use for vehicular and pedestrian ingress and egress and
parking of passenger vehicles the "Building Premises" and "Common Areas" within
the Park and the parking area adjoining the Building and designated on
Exhibit
B.
The
Leased Premises does not include, and Landlord excludes from the Leased
Premises, the exterior walls and roof of the Building and the land beneath
the
Building. Subject to the terms and conditions set forth in Articles 7 and 19
of
this Lease, Landlord further grants to Tenant the right to install and use
certain Telecommunications Equipment, supplemental air conditioning system(s),
fiber optic cable, a back-up power supply and related equipment and systems
on
the roof and in other portions of the Building and the Park, together with
the
right to use certain Storage Space (as defined in Article 20) located in the
Park as set forth in Article 20.
"Building
Premises" shall mean the Building and the area within and appurtenant to the
Building designated for use in common by all tenants of the Building and their
respective employees, agents, customers, invitees and others including by way
of
illustration, but not limitation, sidewalks, landscaped areas, parking areas
and
driveways appurtenant to the Building, and as depicted on Exhibit
B,
attached hereto and incorporated herein by this reference. The area of the
Building Premises may be adjusted from time to time as necessary; provided
that any
such adjustment shall not materially impact Tenant’s rights to use the Leased
Premises and other areas of the Park as provided in this Section
1.2.
"Common
Areas" shall mean the areas within the Park that are designated for use in
common by all tenants of the Park (which do not include areas defined as the
Building Premises or any common areas appurtenant to any other building within
the Park) and their respective employees, agents, customers, invitees and
others, and include by way of illustration, but not limitation, sidewalks,
landscaped areas, storm and sanitary sewer systems and other utilities servicing
the Park, access and perimeter roads, truck passageways (which may be in whole
or in part below grades), and driveways; and any portion of the Park not
heretofore included within Common Areas shall be included when so designated
and
improved for common use. Notwithstanding the foregoing, Tenant will not
participate in any costs associated with any parking lot maintenance other
than
that within the Building Premises. The area of the Common Areas may be adjusted
from time to time as necessary.
Article
2 Term
and Possession
Section
2.1 Lease
Term.
The
term
of this Lease (the original approximately 10-year lease term referred to in
Section 1.1.E. is hereinafter sometimes referred to as the “Original Term”; and
the Original Term as extended by Tenant pursuant to Section 2.5 by the exercise
of any Option Terms is hereinafter referred to as the “Lease Term”) shall be the
period of time specified in the Basic Lease Provisions and shall commence on
the
Commencement Date described in the Basic Lease Provisions. Upon delivery of
possession of the Leased Premises to Tenant, Tenant shall execute a letter
of
understanding acknowledging (i) the Commencement Date of this Lease, and (ii)
that Tenant has accepted the Leased Premises for occupancy and that the
condition of the Leased Premises (including any tenant finish improvements
constructed thereon), the Building Premises and Common Areas were at the time
satisfactory and in conformity with the provisions of this Lease in all
respects. Such letter of understanding shall become a part of this Lease. If
Tenant takes possession of and occupies the Leased Premises, Tenant shall be
deemed to have accepted the Leased Premises as described above, even though
Tenant may not have executed the letter of understanding.
Section
2.2 Construction
of Tenant Improvements.
Tenant
has personally inspected the Leased Premises and accepts the same "as is"
without representation or warranty by Landlord of any kind and with the
understanding that Landlord shall have no responsibility with respect thereto
except as otherwise specifically set forth in this Lease.
Section
2.3 Surrender
of the Premises.
Upon
the
expiration or earlier termination of this Lease, or upon the exercise by
Landlord of its right to reenter the Leased Premises without terminating this
Lease, Tenant shall immediately surrender the Leased Premises to Landlord,
in
broom-clean condition and in good order, condition and repair, except for
ordinary wear and tear and damage which Tenant is not obligated to repair.
Tenant shall also remove its personal property, trade fixtures and any of
Tenant's alterations (other than the “Approved Alterations” described in Section
7.3) designated by Landlord including by way of illustration, but not
limitation, wiring and cabling; promptly repair any damage caused by such
removal; and restore the Leased Premises to the substantially similar condition
existing prior to the installation of the items so removed. If Tenant fails
to
do so, Landlord may restore the Leased Premises to such condition at Tenant's
expense, Landlord may cause all of said property to be removed at Tenant's
expense, and Tenant hereby agrees to pay all the costs and expenses thereby
reasonably incurred. All property of Tenant which is not removed within fifteen
(15) days following Landlord's written demand therefore shall be conclusively
deemed to have been abandoned by Tenant, and Landlord shall be entitled to
dispose of such property without thereby incurring any liability to Tenant.
The
provisions of this section shall survive the expiration or earlier termination
of this Lease.
Section
2.4 Holding
Over.
If
Tenant
retains possession of the Leased Premises after the expiration or earlier
termination of this Lease with Landlord’s consent, Tenant shall become a tenant
from month to month at one hundred fifty percent (150%) of the Monthly Rental
Installment in effect at the end of the Lease Term (plus Additional Rent as
provided in Article
3 hereof),
and otherwise upon the terms, covenants and conditions herein specified, so
far
as applicable. Acceptance by Landlord of rent after such expiration or earlier
termination shall not result in a renewal of this Lease, and Tenant shall vacate
and surrender the Leased Premises to Landlord upon Tenant being given ten (10)
days prior written
notice from Landlord to vacate. The foregoing provisions of this Section 2.4
shall neither be construed to give Tenant any right to remain in possession
of
the Premises or any part thereof after the Expiration Date, nor to waive any
of
Landlord's rights under this Lease to collect any damages to which Landlord
may
be entitled, whether direct or consequential.
Section
2.5 Options.
(a) If
Tenant
shall not then be in material default under any of the terms and conditions
of
this Lease, Tenant shall have the right to extend the term of this Lease for
an
additional successive period of five (5) years (the "First Option Term"),
provided that Tenant shall deliver to Landlord written notice of its election
to
extend the term of this Lease at least twelve (12) months prior to the
expiration date of the Original Term, time being of the essence.
(b) If
Tenant
shall not then be in material default under any of the terms and conditions
of
this Lease and Tenant shall have elected to extend the term of this Lease for
the First Option Term, Tenant shall have the right to extend the term of this
Lease for an additional successive period of five (5) years (the "Second Option
Term"), provided that Tenant shall deliver to Landlord written notice of its
election to extend the term of this Lease at least twelve (12) months prior
to
the expiration date of the First Option Term, time being of the essence.
(c) If
Tenant
shall not then be in material default under any of the terms and conditions
of
this Lease and Tenant shall have elected to extend the term of this Lease for
the First and Second Option Terms, Tenant shall have the right to extend the
term of this Lease for an additional successive period of five (5) years (the
"Third Option Term"), provided that Tenant shall deliver to Landlord written
notice of its election to extend the term of this Lease at least twelve (12)
months prior to the expiration date of the Second Option Term, time being of
the
essence. For purposes of this Section 2.5, any default of Tenant relating to
the
payment of rent or other sums due pursuant to this Lease shall be deemed
material if such amount is outstanding on the date Tenant exercises its right
to
extend the term of the Lease for any Option Term and Tenant fails to pay such
amount within seven (7) days of receiving written notice from Landlord that
such
amount is outstanding.
(d) Other
than as expressly otherwise provided herein, all of the covenants, agreements,
terms and conditions contained in the Lease shall remain in full force and
effect during the Option Terms except that the Minimum Annual Rent during each
Option Term shall be equal to the greater of (i) the "Fair Market Rental Rate"
for the Leased Premises, or (ii) one hundred three percent (103%) of the rental
rate paid by Tenant during the last year of the immediately preceding term,
with
three percent (3%) annual increases thereafter. For purposes hereof, "Fair
Market Rental Rate" shall mean the Minimum Annual Rent, on a so-called "net"
basis, that would be paid by a willing tenant, not compelled to lease, and
accepted by a willing landlord, not compelled to lease, for the Leased Premises
as of the pertinent date taking into consideration rent for comparable premises
in comparable buildings in the relevant competitive market including the amount
of space and length of term taken by the tenant and the creditworthiness and
quality of the tenant, but ignoring the value of all improvements to the Leased
Premises that Tenant made at its own expense (except those improvements that
Landlord requires Tenant to leave upon termination of the Lease). Immediately
upon the exercise by Tenant of an option to extend the term of the Lease
pursuant to this Section 2.5, Landlord and Tenant shall commence good faith
negotiations to determine the Fair Market Rental Rate of the Leased Premises
for
the Option Term. In the event that Landlord and Tenant are not able to agree
on
the Fair Market Rental Rate of the Leased Premises for the Option Term within
three (3) months of Tenant's exercise of an option, Landlord and Tenant shall
each appoint an appraiser (the "Party-Selected Appraisers") who is a licensed
real estate broker with experience leasing comparable types of properties in
the
Detroit metropolitan area within one (1) month after the expiration of such
three (3) month period. Within fifteen (15) days of the date the last
Party-Selected Appraiser is selected, the Party-Selected Appraisers shall select
a third appraiser (the "Independent Appraiser"; the Independent Appraiser and
the Party-Selected Appraisers are hereinafter collectively referred to as the
"Appraisers") who is certified as a licensed real estate broker with experience
leasing comparable types of properties in the Detroit metropolitan area .
Thereafter, the Appraisers shall determine the Fair Market Rental Rate of the
Leased Premises. If the Appraisers are unable to agree upon such value within
two (2) months of the date the last Appraiser is selected, the Fair Market
Rental Rate of the Leased Premises for the Option Term shall be equal to the
Fair Market Rental Rate determined by the Appraiser whose determination is
between the values determined by the other Appraisers. The fees of the
Independent Appraiser shall be borne equally by Landlord and Tenant and each
party shall be responsible for the fees of the Appraiser selected by it. If
either party fails to appoint a qualified appraiser within the time provided
herein, the determination of the appraiser appointed by the other party shall
be
binding and conclusive on the parties. Upon determination of the Minimum Annual
Rental pursuant to this Section 2.5(d) for the subject Option Term, the parties
shall enter into a writing evidencing such determination. The procedure
described in this Section 2.5(d) shall be used to determine the Fair Market
Rental Rate for each Option Term.
(e) The
right
to exercise the Option Terms shall be null and void upon an assignment of this
Lease or sublease of more than fifty percent (50%) of the Leased Premises to
an
assignee or sublessee unless such assignee or sublessee is (1) an Affiliate
of
Tenant (as defined in Article 11) or controls a majority interest in the assets
of Tenant, or (2) if Landlord has released Tenant from liability pursuant to
this Lease, has a net worth equal to or greater than Tenant on the date of
such
assignment or sublease.
Article
3 Rent
Section
3.1 Base
Rent.
Tenant
shall pay to Landlord as Minimum Annual Rent for the Leased Premises the sum
specified in the Basic Lease Provisions, payable in equal consecutive Monthly
Rental Installments, in advance, without deduction or offset, beginning on
the
Commencement Date and on or before the first day of each and every calendar
month thereafter during the Lease Term. The Monthly Rental Installment for
partial calendar months shall be prorated based on the number of days during
the
month this Lease was in effect in relation to the total number of days in such
month.
Section
3.2 Additional
Rent.
In
addition to the Minimum Annual Rent specified in this Lease, Tenant agrees
to
pay to Landlord for each calendar year during the Lease Term, as "Additional
Rent”, the sum of (A) Tenant's Share of Building Premises Expenses and (B)
Tenant's Share of Park Expenses.
"Park
Expenses" shall mean the Operating Expenses and Real Estate Taxes for the Common
Areas.
“Building
Premises Expenses” shall mean the Operating Expenses and Real Estate Taxes for
the Building Premises.
"Operating
Expenses" shall mean all of Landlord's expenses for operation, repair,
replacement and maintenance as necessary to keep the Building Premises and
Common Areas in good order, condition and repair (including all additional
direct costs and expenses of operation and maintenance of the Building Premises
which Landlord reasonably determines it would have paid or incurred during
such
year if the Building had been fully occupied) including, but not limited to,
utilities; refuse disposal; stormwater discharge fees; license, permit,
inspection and other fees; fees and assessments imposed by any covenants or
owners' association; tools and supplies; security services; market based
management fees; insurance premiums and deductibles; the cost of capital
improvements or replacements designed to protect the health and safety of the
tenants in the Building; and maintenance and repair of the driveways and parking
areas (including snow removal), exterior lighting facilities, landscaped areas,
walkways, curbs, drainage strips, sewer lines, exterior walls, foundation,
structural frame, roof and gutters. The forgoing list of Operating Expenses
is
for definitional purposes only and shall not impose any obligations upon
Landlord to incur such expenses or provide such service.
Notwithstanding
anything to the contrary, the following items shall be excluded from the
definition of Operating Expenses:
| (a) |
Costs
of decorating, redecorating, or special cleaning or other services
not
provided on a regular basis to tenants of the
Building;
|
| (b) |
Wages,
salaries, fees and benefits paid to executive personnel or officers
or
partners of Landlord;
|
| (c) |
Any
charge for depreciation of the Building or other structures in the
Park or
equipment; provided, however, that if any expense incurred by Landlord
in
operating the Park is required to be capitalized, rather than expensed,
in
accordance with generally accepted accounting principles, the cost
of such
item shall not be included within the definition of Operating Expenses,
but such item shall instead be depreciated over its useful life in
accordance with generally accepted accounting principles and such
depreciation shall be included within the definition of Operating
Expenses;
|
| (d) |
Interest
or other financing charge;
|
| (e) |
Any
charge for Landlord’s income taxes, single business taxes, excess profit
taxes, franchise taxes or similar taxes on Landlord’s business; provided,
however, that such items may be included within Real Estate Taxes
if the
requirements set within the definition of Real Estate Taxes are
satisfied;
|
| (f) |
All
costs relating to activities for the solicitation and execution of
leases
of space in the Building or other buildings in the Park or the relocation
of existing tenants;
|
| (g) |
All
costs and expenses of operating a commercial enterprise in the Park
to the
extent revenues from such commercial enterprise are not applied to
reduce
Operating Expenses;
|
| (h) |
All
costs for which Tenant or any other tenant in the Park is being charged
other than pursuant to the operating expense
clauses;
|
| (i) |
The
cost of any electric current furnished to the Leased Premises or
any
rentable area of the Building or other portions of the Park for purposes
other than the (1) operation of Park equipment and machinery, (2)
the
lighting of public toilets, stairways, shaftways, parking lots, roads,
and
sidewalks, and (3) the operation of Building machinery or fan
rooms;
|
| (j) |
The
cost of correcting defects in the construction of the Building, other
structures in the Park, or in the Park equipment, except conditions
(not
occasioned by construction defects) resulting from ordinary wear
and tear
will not be deemed defects for the purpose of this
category;
|
| (k) |
The
cost of any repair made by Landlord because of the total or partial
destruction of the Building or other structure in the Park or the
condemnation of a portion of the Building or other structure in the
Park;
|
| (l) |
Any
increase in insurance premium to the extent that such increase is
caused
or attributable to a unique use or occupancy of another
tenant;
|
| (m) |
The
cost of any items for which Landlord is reimbursed by insurance or
otherwise compensated by parties other than tenants of the Park pursuant
to clauses similar to this
paragraph;
|
| (n) |
The
cost of any additions or capital improvements to the Building or
other
structure in the Park subsequent to the date of original
construction;
|
| (o) |
The
cost of any repairs, alterations, additions, changes, replacements,
and
other items which, under generally accepted accounting principles,
are
properly classified as capital expenditures to the extent they upgrade
or
improve the Building or other structure in the Park, as opposed to
replacing existing items which have worn
out;
|
| (p) |
Any
operating expense representing an amount paid to a related corporation,
entity or person that is in excess of the amount which would be paid
in
the absence of such relationship;
|
| (q) |
The
cost of tools and equipment used initially in the construction, operation,
repair and maintenance of the Building and other structures in the
Park;
|
| (r) |
The
cost of any work or service performed for or facilities furnished
to any
tenant of the Park to a greater extent or in a manner more favorable
to
such tenant than that available, performed for, or furnished to
Tenant;
|
| (s) |
The
cost of alterations of space in the Park leased to other
tenants;
|
| (t) |
The
cost of overtime or other expense to Landlord in curing its defaults
to
the extent such costs are greater than that which would be incurred
by
Landlord if Landlord was not in
default;
|
| (u) |
Capital
improvements or expenditures incurred to reduce operating expenses
shall
only be included in operating expenses to the lesser of the annual
amortized amount of said improvements or expenditures (over the useful
life of the improvement or item) or the actual
savings;
|
| (v) |
Ground
rent or similar payments to a ground lessor;
and
|
| (w) |
Salaries
paid to employees above the Building Manager (if there is a Building
Manager and not a Park Manager) or Park Manager
level;
|
| (x) |
Fees
paid to attorneys and accountants that are not paid in connection
with the
operation of the Park as a whole;
|
| (y) |
Commissions
paid to brokers; and
|
| (z) |
Advertising
and promotion costs.
|
"Real
Estate Taxes" shall include any form of real estate tax or assessment, general,
special, ordinary or extraordinary, and any license fee, commercial rental
tax,
improvement bond or bonds, levy or tax (other than inheritance, personal income
or estate taxes) imposed upon the Building Premises and Common Areas by any
authority having the direct or indirect power to tax, together with the
reasonable costs and expenses of contesting the validity or amount of Real
Estate Taxes as follows. Any
costs, expenses and attorneys' fees (including the costs of tax consultants)
incurred by Landlord in connection with the negotiation for reduction in the
assessed valuation of land, buildings and improvements comprising the Park
and
any protest or contest of real estate taxes and/or assessments shall be included
within the term "Real Estate Taxes". If
at any
time during the Lease Term the present method of taxation or assessment shall
be
so changed that there shall be substituted for the whole or any part of said
taxes, assessments, duties, charges, fees or payments now or hereafter levied,
assessed or imposed on real property, a capital levy or other tax levied,
assessed, or imposed on the real property and/or the rents reserved herein,
then
all such capital levies or other taxes shall, to the extent that they are so
substituted, be deemed to be included within the term "Real Estate Taxes".
If
the property is not separately assessed, then Tenant's liability shall be an
equitable proportion of the real estate taxes for all of the land and
improvements included within the tax parcel assessed. Landlord's reasonable
determination thereof, in good faith, shall be conclusive.
Other
than as set forth in the third sentence of the preceding paragraph, the
following items shall be excluded from the definition of Real Estate
Taxes:
| (a) |
Inheritance
taxes;
|
| (b) |
Gift
taxes;
|
| (c) |
Transfer
taxes;
|
| (d) |
Franchise
taxes;
|
| (e) |
Excise
taxes;
|
| (f) |
Net
income taxes;
|
| (g) |
Profit
taxes (including single business
taxes);
|
| (h) |
Capital
levies;
|
| (i) |
Late
payment charges and penalties as long as Tenant has made all payments
required pursuant to this Lease on a timely basis;
and
|
| (j) |
Special
assessments levied against property other than real estate to the
extent
such property does not relate to the operation of the
Park.
|
Landlord
shall use commercially reasonable standards, consistently applied, in
determining Tenant's Rentable Area as set forth in 1.1
B,
the
Rentable Area of the Building, and the Rentable Area of other buildings in
the
Park.
Landlord's
determination of the Rentable Areas made in good faith shall conclusively be
deemed correct for all purposes hereunder, including without limitation the
calculation of Tenant's Share of Park Expenses, Tenant's Share of Building
Premises Expenses, and Tenant's Minimum Annual Rent; provided
that
Tenant shall have an opportunity to measure any space that becomes part of
the
Leased Premises after the Commencement Date, including but not limited to any
Expansion Area or any Right of First Refusal Area.
Tenant
shall pay, prior to delinquency, all taxes assessed against and levied upon
trade fixtures, furnishings, equipment and all other personal property of Tenant
contained in the Leased Premises or elsewhere. Tenant shall cause such trade
fixtures, furniture, equipment and all other personal property to be assessed
and billed separately from the Leased Premises.
(a) Payment
of Adjusted Additional Rent.
The
Additional Rent shall be estimated annually by Landlord, and written notice
thereof shall be given to Tenant at least thirty (30) days prior to the
beginning of each calendar year. In the case of the year in which the term
of
this Lease commences, written notice of the estimated Additional Rent shall
be
given to Tenant prior to the Commencement Date. Tenant shall pay to Landlord
each month, at the same time the Monthly Rental Installment is due, an amount
equal to one-twelfth (1/12) of the estimated Additional Rent.
(b) Increases
in Estimated Additional Rent.
If Real
Estate Taxes or Operating Expenses increase during a calendar year, Landlord
may
increase the estimated Additional Rent during such year by giving Tenant thirty
(30) days written notice to that effect, and thereafter Tenant shall pay to
Landlord, in each of the remaining months of such year, an amount equal to
the
amount of such increase in the estimated Additional Rent divided by the number
of months remaining in such year.
(c) Adjustment
to Actual Additional Rent.
Within
one hundred twenty (120) days after the end of each calendar year, Landlord
shall prepare and deliver to Tenant a statement showing the actual Additional
Rent and installments of Additional Rent paid during such calendar year. Within
thirty (30) days after receipt of the aforementioned statement, Tenant shall
pay
to Landlord, or Landlord shall credit against the next rent payment or payments
due from Tenant, or if the Lease has terminated, then reimbursement to Tenant
as
the case may be, the difference between the actual Additional Rent for the
preceding calendar year and the estimated amount paid by Tenant during such
year. If this Lease shall commence, expire or be terminated on any date other
than the last day of a calendar year, then the Additional Rent for such partial
calendar year shall be prorated on the basis of the number of days during the
year this Lease was in effect in relation to the total number of days in such
year.
(d) Tenant
Verification.
Tenant
or its accountants shall have the right to inspect, at reasonable times and
in a
reasonable manner, during the one-year period following the delivery of
Landlord's statement of the actual amount of the Additional Rent, such of
Landlord's books of account and records as pertain to and contain information
concerning such costs and expenses in order to verify the amounts thereof.
However, Tenant may only conduct such audit (i) upon not less than thirty (30)
days prior notice to Landlord, (ii) at a time mutually agreed upon by Landlord
and Tenant during normal business hours, (iii) not more than once during any
calendar year, and (iv) if such audit is conducted by employees of Tenant or
a
national or regional independent certified public accounting firm. Tenant's
failure to inspect during the one-year period shall forever waive and terminate
Tenant's right to inspect Landlord's books with respect to the Additional Rent
set forth in the applicable statement. Except for disclosures required in
administrative or judicial proceedings or in any dispute with Landlord under
this Lease, Tenant shall keep confidential all information obtained during
such
audit that is not otherwise publicly available, and shall cause any person
conducting such audit on behalf of Tenant to execute an agreement for the
benefit of Landlord to do the same.
Section
3.3 Late
Charges.
Tenant
acknowledges that Landlord shall incur certain additional unanticipated costs
and expenses, including administrative costs and attorneys' fees, if Tenant
fails to timely pay any payment required hereunder. Therefore, as compensation
for such additional expenses, and in addition to the other remedies available
to
Landlord hereunder, if any payment of Minimum Annual Rent or any other sum
or
charge required to be paid by Tenant to Landlord hereunder shall become overdue
for a period of five (5) business days, a late charge of seven percent (7%)
of
the payment so due shall be paid by Tenant as additional rent. In addition,
if
Tenant fails to pay any sum or charge required to be paid by Tenant to Landlord
within fifteen (15) days after the same is due and payable, such unpaid amount
shall bear interest from the due date thereof to the date of payment at the
rate
of the lower of (a) fifteen percent (15%) per annum, or (b) the highest rate
permitted under law.
The
provisions of this Article 3 shall survive the expiration or earlier termination
of this Lease.
Article
4 Security
Deposit
Tenant,
upon execution of this Lease, shall deposit with Landlord the Security Deposit
as specified in the Basic Lease Provisions as security for the full and faithful
performance by Tenant of all of the terms, conditions and covenants contained
in
this Lease on the part of Tenant to be performed, including, but not limited
to,
the payment of the Minimum Annual Rent and Additional Rent. In the event of
a
default by Tenant of any term, condition or covenant herein contained, Landlord
may after providing Tenant with three (3) days advance written notice apply
all
or any part of such security deposit to curing all or any part of such default;
and Tenant agrees to promptly, upon demand, deposit such additional sum with
Landlord as may be required to maintain the full amount of the security deposit.
All sums held by Landlord pursuant to this section shall be without interest
and
may be commingled in a general fund. At the end of the Lease Term, provided
that
there is then no uncured default, Landlord shall return to Tenant the balance
thus remaining of the security deposit within thirty (30) days.
Article
5 Use
Section
5.1 Use
of
Leased Premises.
The
Leased Premises are to be used by Tenant solely as provided in the Basic Lease
Provisions, and for no other purposes without the prior written consent of
Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed. Subject to reasonable security measures in place at the Building and/or
the Park from time to time, Tenant shall be granted access to the Leased
Premises, the Building Premises (including the roof and other portions of the
Building Premises which Tenant is entitled to use pursuant to Section 1.2),
and
the Storage Space 24 hours per day, seven days per week.
Section
5.2 Covenants
of Tenant Regarding Use.
In
connection with its use of the Leased Premises, Tenant agrees to do the
following:
|
(a)
|
Tenant
shall (i) use and maintain the Leased Premises and conduct its business
thereon in a safe and lawful manner, (ii) comply with all laws, rules,
regulations, orders, ordinances, directions and requirements of any
governmental authority or agency, now in force or which may hereafter
be
in force, applicable to Tenant's use of the Leased Premises, including,
without limitation, those which shall impose upon Landlord or Tenant
any
duty with respect to or triggered by a change in the use or occupation
of,
or any improvement or alteration to, the Leased Premises, and (iii)
comply
with and obey all reasonable directions of Landlord, including the
Rules
and Regulations attached hereto as Exhibit
C
and incorporated herein by reference as may be reasonably amended
by
Landlord from time to time; provided, however, that in the event
of a
conflict or inconsistency between this Lease and the Rules and
Regulations, the terms of this Lease shall control. Notwithstanding
anything in this Lease to the contrary, Landlord shall be responsible
for
all costs necessary to cause the Building, Building Premises, Leased
Premises, and Common Areas to be in compliance with current and future
laws, codes, regulations, including those related to handicap and
the
Americans with Disabilities Act requirements, and permit requirements,
but
not to the extent such changes are required as a result of (i) Tenant’s
modification to the Leased Premises, (ii) Tenant’s installation or
operation of specialized telecommunications equipment in the Leased
Premises, or (iii) Tenant’s use of the Leased Premises for any use other
than office or general warehouse use where
such compliance would not be required if the Leased Premises were
used for
office or
general warehouse purposes.
|
|
(b)
|
Tenant
shall not (i) use the Leased Premises for any unlawful purpose or
act,
(ii) commit or permit any waste or material damage to the Leased
Premises,
(iii) store any inventory, equipment or any other materials outside
the
Leased Premises except as otherwise contemplated by Section 7.3 or
Article
19 (including but not limited to storage in the Storage Area), or
(iv) do
or permit anything to be done in or about the Building Premises or
Common
Areas which constitutes a nuisance or which will in any way obstruct
or
interfere with the rights of other tenants or occupants of the buildings
within the Park or injure or annoy them. Landlord shall not be responsible
to Tenant for the nonperformance by any other tenant or occupant
of the
Park of its lease obligations, including, but not limited to, the
Rules
and Regulations.
|
|
(c)
|
Tenant
shall not overload the floors of the Leased Premises as to cause
damage to
the floor. Landlord acknowledges that Tenant intends to reinforce
a
portion of the floor of the Leased Premises as set forth in Section
7.3.
All damage to the floor structure or foundation of the Building due
to
improper positioning or storage of items or materials shall be repaired
by
Landlord at the sole expense of Tenant, who shall reimburse Landlord
immediately therefore upon demand as Additional
Rent.
|
|
(d)
|
Tenant
shall not change its use of the Leased Premises, or allow the Leased
Premises to be used in any manner other than as set forth in Section
1.1.I. of the Basic Lease Provisions, if such change would, in Landlord's
reasonable opinion, invalidate any policy of insurance now or hereafter
carried on the Building Premises or increase the rate of premiums
payable
on any such insurance policy. Should Tenant fail to comply with this
covenant, Landlord may, at its option, require Tenant to stop engaging
in
such activity or to reimburse Landlord as Additional Rent for any
increase
in premiums charged during the Lease Term on the insurance carried
by
Landlord on the Building Premises and attributable to the use being
made
of the Leased Premises by Tenant.
|
|
(e)
|
Tenant
may, at its own expense, erect a sign concerning its business which
shall
be in keeping with the decor and other signs on the Building, provided
that such sign is first approved by Landlord in writing and complies
with
all laws, ordinances, statutes, regulations, rules and orders
(collectively "Laws") of any governmental authority. Landlord's approval,
if given, may be conditioned upon such criteria as Landlord deems
appropriate to maintain the area in a neat and attractive manner.
Tenant
agrees to maintain any sign in good state of repair, and upon expiration
or earlier termination of the Lease Term, Tenant shall promptly remove
the
sign and repair any resulting damage to the
Building.
|
Tenant’s
obligations set forth in this Section 5.2 shall survive the expiration or
earlier termination of this Lease.
Section
5.3 Landlord's
Rights Regarding Use.
In
addition to the rights specified elsewhere in this Lease, Landlord shall have
the following rights regarding the use of the Leased Premises, Building Premises
or the Common Areas by Tenant, its employees, agents, customers and invitees,
each of which may be exercised without notice or liability to
Tenant:
|
(a)
|
Landlord
may install in areas other than the Leased Premises such signs,
advertisements, notices or tenant identification information as it
shall
deem necessary or proper.
|
|
(b)
|
Landlord
shall have the right at any time to change or otherwise alter the
Building
Premises and/or Common Areas; provided
that any such changes shall not materially impact Tenant’s rights to use
the Leased Premises and other areas of the Park as provided in Section
2.1. Subject to Section 5.1, Landlord may control the Building Premises
and the Common Areas in such manner as it deems necessary or
proper.
|
|
(c)
|
Landlord
or Landlord's agent shall be permitted to inspect or examine the
Leased
Premises at any reasonable time with at least 24 hours advance notice
to
Tenant (except in the event of threat of immediate injury or damage
to
persons or property, in which case no such notice shall be required),
and
Landlord shall have the right to make any repairs to the Leased Premises
which are necessary for its preservation; provided, however, that
any
repairs made by Landlord that are Tenant’s obligation pursuant to
Section
7.1
that have not been made by Tenant after notice and opportunity to
cure
shall be at Tenant's expense. Subject to Section 7.3(b) and the first
sentence of this Section 5.3(c), if Tenant is not present to open
and
permit such entry into the Leased Premises at any time when such
entry is
necessary or permitted hereunder, Landlord and its employees and
agents
may enter the Leased Premises by means of a master or pass key or
otherwise. Landlord shall incur no liability to Tenant for such entry
except in cases of the gross negligence or willful misconduct of
Landlord,
nor shall such entry constitute an eviction of Tenant or a termination
of
this Lease, or entitle Tenant to any abatement of rent
therefore.
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Article
6 Utilities
and Services
Section
6.1 Services
to be Provided.
Landlord
shall furnish to Tenant such electrical, water, and sewer service as in its
judgment is reasonably necessary for the comfortable use and occupancy of the
Leased Premises for normal office use during normal business hours on all
generally recognized business days. The cost of furnishing such services may
be
included in Operating Expenses or separately metered and billed directly to
Tenant. Landlord shall also cooperate, at Tenant’s sole cost and expense, in
allowing the services contemplated by Section 1.2, including but not limited
such electrical service as may be required for the Telecommunications Equipment,
supplemental air conditioning system(s), back-up power supply and related
equipment, as set forth in Section 7.3 and Article 19.
Section
6.2 Additional
Services.
If
Tenant
requests any other utilities or building services in frequency, scope, quality
or quantity substantially greater than those which are currently provided to
other tenants in the Building, then Landlord shall use reasonable efforts to
attempt to furnish Tenant with such additional utilities or building services.
In the event Landlord is able to and does furnish such additional utilities
or
building services, the costs thereof shall be borne by Tenant and Tenant shall
reimburse Landlord for any additional costs of operation and maintenance
occasioned thereby monthly as additional rent at the same time Monthly Rental
Installments and other Additional Rent are due, unless such expenses are
separately metered and billed directly to Tenant. Notwithstanding the foregoing,
Tenant shall have the right, at its sole cost and expense, to increase its
electrical capacity to as much as 4,000 amps at 480 volts over a three (3)
to
five (5) year period. Landlord agrees to cooperate and/or assist Tenant, at
Tenant’s sole cost and expense, in securing the electrical capacity from the
local utility provider if necessary.
If
any
lights, machines or equipment (including but not limited to computers) used
by
Tenant in the Leased Premises materially affect the temperature otherwise
maintained by the Building's air-conditioning system or generate substantially
more heat in the Leased Premises than that which would normally be generated
by
the lights and business machines typically used by other tenants in the Building
or by tenants in comparable buildings and Tenant has not installed supplemental
air conditioning to correct such problem, then Landlord shall have the right
to
install any machinery or equipment which Landlord considers reasonably necessary
in order to restore the temperature balance between the Leased Premises and
the
rest of the Building, including equipment which modifies the Building's
air-conditioning system. All costs expended by Landlord to install any such
machinery and equipment and any additional costs of operation and maintenance
occasioned thereby shall be borne by Tenant, who shall reimburse Landlord for
the same as additional rent and as provided in this Section 6.2.
Tenant
shall not install or connect any electrical equipment other than the
business machines and equipment typically used for general office purposes
by
tenants in office buildings comparable to the Building (a desk top computer
being an example of such a typical business machine) and other than as set
forth
in this Lease (including but not limited to Section 7.3 and Article 19) without
Landlord's prior written consent. If Landlord determines that the electricity
used by the equipment to be so installed or connected exceeds the designed
load
capacity of the Building's electrical system or is in any way incompatible
therewith, then Landlord shall have the right, as a condition to granting its
consent, require Tenant to make such modifications to the utility supply or
the
equipment to be installed or connected, as Landlord considers to be reasonably
necessary before such equipment may be so installed or connected. The cost
of
any such modifications shall be borne by Tenant, who shall reimburse Landlord
for the same as additional rent (or any portion thereof paid by Landlord) as
provided in this Section 6.2. Landlord acknowledges that Tenant will be using
the Leased Premises for telecommunications equipment and switching/transmission
facilities and Landlord’s consent shall not be unreasonably withheld or delayed
with respect to the installation of such equipment or utility upgrades needed
for such use.
Section
6.3 Interruption
of Services.
Tenant
understands, acknowledges and agrees that any
one
or more of the utilities or other Building services may be interrupted by
accident, emergency or
other
causes beyond Landlord's control; that Landlord does not represent or warrant
the uninterrupted availability of such utilities or building services; that
any
such interruption shall not be deemed an eviction or disturbance of Tenant's
right to possession, occupancy and use of the Leased Premises or any part
thereof, or render Landlord liable to Tenant for damages by abatement of rent
or
otherwise, or relieve Tenant from the obligation to perform its covenants under
this Lease; and that Landlord shall not be liable to Tenant for any injury,
loss
or damage occasioned by the bursting, stoppage or leaking of water, gas, sewer
or other pipes, except in cases of the gross negligence or willful misconduct
of
Landlord or its agents. Landlord shall have no liability to Tenant (including
without limitation liability for consequential damages or loss of business
income or opportunity) arising out of, resulting from, or related to any such
interruption of services provided herein, except in cases of the gross
negligence or willful misconduct of Landlord or its agents. No such failure
or
interruption shall entitle Tenant to terminate this Lease, unless Tenant cannot
operate its business for more than ten (10) consecutive days, in which case
Tenant, at its sole option, may terminate this Lease by providing written notice
to Landlord prior to the date such failure or interruption ceases.
Article
7 Maintenance
and Repairs
Section
7.1 Tenant's
Responsibility.
During
the term of this Lease, Tenant shall, at its own cost and expense, maintain
in
good condition, repair and replace, if necessary, the interior of the Leased
Premises, including but not limited to the electrical systems, heating and
air
conditioning systems, plate glass, floors, windows and doors, sprinkler and
plumbing systems servicing the Leased Premises. Tenant, at its expense, shall
obtain a preventive maintenance contract on the heating, ventilating and air
conditioning systems that shall be subject to Landlord's reasonable approval.
Tenant shall provide Landlord with a copy of the preventative maintenance
contract no later than ninety (90) days after the Commencement Date. The
preventative maintenance contract shall provide for the inspection and
maintenance of the heating, ventilating and air conditioning system on not
less
than a semi-annual basis.
Section
7.2 Landlord's
Responsibility.
During
the term of this Lease, Landlord shall maintain in good condition and repair
and
replace, if necessary, the roof, exterior walls, foundation and structural
frame
of the Building, the Building Premises and the Common Areas, and the portions
of
the plumbing system that are located outside of the Leased Premises, the costs
of which shall be included in Operating Expenses (except to the extent that
such
costs are excluded pursuant to Section 3.2); provided, however, that to the
extent any of the foregoing items require repair because of the negligence,
misuse, or default of Tenant, its employees, agents, customers or invitees,
Landlord shall make such repairs at Tenant's expense. Landlord shall have no
liability to Tenant (including without limitation liability for consequential
damages or loss of business income or opportunity) arising out of, resulting
from, or related to any injury, damage or interference during any such repair
or
replacement, except in cases of the gross negligence or willful misconduct
of
Landlord or its agents.
Section
7.3 Alterations.
Tenant
shall not permit alterations or additions in or to the Leased Premises unless
and until the plans have been approved by Landlord in writing, such approval
not
to be unreasonably conditioned, delayed or withheld. Tenant agrees to pay
Landlord's reasonable charges for review of any proposed alterations or
additions and supervision of any such alterations and additions. As a condition
of such approval, Landlord may require Tenant to remove the alterations and
restore the Leased Premises upon termination of this Lease; otherwise, all
such
alterations or improvements, except movable office furniture and equipment
and
trade fixtures, shall at Landlord’s option become a part of the realty and the
property of Landlord, and shall not be removed by Tenant. Notwithstanding
anything to the contrary, Tenant shall not be required to remove the alterations
described in Exhibit “D” (the “Approved Alterations”).
In
addition to and subject to the provisions of the preceding paragraph, including,
but not limited to, Landlord’s consent to any alterations or additions that
shall not be unreasonably withheld or delayed, Landlord and Tenant agree as
follows:
(a) Tenant
shall have the right to install HVAC dry coolers and other HVAC support
equipment on the grounds behind the Leased Premises at a location mutually
agreed to by Landlord and Tenant. There shall be no charge by Landlord to Tenant
associated with the rooftop fixtures and the HVAC dry coolers and other HVAC
support equipment located on the grounds behind the Leased Premises. All rooftop
installations shall be consistent with governmental codes and shall be installed
in a manner so as not to impact any warranties in effect on the roof membrane.
Tenant shall have the right to perform an infrared and structural inspection
of
the roof to insure its integrity. This equipment (1) shall be considered a
trade
fixture, (2) shall not become a part of the realty and property of Landlord,
and
(3) shall be removed by Tenant upon the expiration of this Lease.
(b) Tenant
shall have the right to install security systems to protect its technical areas.
Except in the event of imminent danger to property or health, under no
circumstance will Landlord or any of its representatives be granted permission
to enter any technical areas without being accompanied by an authorized Tenant
representative. This equipment (1) shall be considered a trade fixture, (2)
shall not become a part of the realty and property of Landlord, and (3) shall
be
removed by Tenant upon the expiration of this Lease.
(c) Tenant
shall have the right, at Tenant’s sole cost and expense, to install, operate,
maintain, repair and replace for the Lease Term, a maximum 750 kW generator
with
a 500 to 1,100 gallon fossil fuel above-ground storage tank behind the Leased
Premises in the parking lot, as mutually agreed upon by Landlord and Tenant,
and
in accordance with all local, state and federal laws. The location of the
generator will require physical access between the generator location and the
computer room/UPS location within the Leased Premises. Tenant shall have the
right to test the generators between the hours of 8:00 PM on Friday and 7:00
AM
on Monday and during all other times approved by Landlord, such approval not
to
be unreasonably withheld or delayed, and approved by the City of Southfield
if
necessary. This equipment (1) shall be considered a trade fixture, (2) shall
not
become a part of the realty and property of Landlord, and (3) shall be removed
by Tenant upon the expiration of this Lease.
(d) Tenant
shall have the right to install a redundant and dedicated Liebert system or
equivalent HVAC system in a tonnage sufficient to cool its equipment that will
run constantly (24
hours/day and 7 days/week).
Tenant
shall pay all costs and expenses for said installation and use. Landlord and
Tenant shall mutually agree upon the area in which such HVAC system is
installed. This equipment (1) shall be considered a trade fixture, (2) shall
not
become a part of the realty and property of Landlord, and (3) shall be removed
by Tenant upon the expiration of this Lease.
(e) Tenant
shall have the right to demise the technical area with fire-rated walls at
Tenant’s sole cost and expense. Tenant shall also be entitled to modify the
existing fire suppression system in the Leased Premises independent of any
Building fire suppression system and install a “dry” system. Tenant will connect
all alarm points to the existing fire protection system for reporting purposes.
Tenant shall have the right to relocate any existing wet pipes serving other
areas of the Building to non-critical areas (outside of the technical area).
Tenant shall have the right to install a waterproof bladder on the floor of
the
Leased Premises.
(f) If
windows are present in the technical area, Tenant shall have the right to
“block” the window space in the Leased Premises from the inside. Tenant will
work with Landlord for approval of the plans and insure that the outside
building appearance will not materially change.
(g) Tenant
shall have the right to reinforce an approximately 1,000 sq. ft. section of
the
Leased Premises to a 300 lbs/ft live load for battery placement.
If
Landlord consents to Tenant's performance of alterations or additions to the
Leased Premises, Tenant shall ensure that all alterations and improvements
which
are made or necessitated thereby shall be made in accordance with all applicable
laws, regulations and building codes, in a good and workmanlike manner and
in
quality equal to or better than the original construction of the Leased
Premises. Landlord's approval of the plans, specifications and working drawings
for Tenant's alterations shall create no responsibility or liability on the
part
of Landlord for their completeness, design sufficiency, or compliance with
all
laws, rules and regulations of governmental agencies or authorities. Tenant
shall indemnify, defend, and hold harmless Landlord and its officers, directors,
members, managers, employees, contractors and representatives from all costs,
loss or expense directly or indirectly for or on account of any liens asserted
in connection with any labor or material furnished in connection with such
alterations; and nothing in this Lease contained shall be construed to
constitute a consent by Landlord to the creation of any lien. If any lien is
filed against the Park for work claimed to have been done for, or material
claimed to have been furnished to, Tenant, Tenant shall cause such lien to
be
discharged of record within thirty (30) days after filing by bonding or in
any
other lawful manner. Tenant shall indemnify, defend, and hold harmless Landlord
and its officers, directors, members, managers, employees, contractors and
representatives from all costs, losses, expenses, and attorneys' fees in
connection with any such lien.
Tenant’s
obligations set forth in this Article 7 shall survive the expiration or earlier
termination of this Lease.
Article
8 Casualty
Section
8.1 Casualty.
In
the
event of total or partial destruction of the Building or the Leased Premises
or
other portions of the Park used by Tenant as set forth in Section 1.2 by fire
or
other casualty, unless this Lease is terminated as provided below, Landlord
agrees to promptly restore and repair the Leased Premises, the Building and
such
other portions of the Park at Landlord's expense; provided, however, that
Landlord's obligation hereunder shall be limited to the reconstruction of such
of the tenant finish improvements as were originally required to be made by
Landlord, if any. Any insurance proceeds not used by Landlord in restoring
or
repairing the Leased Premises and/or Building shall be the sole property of
Landlord. Rent shall proportionately xxxxx during the time that the Leased
Premises or part thereof are unusable because of any such damage thereto.
Notwithstanding the foregoing, if the Leased Premises are so destroyed that
they
cannot be repaired or rebuilt within one hundred eighty (180) days from the
date
on which the damage occurs, either Tenant or Landlord may, upon thirty (30)
days
written notice to the other party delivered prior to the date that the
restoration required pursuant to this Section 8.1 is completed, terminate and
cancel this Lease, whereupon all further obligations hereunder shall thereupon
cease and terminate as of the date set forth in the notice, except as expressly
set forth herein (including but not limited to the requirement that there be
a
reconciliation of the Additional Rent paid by Tenant for the final partial
year)
and all rent shall xxxxx as of the date of the casualty.
Section
8.2 Fire
and Extended Coverage Insurance.
During
the term of this Lease, Landlord shall maintain fire and extended coverage
insurance on the Building, but shall not protect Tenant's property within the
Leased Premises; and, notwithstanding the provisions of Section
8.1,
Landlord shall not be liable for any damage to Tenant's property within the
Park, except to the extent caused by the gross negligence or willful misconduct
of Landlord and its employees, agents, and invitees. Without limiting the
generality of the foregoing, Landlord shall not be liable for any damage to
Tenant's property resulting from fire, explosion, falling plaster, steam, gas,
electricity, sprinkler system leakage, or water or rain which may leak
from any
part
of the Building or from pipes, appliances or plumbing works therein or from
the
roof.
Section
8.3 Waiver
of Subrogation.
Landlord
and Tenant hereby release each other and their respective agents and employees
from any and all liability to each other or anyone claiming through or under
them by way of subrogation or otherwise for any loss or damage to property
caused by or resulting from risks insured against under the property insurance
for loss, damage or destruction by fire or other casualty carried by the parties
hereto and which was in force at the time of any such loss or damage or which
would have been so covered had the insurance required hereunder been maintained;
provided, however, that this release shall be applicable only with respect
to
loss or damage occurring during such time as the releaser’s policies of
insurance contain a clause or endorsement to the effect that any such release
shall not adversely affect or impair such policies or prejudice the right of
the
releaser to recover thereunder. Landlord and Tenant each agree that it will
require its property insurance carriers to include in its policy such a clause
or endorsement. However, if such endorsement cannot be obtained, or shall be
obtainable only by the payment of an additional premium charge above that which
is charged by companies carrying such insurance without such waiver of
subrogation, then the party undertaking to obtain such waiver shall notify
the
other party of such fact and such other party shall have a period of ten (10)
days after the giving of such notice to agree in writing to pay such additional
premium if such policy is obtainable at additional cost (in the case of Tenant,
pro rata in proportion of Tenant's rentable area to the total rentable area
covered by such insurance); and if such other party does not so agree or the
waiver shall not be obtainable, then the provisions of this Section 8.3 shall
be
null and void as to the risks covered by such policy for so long as either
such
waiver cannot be obtained or the party in whose favor a waiver of subrogation
is
desired shall refuse to pay the additional premium. If the release of either
Landlord or Tenant, as set forth in the first sentence of this Section 8.3,
shall contravene any law with respect to exculpatory agreements, the liability
of the party in question shall be deemed not released, but no action or rights
shall be sought or enforced against such party unless and until all rights
and
remedies against the other's insurer are exhausted and the other party shall
be
unable to collect such insurance proceeds. The waiver of subrogation referred
to
above shall extend to the agents and employees of each party, but only if and
to
the extent that such waiver can be obtained without additional charge (unless
such party shall pay such charge). Nothing contained in this Section 8.3 shall
be deemed to relieve either party from any duty imposed elsewhere in this Lease
to repair, restore and rebuild.
Article
9 Liability
Insurance
Section
9.1 Tenant's
Responsibility.
Landlord
shall not be liable to Tenant or to any other person for (i) damage to property
or injury or death to persons due to the condition of the Leased Premises,
the
Building Premises, or the Common Areas, or (ii) the occurrence of any accident
in or about the Leased Premises, Building Premises, or the Common Areas, (iii)
any act or neglect of Tenant or any other tenant or occupant of the Park or
of
any other person; or (iv) any consequential, indirect, incidental or special
damages regardless of causation, except in each case to the extent such damage,
injury or death is the result of Landlord's gross negligence or willful
misconduct; and Tenant hereby releases Landlord from any and all liability
for
the same. Tenant shall be liable for, and shall indemnify, defend and hold
harmless Landlord and its officers, directors, members, managers, employees,
contractors and representatives from, any and all liability for (i) any act
or
neglect of Tenant and any person coming on the Leased Premises, Building
Premises or Common Areas by the license of Tenant, express or implied, or (ii)
any damage to the Leased Premises, and (iii) any injury to persons, including
death, or damage to property occurring in, on or about the Leased Premises,
except to the extent that, in each case, such damage, injury or death is the
result of Landlord's gross negligence or willful misconduct, and except for
any
loss or damage from fire or casualty insured as provided in 8.2. Notwithstanding
the foregoing, Tenant shall bear the risk of any loss or damage to its property
as provided in 8.2. Tenant’s obligations set forth in this Section 9.1 shall
survive the expiration or earlier termination of this Lease.
Section
9.2 Tenant's
Insurance.
Tenant,
in order to insure against the liabilities specified in this Lease, shall at
all
times during the term of this Lease carry, at its own expense, one or more
policies of general public liability and property damage insurance, issued
by
one or more insurance companies acceptable to Landlord, with the following
minimum coverages:
(a) Worker's
Compensation: minimum statutory amount.
(b) Commercial
General Liability Insurance, including blanket, contractual liability,
broadform property damage, personal injury, completed operations, products
liability, and fire damage: Not less than $2,000,000 Combined Single Limit
for
both bodily injury and property damage.
(c) Fire
and
Extended Coverage, Vandalism and Malicious Mischief, and Sprinkler Leakage
insurance, if applicable, for the full cost of replacement of Tenant's
property.
(d) Business
interruption insurance.
The
insurance policy or policies shall protect Tenant and Landlord as their
interests may appear, naming Landlord and Landlord's managing agent and
mortgagee
as
additional insureds, and shall provide that they may not be canceled on less
than thirty (30) days prior written notice to Landlord. Tenant shall furnish
Landlord with Certificates of Insurance evidencing all required coverage. Should
Tenant fail to carry such insurance and furnish Landlord with such Certificates
of Insurance after a request to do so, Landlord shall have the right to obtain
such insurance and collect the cost thereof from Tenant as additional
rent.
Article
10 Eminent
Domain
If
all or
any substantial part of the Building Premises or Common Areas, shall be acquired
by the exercise of eminent domain, Landlord may terminate this Lease by giving
written notice to Tenant no later than fifteen (15) days after possession
thereof is so taken. If all or any part of the Leased Premises shall be acquired
by the exercise of eminent domain in such a manner that the Leased Premises
shall become unusable by Tenant for the purpose for which it is then being
used,
as permitted hereunder Tenant may terminate this Lease by giving written notice
to Landlord no later than fifteen (15) days after possession of the Leased
Premises or part thereof is so taken. Tenant shall have no claim against
Landlord on account of any such acquisition for the value of any unexpired
portion of the Lease Term remaining after possession of the Leased Premises
is
taken. All damages awarded shall belong to and be the sole property of Landlord;
provided, however, that Tenant shall be entitled to any award expressly made
to
Tenant by any governmental authority for the cost of or the removal or damages
to Tenant's stock, equipment, fixtures and leasehold improvements made at
Tenant's expense, together with other moving expenses or business dislocation
damages.
Article
11 Assignment
and Sublease
Except
as
set forth below, Tenant shall not voluntarily or by operation of law assign,
transfer, mortgage, sublet or otherwise transfer or encumber all or any part
of
Tenant's interest in this Lease or in the Leased Premises without Landlord’s
prior express written consent, which shall not be unreasonably withheld,
conditioned or delayed. Except for Providing Parties using the Leased Premises
in accordance with Section 19.3, Tenant shall not permit the Leased Premises
or
any part thereof to be used or occupied by others without Landlord's prior
express written consent, which shall not be unreasonably withheld, conditioned
or delayed. If Landlord consents to any such assignment or subletting, Tenant
shall pay to Landlord, as Additional Rent, fifty percent (50%) of all moneys
or
other consideration received by Tenant from Tenant's transferee in connection
therewith (including, without limitation, rent received in connection with
any
such sublease, but excluding any amounts received in consideration for services
provided by Tenant or other than as compensation for occupancy of the Leased
Premises) in excess of the amounts owed by Tenant to Landlord under this Lease,
which Additional Rent shall be paid to Landlord as and when received by Tenant.
Any attempted assignment, transfer, mortgage, encumbrance or subletting without
such consent shall be void and shall constitute a breach of this Lease. If
Landlord consents to such assignment or subletting, Tenant shall remain
primarily liable to perform all of the covenants and conditions contained in
this Lease, including but not limited to payment of Minimum Annual Rent and
Additional Rent as provided herein (except to the extent that Landlord expressly
releases Tenant in connection with any such consent). The acceptance of rent
from any other person shall not be deemed to be a waiver of any of the
provisions of this Lease or to be a consent to the assignment of this Lease
or
the subletting of the Leased Premises.
Without
in any way limiting Landlord's right to refuse to consent to any assignment
or
subletting of this Lease, Landlord reserves the right to refuse to give such
consent if in Landlord's discretion and opinion (i) the value or use of the
Leased Premises is or may be in any way adversely affected; (ii) the business
reputation of the proposed assignee or subtenant is deemed unacceptable; (iii)
to the extent that Tenant is being released from liability pursuant to this
Lease, the financial worth of the proposed assignee or subtenant is insufficient
to meet the obligations hereunder or is less than that of Tenant; or (iv) the
proposed subtenant or assignee is a then existing tenant or occupant of the
Building or a person or entity with whom Landlord is then dealing with respect
to leasing space in the Building, or with whom Landlord has had any dealings
within the past six (6) months with respect to leasing space in the Building.
Tenant agrees to reimburse Landlord for reasonable accounting and attorneys'
fees incurred in conjunction with the processing and documentation of any such
requested transfer, assignment, subletting or any other hypothecation of this
Lease or Tenant's interest in and to the Leased Premises.
Notwithstanding
anything to the contrary in this Lease, including but not limited to the
provisions set forth above, any assignment of this Lease or sublease of the
Leased Premises to an “Affiliate” of Tenant shall not require Landlord’s
consent, Tenant’s only obligation being to deliver to Landlord not less than
fifteen (15) days prior notice of such assignment or sublease. For purposes
of
this Lease, the term "Affiliate" shall mean and refer to any person or entity
controlling, controlled by or under common control with another person or
entity. "Control", as used herein, shall mean the ownership, directly or
indirectly, of at least fifty-one percent (51%) of the voting securities of,
or
possession of the right to vote in the ordinary direction of its affairs at
least fifty-one percent (51%) of the voting interest in, any person or
entity.
Co-location
pursuant to Section 19.3 shall not be subject to the terms and conditions set
forth in this Article 11.
Article
12 Transfers
by Landlord
Section
12.1 Sale
and Conveyance of the Building.
Landlord
shall have the right to sell and convey the Building at any time during the
term
of this Lease, subject only to the rights of Tenant hereunder; and such sale
and
conveyance shall operate to release Landlord from liability hereunder arising
after the date of such conveyance, provided that the purchaser of the Building
assumes Landlord's obligations and liabilities hereunder as of the date of
conveyance.
Section
12.2 Subordination
and Estoppel Certificate.
Subject
to subsection (c) and the provisions of Section 12.4 below, Landlord shall
have
the right to subordinate this Lease to any mortgage presently existing or
hereafter placed upon the Building by so declaring in such mortgage; and the
recording of any such mortgage shall make it prior and superior to this Lease
regardless of the date of execution or recording of either document. Within
ten
(10) business days following receipt of a written request from Landlord, Tenant
shall execute and deliver to Landlord, without cost:
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(a)
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any
reasonable instrument which Landlord may deem necessary or desirable
to
confirm the subordination of this Lease pursuant to the terms set
forth
herein. If Tenant fails or refuses to do so, Landlord may execute
such
instrument in the name and as the act of
Tenant.
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(b)
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an
estoppel certificate in such form as Landlord may reasonably request
certifying (i) that this Lease is in full force and effect and unmodified
(or, if modified, stating the nature of such modification), (ii)
the date
to which rent has been paid, (iii) that there are not, to Tenant's
knowledge, any uncured defaults (or specifying such defaults if any
are
claimed), and (iv) any other matters or state of facts reasonably
required
respecting the Lease or Tenant's occupancy of the Leased Premises.
Such
estoppel may be relied upon by Landlord and by any purchaser or mortgagee
of all or any part of the Building.
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(c)
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Notwithstanding
the foregoing, if the mortgagee shall take title to the Leased Premises
through foreclosure or deed in lieu of foreclosure, Tenant shall
be
allowed to continue in possession of the Leased Premises as provided
for
in this Lease so long as Tenant shall not be in default. Tenant shall,
in
the event any proceedings are brought to foreclose any such mortgage,
attorn to the purchaser upon any such foreclosure and recognize such
purchaser as the landlord under this
Lease.
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Section
12.3 Lender's
Right.
Landlord
shall have the right, at any time and from time to time, to notify Tenant in
writing that Landlord has placed a mortgage on the Building, specifying the
identity of the lender ("Lender"). Following receipt of such notice, Tenant
agrees to give such Lender a copy of any notice of default served by Tenant
on
Landlord. Tenant further agrees that if Landlord fails to cure any default
as
provided in Section
13.3
herein,
Lender shall have an additional thirty (30) days within which to cure such
default; provided, however, that if the term, condition, covenant or obligation
to be performed by Landlord is of such nature that the same cannot reasonably
be
performed within such thirty-day period, such default shall be deemed to have
been cured if Lender commences such performance within said thirty-day period
and thereafter diligently completes the same.
Section
12.4 Non-Disturbance
Agreement.
Landlord
represents and warrants to Tenant that, as of the execution of this Lease,
the
only mortgage and/or ground lease to which Landlord’s interest in the Building
is subject (the “Existing Superior Interest”) is a mortgage granted to First
Union National Bank. Upon execution of this Lease, Landlord shall use reasonable
efforts to obtain from First Union National Bank and deliver to Tenant a written
agreement (a “Non-Disturbance Agreement”) between Tenant and First Union
National Bank providing that (i) Tenant’s lease of the Leased Premises under
this Agreement shall not be disturbed by any exercise of rights under or in
connection with the ground lease or security instrument held by such party;
and
(ii) this Lease shall not be terminated except in accordance with its
terms. In
order
to effectuate any subordination of this Lease to any future lenders or ground
lessors, Landlord shall obtain and deliver to Tenant a Non-Disturbance Agreement
contemporaneously with such subordination, in form mutually acceptable to the
parties.
Article
13 Default
and Remedy
Section
13.1 Default.
The
occurrence of any of the following shall be deemed an "Event of
Default":
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(a)
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Tenant
shall fail to pay any Monthly Rental Installment or Additional Rent
within
five (5) business days after the same shall be due and payable, or
Tenant
shall fail to pay any other amounts due Landlord from Tenant within
ten
(10) business days after the same shall be due and payable, provided,
however, that any such failure to make a payment when due shall not
be an
Event of Default if Landlord receives such payment within three (3)
days
after Tenant received written notice of such failure from
Landlord.
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(b)
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Tenant
shall fail to perform or observe any term, condition, covenant or
obligation as required under this Lease for a period of ten (10)
business
days after written notice thereof from Landlord; provided, however,
that
if the nature of Tenant's default is such that more than ten days
are
reasonably required to cure, then such default shall be deemed to
have
been cured if Tenant commences such performance within said ten-day
period
and thereafter diligently completes the required action within a
reasonable time.
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(c)
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All
or substantially all of Tenant's assets in the Leased Premises or
Tenant's
interest in this Lease are attached or levied under execution (and
Tenant
does not discharge the same within sixty (60) days thereafter); a
petition
in bankruptcy, insolvency, or for reorganization or arrangement is
filed
by or against Tenant (and Tenant fails to secure a stay or discharge
thereof within sixty (60) days thereafter); Tenant shall be insolvent
and
unable to pay its debts as they become due; Tenant makes a general
assignment for the benefit of creditors; Tenant takes the benefit
of any
insolvency action or law; the appointment of a receiver or trustee
in
bankruptcy for Tenant or its assets if such receivership has not
been
vacated or set aside within thirty (30) days thereafter; dissolution
or
other termination of Tenant's corporate charter if Tenant is a
corporation.
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Section
13.2 Remedies.
Upon
the
occurrence of any Event of Default, Landlord shall have the following rights
and
remedies, in addition to those allowed by law, any one or more of which may
be
exercised without further notice to or demand upon Tenant, except as set forth
below:
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(a)
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Landlord
may apply the security deposit or reenter the Leased Premises and
cure any
default of Tenant, and Tenant shall reimburse Landlord as additional
rent
for any costs and expenses which Landlord thereby incurs; and Landlord
shall not be liable to Tenant for any loss or damage which Tenant
may
sustain by reason of Landlord's action, unless caused by Landlord's
gross
negligence or willful misconduct.
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(b)
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Landlord
may terminate this Lease or, without terminating this Lease, terminate
Tenant's right to possession of the Leased Premises upon providing
Tenant
written notice of such termination and thereafter (i) neither Tenant
nor
any person claiming under or through Tenant shall be entitled to
possession of the Leased Premises, and Tenant shall immediately surrender
the Leased Premises to Landlord; and (ii) Landlord may reenter the
Leased
Premises and dispossess Tenant and any other occupants of the Leased
Premises by any lawful means and may remove their effects, without
prejudice to any other remedy which Landlord may have. Upon the
termination of this Lease, Landlord may declare the present value
(as
determined by Landlord) of all rent which would have been due under
this
Lease for the balance of the Lease Term to be immediately due and
payable,
whereupon Tenant shall be obligated to pay the same to Landlord,
together
with all loss or damage which Landlord may sustain by reason of Tenant's
default ("Default Damages"), which shall include without limitation
expenses of preparing the Leased Premises for re-letting, demolition,
repairs, tenant finish improvements, and brokers' and attorneys'
fees, it
being expressly understood and agreed that the liabilities and remedies
specified in this subsection (b) shall survive the termination of
this
Lease.
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(c)
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Landlord
may, without terminating this Lease, re-enter the Leased Premises
and
re-let all or any part thereof for a term different from that which
would
otherwise have constituted the balance of the Lease Term and for
rent and
on terms and conditions different from those contained herein, whereupon
Tenant shall be immediately obligated to pay to Landlord as liquidated
damages the difference between the present value (using a discount
rate
equal to the “prime rate” as reported in the "Wall
Street Journal"
or
other comparable prime rate index selected by Landlord if the "Wall
Street Journal"
discontinues publishing such data) of the rent provided for herein
and
that provided for in any lease covering a subsequent re-letting of
the
Leased Premises for the period which would otherwise have constituted
the
balance of the Lease Term, together with all of Landlord’s Default
Damages.
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(d)
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Landlord
may xxx for injunctive relief or to recover damages for any loss
resulting
from the breach.
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(e)
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In
addition to the defaults and remedies described above, the parties
hereto
agree that if Tenant defaults in the performance of any (but not
necessarily the same) term or condition of this Lease three (3) or
more
times during any calendar year, regardless of whether such defaults
are
ultimately cured, then Tenant agrees to pay to Landlord upon the
third and
each subsequent default during such calendar year under this habitual
default provision, the amount of One Thousand Dollars ($1,000.00)
as
liquidated damages to cure such default, payable within ten (10)
days
after written demand therefore to Tenant by Landlord. Tenant acknowledges
in the event of such repetitive defaults that (i) Landlord will incur
additional unanticipated costs as a result of such repetitive defaults,
including but not limited to administrative costs and legal fees,
and (ii)
the purpose of this provision is to adequately compensate Landlord
for
those costs, which would be difficult to determine with
certainty.
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Section
13.3 Landlord's
Default and Tenant's Remedies.
Landlord
shall be in default if it shall fail to perform or observe any term, condition,
covenant or obligation as required under this Lease for a period of fifteen
(15)
days after written notice thereof from Tenant to Landlord and to Lender, if
any;
provided, however, that if the term, condition, covenant or obligation to be
performed by Landlord is of such nature that the same cannot reasonably be
performed within such 15-day period, such default shall be deemed to have been
cured if Landlord commences such performance within said 15-day period and
thereafter diligently undertakes to complete the same. If Landlord fails to
cure
such default within the required time period, Tenant may, at its option, (a)
if
the default relates to a condition that is for the exclusive benefit of the
Leased Premises, perform such obligation or make such repair or replacement,
and
Landlord shall reimburse Tenant for the reasonable cost thereof within thirty
(30) days of receiving receipts and evidence of payment for the cost of curing
such default, or (b) xxx for injunctive relief or to recover damages for any
loss resulting from the breach, but Tenant shall not be entitled to terminate
this Lease or withhold, offset or xxxxx any rent due hereunder, except as
otherwise expressly set forth herein.
Section
13.4 Limitation
of Landlord's Liability.
If
Landlord shall fail to perform or observe any term, condition, covenant or
obligation required to be performed or observed by it under this Lease and
if
Tenant shall, as a consequence thereof, recover a money judgment against
Landlord (whether compensatory or punitive in nature), Tenant agrees that it
shall look solely to Landlord's right, title and interest in and to the Building
Premises, together with any proceeds thereof (including but not limited to
insurance proceeds, condemnation proceeds, sale proceeds and rents) for the
collection of such judgment; and Tenant further agrees that no other assets
of
Landlord shall be subject to levy, execution or other process for the
satisfaction of Tenant's judgment and that Landlord shall not be personally
liable for any deficiency.
The
references to "Landlord" in this Lease shall be limited to and mean and include
only the owner or owners, at the time, of the fee simple interest in the
Building. In the event of a sale or transfer of such interest (except a mortgage
or other transfer as security for a debt), the "Landlord" named herein, or,
in
the case of a subsequent transfer, the transferor, shall, after the date of
such
transfer, be automatically released from all liability for the performance
or
observance of any term, condition, covenant or obligation required to be
performed or observed by Landlord hereunder arising thereafter; and the
transferee shall be deemed to have assumed all of such terms, conditions,
covenants and obligations arising thereafter.
Section
13.5 Nonwaiver
of Defaults.
Neither
party's failure or delay in exercising any of its rights or remedies or other
provisions of this Lease shall be construed to be a waiver thereof or affect
its
right thereafter to exercise or enforce each and every such right or remedy
or
other provision. No waiver of any default shall be deemed to be a waiver of
any
other default. Landlord's receipt of less than the full rent due shall not
be
construed to be other than a payment on account of rent then due, nor shall
any
statement on Tenant's check or any letter accompanying Tenant's check be deemed
an accord and satisfaction, and Landlord may accept such payment without
prejudice to Landlord's right to recover the balance of the rent due or to
pursue any other remedies provided in this Lease. No act or omission by Landlord
or its employees or agents during the term of this Lease shall be deemed an
acceptance of a surrender of the Leased Premises, and no agreement to accept
such a surrender shall be valid unless in writing and signed by Landlord.
Notwithstanding the foregoing, Tenant's failure to timely exercise any options
hereunder shall be deemed to waive such options.
Section
13.6 Attorneys'
Fees.
If
either
party defaults in the performance or observance of any of the terms, conditions,
covenants or obligations contained in this Lease and the non-defaulting party
obtains a judgment against the defaulting party, then the defaulting party
agrees to reimburse the non-defaulting party for the reasonable attorneys'
fees
incurred thereby.
Article
14 Right
of First Offer
Section
14.1 Exercise
of Expansion Right.
Provided
that Tenant is not in default of any of the terms and conditions of this Lease
beyond any applicable cure period and at least three (3) years are remaining
in
the Lease Term (including any Options exercised by Tenant prior to or concurrent
with the exercise of its rights set forth in this Section 14.1), Tenant shall
have a one-time first opportunity to lease additional space in the Building
(the
“Expansion Right”), provided that such space is available and vacant and subject
to Landlord’s right to extend any existing tenant’s lease term for such space
(the "Expansion Area”). Landlord shall notify Tenant when any portion of the
Expansion Area is available for lease, and Tenant shall have ten (10) business
days after receipt of Landlord’s notice to either accept or refuse that portion
of the Expansion Area. If accepted, Tenant shall execute a lease amendment
for
the Expansion Area under the terms and conditions set forth in this Section
14.
If Tenant refuses that portion of the Expansion Area, or if Tenant fails to
notify Landlord in writing that it will exercise the Expansion Right within
the
time limit specified, Tenant shall be conclusively presumed to have relinquished
this option with respect to that portion of the Expansion Area, and Landlord
shall thereafter be free to lease that portion of the Expansion Area (or any
portion thereof) to any other party without further restrictions.
Section
14.2 Terms
for Expansion Area.
If
Tenant
elects to lease the Expansion Area pursuant to this Section 14, Tenant shall
do
so on the same terms and conditions of this Lease in effect on the date that
Tenant takes possession of the Expansion Area, including, but not limited to
the
following:
(i) the
Minimum Annual Rent shall be the amount of rent per square foot (with step
escalations) set forth in this Lease;
(ii) Tenant's
proportionate share of Real Estate Taxes and Operating Expenses shall be
increased to reflect the increased area of the Leased Premises;
(iii) The
commencement date of the term for the Expansion Area shall be the later of
(1)
thirty (30) days after Tenant notifies Landlord that it has accepted said
Expansion Area and (2) the date Landlord delivers possession of the Expansion
Area to Tenant;
(iv) Tenant
shall take the Expansion Area in its then 100% “as-is” condition;
(v) Tenant
shall execute a lease amendment which sets forth that the term of the Lease
for
the Expansion Area shall be for a period equal to the remaining term of the
Lease Term; and
(vi) This
option is personal to Tenant, and shall not be assigned or transferred to any
other party whatsoever.
Article
15 Right
of First Refusal
Provided
that Tenant is not then in default of any of the terms and conditions of this
Lease, and further provided that Tenant has a minimum of three (3) years
remaining under the Lease Term (including any renewal options that have been
exercised prior to or concurrent with the exercise of its rights set forth
in
this Article 15), Tenant shall have a one time right of first refusal (the
“Right of First Refusal”) to lease that suite in the Building consisting of
5,181 sq. ft. commonly known as 00000 Xxxxxxx Xxxxxx shown on Exhibit “A” (the
“Right of First Refusal Area”). When Landlord first receives or delivers a
letter of intent or similar document for a prospective tenant to lease the
Right
of First Refusal Area that is acceptable to Landlord, Landlord shall send a
copy
of such document to Tenant (the “Proposal”). Upon receiving a Proposal, Tenant
shall have five (5) business days from the date that Tenant receives a Proposal
to exercise this option to lease the entire Right of First Refusal Area from
Landlord on the terms and conditions set forth in Section 14.2. Tenant's
election must be made by delivery of written notice to Landlord within five
(5)
business days after receipt of the Proposal from Landlord, and upon such
exercise, Landlord and Tenant shall have an additional fifteen (15) days in
which to enter into a binding lease amendment upon the terms set forth in
Section 14.2. In the event Tenant rejects the Proposal, fails to accept the
Proposal within the five (5) business day period, or the lease amendment is
not
entered into between Landlord and Tenant within the said fifteen (15) day
period, and provided that Landlord enters into a lease with a tenant with
respect to such Right of First Refusal Area within six (6) months after
providing a copy of the proposal to Tenant, Tenant shall be conclusively
presumed to have relinquished the Right of First Refusal, and Landlord shall
thereafter be free to lease the Right of First Refusal Area (or any portion
thereof) to any other party without further restrictions.
Article
16 Notice
and Place of Payment
Section
16.1 Notices.
Any
notice required or permitted to be given under this Lease or by law must be
in
writing and must be given only by one of the following methods:
| · |
delivery
in person,
|
| · |
via
facsimile,
|
| · |
by
overnight courier, or
|
| · |
mailed
by certified mail, postage prepaid
|
to
(a)
the party who is to receive such notice at the address specified in the Basic
Lease Provisions and (b) in the case of a default notice from Tenant to
Landlord, any Lender designated by Landlord. All notices, demands and requests
shall be deemed given (i) when personally delivered or sent by facsimile
transmission to the party to be given the notice or other communication, (ii)
on
the business day following the day such notice or other communication is sent
by
overnight courier, or (iii) the third business day following the day such notice
or other communication is sent by certified mail. Either party may change its
address by giving written notice thereof to the other party in the manner
provided in this Section 16.1.
Section
16.2 Place
of Payment.
All
payments required to be made by Tenant to Landlord shall be delivered or mailed
to Landlord's management agent at the address specified in the Basic Lease
Provisions or any other address Landlord may specify from time to time by
written notice to Tenant.
Article
17 Hazardous
Materials
Tenant
shall not in any manner use, maintain or allow the use or maintenance of the
Leased Premises in violation of any law, ordinance, statute, regulation, rule
or
order (collectively "Laws") of any governmental authority, including but not
limited to Laws governing zoning, health, safety (including fire safety),
occupational hazards, and pollution and environmental control. Tenant shall
not
use, maintain or allow the use or maintenance of the Leased Premises or any
part
thereof to treat, store, dispose of, transfer, release, convey or recover
Hazardous Materials (as hereinafter defined) nor shall Tenant otherwise, in
any
manner, possess or allow the possession of any Hazardous Materials on or about
the Leased Premises; provided, however, any Hazardous Material lawfully
permitted and generally recognized as necessary and appropriate for general
office use or otherwise in de
minimus
quantities may be stored and used on the Leased Premises so long as (i) such
storage and use is in the ordinary course of Tenant's business permitted under
this Lease; (ii) such storage and use is performed in compliance with all
applicable Laws; and (iii) Tenant delivers prior written notice to Landlord
of
the identity of and information regarding such materials as Landlord may
require. "Hazardous Materials" shall mean any solid, liquid or gaseous waste,
substance or emission or any combination thereof which may (i) cause or
significantly contribute to an increase in mortality or in serious illness,
or
(ii) pose the risk of a substantial present or potential hazard to human health,
to the environment or otherwise to animal or plant life, and shall include
without limitation hazardous substances and materials described in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980,
as
amended; the Resource Conservation and Recovery Act, as amended; and any other
applicable federal, state or local Laws. Tenant shall immediately notify
Landlord of the presence or suspected presence of any Hazardous Materials on
or
about the Leased Premises if Tenant has not already done so pursuant to the
second sentence of this paragraph and shall deliver to Landlord any notice
received by Tenant relating thereto. Tenant shall promptly notify Landlord
of,
and shall promptly provide Landlord with true, correct, complete and legible
copies of, all of the following environmental items relating to the Leased
Premises which may be filed or prepared by or on behalf of, or delivered to
or
served upon Tenant: all orders, reports, notices, listings and correspondence
(even those which may be considered confidential) of or concerning the release,
investigation of, compliance, clean up, remedial and corrective actions, and
abatement of Hazardous Materials, whether or not required by any applicable
laws, including, but not limited to, reports and notices required by or given
pursuant to any Tenant's use, handling storage or disposal of Hazardous
Materials. In the event of a release of any Hazardous Materials in, on or about
the Leased Premises, Tenant shall promptly provide Landlord with copies of
all
reports and correspondence with or from all governmental agencies or any other
persons relating to such release.
Landlord
and its agents shall have the right, but not the duty, to inspect
the Leased
Premises and conduct tests thereon at any time to determine whether or the
extent to which there are Hazardous Materials on the Leased Premises. Landlord
shall have the right to immediately enter upon the Leased Premises to remedy
any
condition that is not in compliance with applicable laws or is otherwise not
in
compliance with the requirements set forth above. In exercising its rights
herein, Landlord shall use reasonable efforts to minimize interference with
Tenant's business but such entry shall not constitute an eviction of Tenant,
in
whole or in part, and Landlord shall not be liable for any interference, loss,
or damage to Tenant's property or business caused thereby, except to the extent
caused by Landlord's gross negligence or willful misconduct. If Landlord or
any
lender or governmental agency shall ever require testing to ascertain whether
there has been a release of Hazardous Materials, then the reasonable costs
thereof shall be reimbursed by Tenant to Landlord upon demand as Additional
Rent
to the extent that such requirement arose in whole or in part because of Tenant.
Tenant shall execute affidavits, representations and the like from time to
time,
at Landlord's request, concerning Tenant's best knowledge and belief regarding
the presence of any Hazardous Materials on the Leased Premises or Tenant's
intent to store or use Hazardous Materials on the Leased Premises. Tenant shall
indemnify, defend and hold harmless Landlord and its officers, directors,
members, managers, employees, contractors and representatives from any and
all
claims, loss, liability, costs, expenses or damage, including attorneys' fees
and costs of remediation, incurred by Landlord in connection with any breach
by
Tenant of its obligations under this section. The covenants and obligations
of
Tenant hereunder shall survive the expiration or earlier termination of this
Lease.
An
environmental audit may be conducted at Landlord’s option in connection with
Tenant's surrender of the Leased Premises at the expiration, or earlier
termination, of the Lease. Tenant shall promptly comply with all requirements
of
such audit and cure all matters raised therein at Tenant's sole cost. If such
audit indicates Tenant has not complied with the provisions of this Article
17,
Tenant shall promptly reimburse Landlord for the cost of such environmental
audit.
Landlord
represents and warrants to Tenant that except as disclosed in the Phase I
Environmental Site Assessment Report, dated April 26, 2001, prepared by IVI
Environmental, Inc. (a copy of which has been provided to Tenant), no Hazardous
Material has been used, generated, manufactured, produced, stored, released,
discharged or disposed of on, under or about the Leased Premises, Building
Premises, Building or Park or transported to or from the Park by any entity,
firm or person, or from any source or cause whatsoever. Landlord shall
indemnify, defend and hold harmless Tenant and its officers, directors, members,
managers, employees, contractors and representatives from any and all claims,
loss, liability, costs, expenses or damage, including attorneys' fees and costs
of remediation, incurred by Tenant in connection with any breach of the
representation and warranty set forth in the preceding sentence. The obligations
of Landlord set forth in this paragraph shall survive the expiration or earlier
termination of this Lease.
Article
18 Mold
Monitoring, Inspecting, and Remediation
Section
18.1 Monitoring
of Leased Premises.
Landlord
warrants and represents that as of the date of this Agreement, (i) there are
no
Mold Conditions (as defined below) in the Leased Premises, and (ii) to
Landlord’s knowledge, there have been no Mold Conditions in the Leased
Premises.
Tenant,
at its sole cost and expense, shall:
(a) Regularly
monitor the Leased Premises for the presence of mold or for any conditions
that
reasonably can be expected to give rise to mold (the “Mold Conditions”),
including, but not limited to, observed or suspected instances of water damage,
mold growth, repeated complaints of respiratory ailment or eye irritation by
Tenant’s employees or any other occupants in the Leased Premises, or any notice
from a governmental agency of complaints regarding the indoor air quality at
the
Leased Premises; and
(b) Promptly
notify Landlord in writing if it suspects mold or Mold Conditions at the Leased
Premises.
Section
18.2 Inspection
of Leased Premises.
In
the
event of suspected mold or Mold Conditions at the Leased Premises, Tenant,
at
its sole cost and expense, shall promptly cause an inspection of the Leased
Premises to be conducted, during such time as Landlord may designate, to
determine if mold or Mold Conditions are present at the Leased Premises, and
shall:
(a) Notify
Landlord, in writing, at least three days prior to the inspection, of the date
on which the inspection shall occur, and which portion of the Leased Premises
shall be subject to the inspection;
(b) Retain
an
industrial hygienist certified by the American Board of Industrial Hygienists
(“CIH”) or an otherwise qualified mold consultant (generally, “Mold Inspector”)
to conduct the inspection; and
(c) Cause
such Mold Inspector to:
(i) Obtain
or
maintain errors and omissions insurance coverage with terms and limits
customarily maintained by Mold Inspectors, adding Landlord as an additional
insured with respect to Landlord’s vicarious liability, and provide to Landlord
evidence of such coverage and a copy of the endorsement granting Landlord
additional insured status;
(ii) Perform
the inspection in a manner that is strictly confidential and consistent with
the
duty of care exercised by a Mold Inspector; and
(iii) Prepare
an inspection report, keep the results of the inspection report confidential,
and promptly provide a copy to Landlord.
Section
18.3 Remediation
of Mold.
In
the
event the inspection required by Section 18.2 determines that mold or Mold
Conditions are present at the Leased Premises, and (A) the source of the Mold
Conditions (i.e. the source of the moisture causing the Mold Conditions) is
not
from the exterior of the Leased Premises or (B) the Mold Conditions have
increased or come into existence due to Tenant’s failure to properly monitor the
Leased Premises in accordance with Section 18.1, then
(a) Tenant,
at its sole cost and expense, shall promptly;
(i) Hire
trained and experienced mold remediation contractors to prepare a remediation
plan and to remediate the mold or Mold Conditions at the Leased
Premises;
(ii) Send
Landlord notice, in writing, with a copy of the remediation plan, at least
five
days prior to the mold remediation, stating:
| (A) |
The
date on which the mold remediation shall
start;
|
| (B) |
Which
portion of the Leased Premises shall be subject to the
remediation;
|
| (C) |
The
name, address, and telephone number of the certified mold remediation
contractors performing the
remediation;
|
| (D) |
The
remediation procedures and standards to be used at the Leased
Premises;
|
| (E) |
The
clearance criteria to be employed at the conclusion of the remediation;
and
|
| (F) |
The
date the remediation will conclude;
|
(iii) Notify,
in accordance with any applicable state or local health or safety requirements,
its employees as well as occupants and visitors of the Leased Premises of the
nature, location, and schedule for the planned mold remediation;
(iv) Ensure
that the mold remediation is conducted in accordance with the relevant
provisions of the document Mold
Remediation in Schools and Commercial Buildings
(EPA
402-K-01-001, March 2001) (“EPA Guidelines”), published by the U.S.
Environmental Protection Agency, as may be amended or revised from time to
time,
or any other applicable, legally binding federal, state, or local laws,
regulatory standards or guidelines; and
(v) Provide
Landlord with a draft of the mold remediation report and give Landlord a
reasonable opportunity to review and comment thereon, and when such report
is
finalized, promptly provide Landlord with a copy of the final remediation
report.
In
the
event (A) the inspection required by Section 18.2 determines that mold or Mold
Conditions are present at the Leased Premises, (B) the source of the Mold
Conditions (i.e. the source of the moisture causing the Mold Conditions) is
from
the exterior of the Leased Premises, and (C) the Mold Conditions have not
increased nor come into existence due to Tenant’s failure to properly monitor
the Leased Premises in accordance with Section 18.1, then Landlord shall perform
the obligations of Tenant set forth in subsection (a) above, at Landlord's
sole
cost and expense.
Article
19 Telecommunications
Use
Section
19.1 Telecommunications
Equipment and Systems.
(a) Installation
of Telecommunications Equipment.
During
the Lease Term, Tenant shall have the right, subject to the requirements of
this
Article 19 and other provisions of this Lease, to install telecommunications
equipment and systems on up to two hundred (200) noncontiguous square feet
of
the roof of the Building (which areas Tenant may cage or otherwise
secure) without
charge for the purposes of serving customers, interfacing with satellite
services and for placement of other transmission and reception facilities.
In
addition, Tenant shall have the right to install Local Multipoint Distribution
(LMDS) transmission equipment that will consist of: (i) hub site antenna(s);
(ii) GPS dish(es); and/or (iii) customer premise equipment (CPE) dish(es).
This
equipment and any other telecommunications equipment installed by Tenant is
hereinafter collectively referred to as the "Telecommunications Equipment".
Tenant shall submit for Landlord's review and approval, which shall not be
unreasonably withheld, conditioned or delayed, detailed plans and specifications
relative to the installation of the Telecommunications Equipment and the
location of any such additional Telecommunications Equipment if located outside
of the Leased Premises, specifying the size, number, amount and design of each
item of Telecommunications Equipment.
(b) Maintenance
of Telecommunications Equipment.
Tenant
shall at all times maintain the Telecommunications Equipment, including all
cabling and wiring, in good condition and repair, and in strict compliance
with
all applicable law. Tenant represents and warrants that throughout the Lease
Term, Tenant shall procure, obtain and maintain, at Tenant's sole cost and
expense, all material licenses, permits and approvals required under applicable
law for the exercise of Tenant’s rights under this Article 19.
(c) Tenant
shall not exercise its rights under this Article 19 in any way that interferes
with the use of the Building or Park by Landlord and tenants or licensees of
Landlord leasing or licensing space in the Park. The operation of the
Telecommunications Equipment shall not interfere with the maintenance or
operation of the Building or the Park, including but not limited to, the other
permitted rooftop equipment, or any other system or equipment serving the
Building or Park and/or its occupants. Tenant shall indemnify, defend, and
hold
harmless Landlord and its officers, directors, members, managers, employees,
contractors and representatives from all injuries,
costs, expenses, liabilities, losses, damages, injunctions, suits, actions,
fines, penalties, and demands of any kind or nature (including reasonable
attorneys' fees)
arising
from any such interference. Tenant shall be responsible for all costs associated
with any reasonable tests necessary to resolve any and all interference caused
by Tenant as set forth in this Agreement. All operations by Tenant shall be
lawful and in compliance with all FCC rules and regulations and applicable
law.
Landlord reserves the right to lease and/or license other portions of the Park
to other parties for telecommunications transmitting or receiving sites during
the term of this Lease, provided, however, that Landlord shall require any
such
future lessee or licensee of telecommunications transmitting or receiving sites
to not interfere with the use or operation of any of Tenant's then existing
Telecommunications Equipment.
(d) Conditions
of Installation.
Tenant
shall comply with applicable laws relating to the installation, operation,
maintenance, modification, replacement and removal of the Telecommunications
Equipment and will pay all costs and expenses relating to the same, including
the cost of obtaining and maintaining any necessary permits or approvals for
the
same in compliance with applicable laws. The installation, operation and
maintenance of the Telecommunications Equipment at the Building shall not
materially adversely affect the structure or operating systems of the
Building.
(e) Indemnification.
Tenant
agrees to indemnify, defend, and hold harmless Landlord, its officers,
directors, members, managers, employees, contractors and representatives from
and against any and all injuries,
costs, expenses, liabilities, losses, damages, injunctions, suits, actions,
fines, penalties, and demands of any kind or nature (including reasonable
attorneys' fees)
arising
out of Tenant's installation, operation, maintenance, modification, repair,
or
removal of the Telecommunications Equipment, except to the extent any such
liability, expense, loss or damage results from the gross negligence or willful
misconduct of Landlord or its officers, directors, members, managers, employees,
contractors or representatives. Tenant’s obligations set forth in this Section
19.1(e) shall survive the expiration or earlier termination of this
Lease.
(f) Supplemental
HVAC.
Tenant
shall have the right to install independent supplemental air conditioning
system(s) within the Leased Premises, which may require the installation of
equipment (dry coolers, chillers, etc.) on the roof or otherwise upon the
Building Premises and the connection of such equipment to the Leased Premises
with appropriate conduits, pipes, wiring and cabling, subject to applicable
law
and Landlord's prior review and approval of detailed plans and specifications
therefore. Landlord’s approval shall not be unreasonably withheld or delayed.
Upon the expiration or earlier termination of this Lease, Tenant shall remove
the independent supplemental air conditioning system and all equipment and
appurtenances thereof if so directed by Landlord.
(g) Rooftop
Installation.
All
rooftop installations shall be consistent with governmental codes and shall
be
installed in a manner so as not to impact any warranties in effect on the roof
membrane. Tenant shall have the right to perform an infrared and structural
inspection of the roof to insure its integrity.
Section
19.2 Fiber
Access.
Tenant
shall have the right to bring fiber optic cable at the street level into the
Building from three (3) separate and diverse points. Landlord will cooperate
with Tenant, at Tenant’s sole cost and expense, to permit Tenant to expand fiber
capacity as needed for its business during the Lease Term. Tenant will not
incur
any additional fees from the Landlord for fiber access. The fiber optic cable
and other equipment installed pursuant to this Section 19.2 shall be
characterized as “Telecommunications Equipment” and shall be subject to the
requirements set forth in Section 19.1.
Section
19.3 Co-Location.
Tenant
shall have the right to allow customers ("Providing Parties") to install
equipment ("Providing Parties' Equipment") which is related to Tenant's
equipment in a secure area and/or on a rack within up to forty percent (40%)
of
the Leased Premises consistent with the permitted use by Tenant of the Leased
Premises. Such co-location shall not be considered an assignment or sublease
by
Tenant, shall not grant any such Providing Parties any possessory interest
in
the Leased Premises, and, as between Landlord and Tenant, any right, and
liabilities with respect to the Providing Parties or Providing Parties'
Equipment shall be the sole responsibility of Tenant, including, without
limitation, the movement thereof in and out of the Leased Premises and the
insurance and security therefore, in the same manner and to the same extent
as
if the Providing Parties were Tenant and Providing Parties' Equipment belonged
to Tenant. Tenant shall retain all profits that arise out of co-location within
the Leased Premises. With respect to any Providing Parties or Providing Parties'
Equipment, the following shall apply:
(a)
Landlord's liabilities and obligations with respect to the Providing Parties
and
Providing Parties' Equipment shall only be those of Landlord to Tenant pursuant
to and accordance with this Lease, and Landlord shall not have any liability
or
obligation, nor shall the Providing Parties have any rights or claims against
Landlord, with respect to the locating, presence or removal of the Providing
Parties or Providing Parties' Equipment in or with respect to the Leased
Premises. Tenant shall indemnify, defend and hold harmless Landlord and its
officers, directors, members, managers, and employees (the "Indemnified Party")
from and against any and all injuries,
costs, expenses, liabilities, losses, damages, injunctions, suits, actions,
fines, penalties, and demands of any kind or nature (including reasonable
attorneys' fees),
including without limitation, claims of Providing Parties or other third parties
relative to the co-location of Tenant's customers, except to the extent same
is
caused by the negligence or misconduct of the Indemnified Party.
(b) This
section shall not create any additional rights of Tenant or Providing Parties,
or liabilities of Landlord not expressly provided for in this Lease, under
or
with respect to Providing Parties or Providing Parties' Equipment.
(c) Any
use
of the Leased Premises or roof by the Providing Parties, or location of any
Providing Parties’ equipment on the Leased Premises or roof, shall be subject to
the same provisions, as to termination of possession, removal of property or
otherwise, as apply to Tenant under and in accordance with the provisions of
the
Lease. All equipment placed upon the Leased Premises or roof by a third party
customer shall remain the personal property of the third party customer, and
Landlord shall have no liability to third party customers for, and Tenant shall
indemnify, defend, and hold harmless Landlord and its officers, directors,
members, managers, employees, contractors and representatives against, any
and
all injuries,
costs, expenses, liabilities, losses, damages, injunctions, suits, actions,
fines, penalties, and demands of any kind or nature (including reasonable
attorneys' fees)
arising
from the presence of the Providing Parties’ Equipment in, on or about the Leased
Premises or roof (except to the extent same is caused by the negligence or
misconduct of the Indemnified Party), and if the Tenant's rights to possession
have been terminated, Tenant shall cause the third party customer to remove
the
equipment within fifteen (15) business days of receipt of notice from Landlord,
and repair any damage caused by said removal. Tenant shall in all events be
responsible for the cost of such removal and any injury or damage to the Leased
Premises sustained by reason thereof.
(d) Subject
to the right of Tenant and the Providing Parties to have access to the Park
24
hours per day, seven days per week, the access rights of the Providing Parties
shall be subject to reasonable security measures in place at the Building and/or
the Park from time to time and all Providing Parties shall comply with the
reasonable rules and regulations promulgated by Landlord, including, without
limitation, any construction rules for the Building or the Park.
(e) All
costs
and expenses incurred in connection with the installation, maintenance and
operation of Providing Parties' Equipment at the Leased Premises shall be borne
by Tenant at no expense to Landlord.
The
provisions of this Article 19 shall survive the expiration or earlier
termination of this Lease.
Article
20 Storage
Space
During
the 6-month period beginning on the Commencement Date (the “Storage Space
Term”), Tenant shall have the right to use the space shown on Exhibit “A” (the
“Storage Space”), which shall consist of at least 5,000 contiguous square feet,
for the storage and staging of equipment at no cost to Tenant other than the
payment of the utilities for such space. During the time the Storage Space
is
being used by Tenant, the Storage Space shall be considered part of the “Leased
Premises”, and all provisions of this Lease (including, but not limited to, the
insurance and indemnification provisions) shall apply to the Storage Space.
Notwithstanding the previous sentence, the area of the Storage Space shall
not
be considered a part of the Leased Premises during the Storage Space Term for
purposes of determining Tenant’s Share of Building Premises Expenses and Park
Expenses. If Tenant desires to use the Storage Space for more than the Storage
Space Term, Tenant shall have the right to use the Storage Space for up to
an
additional six (6) months (the “Extended Storage Space Term”). However, upon
commencement of the Extended Storage Space Term,
| (a) |
Landlord
shall have an ongoing right to relocate the Storage Space to other
space
in the Park upon thirty (30) days notice to
Tenant;
|
| (b) |
Tenant
shall pay Landlord Minimum Annual Rent on the Storage Space in an
amount
equal to Eight and 00/100 Dollars ($8.00) per square foot;
and
|
| (c) |
the
area of the Storage Space shall be considered a part of the Leased
Premises for purposes of determining Tenant’s Share of Building Premises
Expenses and Park Expenses.
|
Article
21 [Reserved]
Article
22 Miscellaneous
Section
22.1 Benefit
of Landlord and Tenant.
This
Lease and all of the terms and provisions hereof shall inure to the benefit
of
and be binding upon Landlord and Tenant and their respective successors and
assigns.
Section
22.2 Governing
Law.
This
Lease shall be governed in accordance with the laws of the State of
Michigan.
Section
22.3 Force
Majeure.
Landlord
and Tenant shall be excused for the period of any delay in the performance
of
any obligation hereunder, excluding payments due Landlord from Tenant, when
such
delay is occasioned by causes beyond its control, including, but not limited
to,
war, invasion or hostility; work stoppages, boycotts, slowdowns or strikes;
shortages of materials, equipment, labor or energy; man-made or natural
casualties; unusual weather conditions; acts or omissions of governmental or
political bodies; or civil disturbances or riots.
Section
22.4 Condition
of Premises.
Tenant
acknowledges that neither Landlord nor any agent of Landlord has made any
representation or warranty with respect to the Leased Premises, the Building
Premises or the Common Areas or with respect to the suitability or condition
of
any part thereof for the conduct of Tenant's business except as provided in
this
Lease.
Section
22.5 Examination
of Lease.
Submission
of this instrument for examination or signature to Tenant does not constitute
a
reservation of or option for Lease, and it is not effective as a Lease or
otherwise until execution by and delivery to both Landlord and
Tenant.
Section
22.6 Indemnification
for Leasing Commissions.
The
parties hereby represent and warrant that the only real estate brokers involved
in the negotiation and execution of this Lease are those named in the Basic
Lease Provisions and that no other broker or person is entitled to any leasing
commission or compensation as a result of the negotiation or execution of this
Lease. Each party shall indemnify, defend, and hold harmless the other from
any
and all liability for the breach of this representation and warranty on its
part
and shall pay any compensation to any other broker or person who may be deemed
or held to be entitled thereto. Landlord will not pay a broker commission to
any
broker representing Tenant for any extension of the Lease Term and/or expansion
of the Leased Premises.
Section
22.7 Quiet
Enjoyment.
If
Tenant
shall perform all of the covenants and agreements herein provided to be
performed by Tenant, Tenant shall, at all times during the Lease Term, have
the
quiet enjoyment and peaceful possession of the Leased Premises without hindrance
from Landlord or any persons lawfully claiming under Landlord.
Section
22.8 Severability
of Invalid Provisions.
If
any
provision of this Lease shall be held to be invalid, void or unenforceable,
the
remaining provisions hereof shall not be affected or impaired, and such
remaining provisions shall remain in full force and effect.
Section
22.9 Representations
and Warranties.
Tenant
represents and warrants to Landlord that (i) Tenant is duly organized, validly
existing and in good standing in accordance with the laws of the state under
which it was organized; (ii) all action necessary to authorize the execution
of
this Lease has been taken by Tenant; and (iii) the individual executing and
delivering this Lease on behalf of Tenant has been authorized to do so, and
such
execution and delivery shall bind Tenant. Tenant, at Landlord's request, shall
provide Landlord with evidence of such authority.
Section
22.10 Survival.
Unless
otherwise stated, all obligations of Landlord and Tenant intended to survive
the
expiration or earlier termination of this Lease shall survive.
Section
22.11 Financial
Statements.
During
the Lease Term and any extensions thereof, Tenant shall provide to Landlord
on
an annual basis, within ninety (90) days following the end of Tenant's fiscal
year, a copy of Tenant's most recent financial statements prepared as of the
end
of Tenant's fiscal year. Such financial statements shall be signed by Tenant
or
any authorized officer or representative of Tenant who shall attest to the
truth
and accuracy of the information set forth in such statements. All financial
statements provided by Tenant to Landlord hereunder shall be prepared in
conformity with generally accepted accounting principles.
However,
notwithstanding the foregoing, so long as Tenant is subject to the reporting
requirements of the Securities Exchange Act of 1934 and has filed its reports
required thereunder, Tenant shall be deemed to be in compliance with this
Section 22.11, and shall not be required to deliver any financial statements
to
Landlord.
Section
22.12 Preparation
of Lease.
This
Lease shall not be construed more strictly against one party than against the
other, merely by virtue of the fact that it may have been prepared by counsel
for one of the parties, it being recognized that both Landlord and Tenant have
contributed substantially and materially to the preparation of this
Lease.
Section
22.13 Abandonment.
Tenant’s
abandonment or vacation of the Leased Premises shall not be construed as a
Default so long as Tenant continues to pay rent.
Section
22.14 Security
Systems.
Tenant
shall have the right to install security systems to protect its technical areas.
Except in the event of imminent danger to property or health, under no
circumstance will Landlord or any of its representatives be granted permission
to enter any technical areas without being accompanied by an authorized Tenant
representative.
Section
22.15 Construction
Allowance.
Landlord
shall pay Tenant Five Thousand and 00/100 Dollars ($5,000.00) as a construction
allowance (the "Construction Allowance") on the date thirty (30) days after
the
later of (i) the date upon which Tenant completes the demolition of the interior
partitioning in the Leased Premises or (ii) the date Tenant delivers to Landlord
final mechanic's and materialmen's lien waivers for such demolition work and
receipts evidencing that an amount equal to or greater than the amount of the
Construction Allowance has been spent by Tenant for such
demolition.
IN
WITNESS WHEREOF, the parties hereto have executed this Lease the day and year
first above written.
|
LANDLORD: TENANT
Southfield
TechneCenter RE 1 LLC,
a
Michigan limited liability company
By: Southfield
TechneCenter
Manager
Corporation,
its
Manager
By:
/s/ Xxxxxxx X. Xxxxxx
Xxxxxxx
X. Xxxxxx
Its:
Director of Asset Management
Date:
2/24/03
|
TENANT
Talk
America Inc.,
a
Pennsylvania corporation
By:
/s/Xxxxxxxx X. Lawn IV
Printed:
Xxxxxxxx X. Lawn IV
Title:
EVP - General Counsel
Date:
2/19/03
|
|
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Exhibit
“A”
Plan
of Leased Premises
Exhibit
“B”
Building
and Park
Exhibit
“C”
Rules
and
Regulations
1. The
sidewalks, entrances, passages, vestibules, corridors or halls shall not be
obstructed or used for any purpose other than ingress and egress.
2. No
awnings or other projections shall be attached to the outside walls of the
Building. All electric ceiling fixtures hung in offices or spaces along the
perimeter of the Building must be fluorescent, of a quality, type, design and
bulb color approved by Landlord. Neither the interior nor the exterior of any
windows shall be coated or otherwise sun screened without the written consent
of
Landlord.
3. No
sign,
advertisement, notice or handbill shall be exhibited, distributed, painted
or
affixed by any tenant or any person acting with a tenant’s consent on, about or
from any part of the Leased Premises or the Building without the prior written
consent of Landlord. In the event of the violation of the foregoing by any
tenant, Landlord may remove or stop same without any liability, and may charge
the expense incurred in such removal or stopping to the tenant in addition
to
any remedies available under the Lease. Standard signs on doors and directory
sign shall be inscribed, painted or affixed for each tenant by Landlord, and
shall be of a size, color and style acceptable to Landlord.
4. The
sashes, sash doors, windows, and doors that reflect or admit light and air
into
halls and passageways in the Building shall not be covered or obstructed by
any
tenant.
5. The
water
and wash closets and other plumbing fixtures shall not be used for any purpose
other than those for which they were constructed, and no sweeping, rubbish,
rags, or other substances shall be thrown therein. All damages resulting from
any misuse of the fixtures shall be borne by the tenant who, or whose
subtenants, assignees or any of their servants, employees, agents, visitors
or
licensees shall have caused the same.
6. No
tenant
shall xxxx, paint, drill into, or in any way deface any part of the Building.
No
boring, cutting or stringing of wires or laying of any type of floor covering
or
wall covering shall be permitted without first obtaining Landlord’s written
permission. Such approval shall not be unreasonably withheld.
7. No
birds
or animals of any kind shall be brought into or kept in or about the Leased
Premises, and no cooking shall be done or permitted by any tenant on the Leased
Premises, except that the preparation of coffee, tea, hot chocolate and similar
items for tenants and their employees shall be permitted provided power shall
not exceed that amount which can be provided by a 20 amp circuit. No tenant
shall cause or permit any objectionable odors to be produced in or permeate
from
the Leased Premises.
8. The
Leased Premises shall not be used for manufacturing or for the storage of
merchandise except as such storage and/or manufacturing may be incidental to
the
permitted use of the Leased Premises. No tenant shall occupy or permit any
portion of the Leased Premises to be occupied as an office for the manufacture
or sale of liquor, narcotics, or tobacco in any form, or as a medical office,
or
as a xxxxxx, or as an employment bureau, without the express written consent
of
Landlord. The Leased Premises shall not be used for lodging or sleeping or
for
any immoral, illegal or unsafe purpose.
9. No
tenant
shall make, or permit to be made any unseemly or disturbing noises or disturb
or
interfere with occupants of this or neighboring buildings or premises or those
having business with them, whether by the use of any musical instrument, radio,
phonograph, unusual noise, or in any other way.
10. No
tenant, subtenant or assignee nor any of its servants, employees, agents,
visitors or licensees, shall at any time bring or keep upon the Leased Premises
any flammable, combustible or explosive fluid, chemical or
substance.
11. No
additional locks or bolts of any kind shall be placed upon any of the doors
or
windows by any tenant, nor shall any changes be made in existing locks or
mechanism thereof. Each tenant must, upon the termination of his tenancy,
restore to Landlord all keys of stores, offices, and toilet rooms, either
furnished to, or otherwise procured by, such tenant and in the event of the
loss
of keys so furnished, such tenant shall pay to Landlord the cost of replacing
the same or of changing the lock or locks opened by such lost key if Landlord
shall deem it necessary to make such changes. Landlord shall reserve the right
to make all keys for the Leased Premises at a cost of $5 per key, and Tenant
shall not allow any other keys to the Leased Premises to be made by any other
person.
12. Landlord
reserves the right to exclude from the Building all safes, freight or other
bulky articles which violate any of these Rules and Regulations or the lease
of
which these Rules are a part.
13. Landlord
shall have the right to prohibit any advertising by any tenant which, in
Landlord’s opinion tends to impair the reputation of the Building or its
desirability as an office location, and upon written notice from Landlord any
tenant shall refrain from or discontinue such advertising.
14. Each
tenant shall be responsible for all persons entering the Leased Premises or
the
associated common areas at the tenant’s invitation, express or implied. Landlord
shall in no case be liable for damages for any error with regard to the
admission to or exclusion from Southfield TechneCenter of any person. In case
of
an invasion, mob riot, public excitement or other circumstances rendering such
action advisable in Landlord’s opinion, Landlord reserves the right without any
abatement of rent to require all persons to vacate the Leased Premises and
associated common areas and to prevent access to the Park during the continuance
of the same for the safety of the tenants and the protection of the Leased
Premises, the building or associated common areas.
15. Any
persons employed by any tenant to do janitorial work shall, while in and outside
of the Leased Premises, be subject to and under the control of direction of
Landlord (but not if an agent or servant of said superintendent or of Landlord),
and tenant shall be responsible for all acts of such persons.
16. Canvassing,
soliciting and peddling in Southfield TechneCenter are prohibited, and each
tenant shall report and otherwise cooperate to prevent the same.
17. All
office equipment of any electrical or mechanical nature shall be placed by
a
tenant in the Leased Premises in settings which will, to the maximum extent
possible, absorb or prevent any vibration, noise and annoyance.
18. No
air
conditioning unit or similar apparatus shall be installed or used by any tenant
without the written consent of Landlord.
19. The
scheduling of tenant move-ins and move-outs shall be subject to the reasonable
discretion of Landlord.
20. Landlord
and its agents may retain a passkey to the Leased Premises and shall have the
right to enter the Leased Premises at any and all times for the purpose of
servicing, repairing and examining the same and for all other purposes provided
in the Lease.
21. Landlord
reserves the right to make such other and further Rules and Regulations as
in
its judgment may from time to time be needful and proper; and upon delivery
of
the same to a tenant, such rules shall become binding upon the parties
hereto.
22. The
Building is a non-smoking facility. Neither Tenant nor Tenant's employees,
invitees, guests, agents, sublessees, or assigns may smoke within the Premises
or the Building.
Exhibit
“D”
Approved
Alterations
None.
