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Deed of Lease |
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2000 |
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#400332 |
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DEED OF LEASE
FOR
WAREHOUSE SPACE
_________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
ARTICLE PAGE
{S} {C}
1. DEFINITIONS......................................................... 1
2. TERM................................................................ 6
3. CONDITION OF PREMISES............................................... 7
4. RENT................................................................ 8
5. ADDITIONAL RENT..................................................... 10
6. USE................................................................. 12
7. CARE OF PREMISES.................................................... 12
8. ALTERATIONS BY TENANT............................................... 12
9. EQUIPMENT........................................................... 13
10. OWNERSHIP AND REMOVAL OF PROPERTY................................... 14
11. LANDLORD'S ACCESS TO PREMISES....................................... 15
12. SERVICES AND UTILITIES.............................................. 15
13. RULES AND REGULATIONS............................................... 17
14. REPAIR OF DAMAGE CAUSED BY TENANT: INDEMNIFICATION................. 17
15. LIMITATION ON LANDLORD LIABILITY.................................... 18
16. FIRE AND OTHER CASUALTY............................................. 18
17. TENANT INSURANCE.................................................... 19
18. CONDEMNATION........................................................ 21
19. DEFAULT............................................................. 21
20. NO WAIVER........................................................... 26
21. HOLDING OVER........................................................ 26
22. SUBORDINATION....................................................... 26
{/TABLE}
{PAGE}
{TABLE}
{S} {C}
23. ASSIGNMENT AND SUBLETTING.................................... 27
24. TRANSFER BY LANDLORD......................................... 29
25. INABILITY TO PERFORM......................................... 29
26. ESTOPPEL CERTIFICATES........................................ 30
27. COVENANT OF QUIET ENJOYMENT.................................. 30
28. WAIVER OF JURY TRIAL......................................... 30
29. BROKERS...................................................... 30
30. CERTAIN RIGHTS RESERVED BY LANDLORD.......................... 30
31. NOTICES...................................................... 31
32. MISCELLANEOUS PROVISIONS..................................... 32
A. Benefit and Burden................................... 32
B. Governing Law........................................ 32
C. No Partnership....................................... 32
D. Delegation by Landlord............................... 32
E. Tenant Responsibility for Agents..................... 32
F. Invalidity of Particular Provisions.................. 32
G. Counterparts......................................... 32
H. Entire Agreement..................................... 33
I. Amendments........................................... 33
J. Mortgagee's Performance.............................. 33
K. Limitation on Interest............................... 33
L. Remedies Cumulative.................................. 33
M. Annual Financial Statements.......................... 33
33. LENDER APPROVAL.............................................. 33
34. PARKING...................................................... 33
35. SECURITY DEPOSIT............................................. 33
36. HAZARDOUS MATERIALS.......................................... 35
37. RELOCATION OF TENANT......................................... 37
38. MEMORANDUM OF LEASE.......................................... 37
39. ANTENNA LICENSE.............................................. 37
40. OPTIONS TO EXTEND............................................ 39
{/TABLE}
{PAGE}
{TABLE}
{S} {C}
41. CROSS-DEFAULT............................................ 40
SIGNATURES.................................................... 1
{/TABLE}
Exhibit A - Premises Plan
Exhibit B - Declaration of Acceptance
Exhibit C - Cold Dark Shell Condition Specifications
Exhibit D-1 - Rules and Regulations
Exhibit D-2 - Declaration of Protective Covenants [*]
Exhibit E - Parking
Exhibit F - Description of the Land
Exhibit G - Special Tenant Requirements
Exhibit H - Tenant's Financial Statement
Exhibit I - Form of Memorandum of Lease
Exhibit J - Form of Nondisclosure Agreement
Exhibit K - Form of Escrow Agreement
_______________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
iii
{PAGE}
[*]
===
DEED OF LEASE
THIS DEED OF LEASE (the "Lease") is made and entered into this 1st day
of July, 2000, by and between TRIZECHAHN [*] LLC, a Delaware limited liability
company ("Landlord") and EQUINIX, INC., a Delaware corporation ("Tenant").
In consideration of the Rent hereinafter reserved and the agreements
hereinafter set forth, Landlord and Tenant mutually agree as follows:
1. DEFINITIONS. Except as otherwise expressly provided or unless the context
otherwise requires, the following terms shall have the meanings assigned to them
in this Section:
A. Alterations: Any improvements, alterations, fixed decorations or
modifications, structural or otherwise, to the Premises, the Building or the
Land, as defined below, including but not limited to the installation or
modification of carpeting, partitions, counters, doors, air conditioning ducts,
plumbing, piping, lighting fixtures, wiring, hardware, locks, ceilings and
window and wall coverings.
B. Building: The building located at [*] in Ashburn, Virginia, in the
===
Park (as hereinafter defined) in which the Premises are located. Except as
expressly indicated otherwise, the term "Building" shall include all portions of
said building, including but not limited to the Premises and the common areas of
said building.
C. Consumer Price Index (Regular and Base): [Intentionally omitted.]
D. Default Rate: That rate of interest which is [*] percentage points
===
above the annual rate of interest which is publicly announced by Bank of America
or its successor entity, if applicable ("Bank of America"), from time to time as
its "prime" rate of interest, irrespective of whether such rate is the lowest
rate of interest charged by Bank of America to commercial borrowers. In the
event that Bank of America ceases to announce such a prime rate of interest,
Landlord, in Landlord's reasonable discretion, shall designate the prime rate of
interest by another bank located in the Washington, D.C. metropolitan area,
which shall be the prime rate of interest used to calculate the default rate.
E. Fiscal Year: Each consecutive twelve (12) month period during the Term
of this Lease that commences on January 1 and concludes on December 31
inclusive.
F. Ground Leases: All ground and other underlying leases from which
Landlord's title to the Land and/or the Building is or may in the future be
derived. "Ground Lessors" shall denote those persons and entities holding such
ground or underlying leases.
______________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
{PAGE}
G. Holidays: New Year's Day, Presidents' Day, Martin Luther King, Jr.'s
Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veteran's
Day, Thanksgiving Day, Christmas Day and any other holidays designated by an
executive order of the President of the United States or by Act of Congress.
H. Land: The real estate that supports the Building as more fully
described on Exhibit F attached hereto and made a part hereof, and all
associated easements.
I. Park Common Areas: All areas, improvements, facilities and equipment
from time to time designated by Landlord for the common use or benefit of
Tenant, other tenants of the Building or the Park and their agents, including,
without limitation, roadways, entrances and exits, landscaped areas, open areas,
park areas, exterior lighting, service drives, loading areas, pedestrian
walkways, sidewalks, atriums, courtyards, concourses, stairs, ramps, washrooms,
maintenance and utility rooms and closets, exterior utility lines, hallways,
lobbies, elevators and their housing and rooms, common window areas, common
walls, common ceilings, common trash areas and parking facilities.
J. Landlord's Work: All work to be performed by Landlord as set forth on
Exhibit C attached hereto and made a part hereof.
K. Lease Commencement Date: The date this Lease commences, as determined
pursuant to Subsection 2.A. below.
L. Lease Year: That period of twelve (12) consecutive calendar months
that commences on the first day of the calendar month in which the Lease
Commencement Date occurs, and each consecutive twelve (12) month period
thereafter. The earliest such twelve (12) month period shall be referred to as
the "first Lease Year," and each of the following Lease Years shall similarly be
numbered for identification purposes.
M. Mortgages: All mortgages, deeds of trust and similar security
instruments which may now or in the future encumber or otherwise affect the
Building or the Land, including mortgages related to both construction and
permanent financing. "Mortgagees" shall denote those persons and entities
holding such mortgages, deeds of trust and similar security instruments.
N. Park Common Area Maintenance Expenses: All costs and expenses incurred
by Landlord during any Fiscal Year in owning, managing, operating and
maintaining the Park Common Areas, as determined by Landlord in accordance with
an accounting system established and regularly applied by Landlord. Such costs
and expenses shall include, but not be limited to the cost of insurance for the
Building and the Park; labor costs (including social security taxes and
contributions and fringe benefits); charges under maintenance and service
contracts (including but not limited to chillers, boilers, elevators, window and
security services); the cost of water, gas, sanitary sewer, storm sewer,
electricity, and other utilities to Park Common Areas; the cost of services to
Park Common Areas and facilities and systems related thereto (including but not
limited to, paving and parking areas, lighting and sound facilities, storm and
sanitary drainage systems, utility conduits, systems and ducts, fire protection
systems, sprinkler systems, security systems, Building signs, whether or not
located on the Land, retaining walls, curbs,
2
{PAGE}
gutters, fences, sidewalks, canopies, steps, ramps, grass, trees and shrubbery),
which services may include, among other things, ice and snow removal, lighting,
cleaning, landscaping, gardening, sweeping, painting, and resurfacing; that
portion of management fees which does not exceed three percent (3%) of the
aggregate gross revenues received by Landlord from the Park from all sources;
business taxes, license fees, public space and vault rentals and charges;
assessments imposed by any association now or hereafter established to maintain
the Park Common Areas (including, but not limited to, assessments imposed by any
association with respect to the Park); and the cost of any equipment or services
provided by Landlord in connection with the servicing, operation, maintenance
repair and protection of the Park Common Areas and related exterior
appurtenances (whether or not provided on the Lease Commencement Date). Park
Common Area Maintenance Expenses shall include the cost of capital improvements
made by Landlord to manage, operate or maintain the Park Common Areas together
with any financing charges incurred in connection therewith, provided that such
costs shall be amortized over the useful life of the improvements and only the
portion attributable to the Fiscal Year shall be included in Park Common Area
Maintenance Expenses for the Fiscal Year; further provided, that such
expenditures shall be (a) limited to those replacements of Park components
(other than buildings) with other Park components (other than buildings) which
serve similar purposes and which are reasonably necessary to keep the Park in
good repair, in Landlord's reasonable judgment, and which will not change the
character of the Park, (b) improvements or Park components (other than
buildings) added to the Park which in Landlord's reasonable judgment will
increase the efficiency of the Park (i.e., are reasonably anticipated by
Landlord to reduce Park Common Area Maintenance Expenses as they relate to the
item which is the subject of the capital expenditure or to reduce the rate of
increase in the Park Common Area Maintenance Expense which relates to the item
which is the subject of the capital expenditure from what it otherwise may have
been reasonably anticipated to be in the absence of such capital expenditure),
and (c) improvements or replacements which are required to comply with the
requirements of any laws, regulations or insurance or utility company
requirements, except for conditions existing in violation thereof on the Lease
Commencement Date. Common Area Maintenance Expenses shall not include (i) Real
Estate Tax Expenses, (ii) payments of principal and interest on any Mortgages,
(iii) leasing commissions, (iv) costs of preparing, improving or altering any
spaces in preparation for occupancy of any new or renewal tenant, (v) costs
incurred by Landlord on account of utilities, char services or other services
attributable to space occupied by any tenant of the Building, (vi) the cost of
damage and repairs necessitated by the gross negligence or willful misconduct of
Landlord or of Landlord's agents and employees, (vii) any cost or expense
incurred by reason of the remediation or clean-up of any contamination of the
Building, the Land or the Park, or the soils or ground water underlying the
Building, the Land or the Park, by hazardous materials or toxic substances to
the extent that either (A) such contamination existed prior to the Lease
Commencement Date and was not caused by Tenant or any of its employees, agents
or contractors, or (B) such contamination arose on or after the Lease
Commencement Date and was caused by any other tenant of the Park or by Landlord
or any of its employees, agents or contractors, (viii) overhead costs and profit
increment paid to subsidiaries or affiliates of Landlord for services on or for
the Building, the Land or the Park, to the extent only that the cost of such
services exceed the competitive costs of such services were they not so rendered
by a subsidiary or affiliate of Landlord, (ix) any deductible on Landlord's
insurance policy in excess of Fifty Thousand Dollars ($50,000.00), (x) the
costs, including permit, license and inspection costs, incurred with respect to
the construction of the Building,
3
{PAGE}
(xi) the cost of any services provided to other tenants of the Park which are
not made available to Tenant, (xii) legal fees, brokerage commissions,
advertising costs, or other related expenses incurred in connection with the
leasing of the Building or the Park or associated with monetary disputes with
tenants or other occupants of the Building or the Park or with the enforcement
of any monetary provision of any lease or defense of Landlord's title to or
interest in the Building or the Park or any part thereof, (xiii) except to the
extent allocable to the Park, salaries of personnel to the extent that such
personnel perform services other than in connection with the management,
operation, repair or maintenance of the Building, the Land or the Park, and
(xiv) Landlord's general corporate overhead and general and administrative
expenses not related to the Building, the Land or the Park.
O. Park: That certain business park located in Ashburn, Virginia known as
[*] which as of the date of this Lease contains approximately [*] rentable
=== ===
square feet in six (6) buildings, known as [*] and [*], Ashburn, Virginia.
===
P. Premises: [*] square feet of rentable area on the first (1st) floor of
===
the Building, including, but not limited to, the roof of the Building, as shown
on the floor plan attached hereto as Exhibit A. However, the area and plan of
the Premises may change in the event of the exercise of any option to expand or
contract the Premises set forth in this Lease. The rentable area of the Premises
has been determined in accordance with the Greater Washington Commercial
Association of REALTORS7 Standard Method of Measurement dated June 13, 1995 (the
"GWCAR Standard Method of Measurement"). Tenant shall have the option,
exercisable by written notice to Landlord within thirty (30) days following the
Lease Commencement Date, to verify the rentable area of the Premises by having
the Premises remeasured by Tenant's architect in the manner provided for in the
GWCAR Standard Method of Measurement (the "Tenant's Remeasurement"). If the
rentable area of the Premises resulting from the Tenant's Remeasurement is
within two percent (2%) of the rentable area of the Premises as stated above
(the "Stated Area"), the rentable area of the Premises shall be equal to the
Stated Area. If the Tenant's Remeasurement is not within two percent (2%) of the
Stated Area, Landlord and Tenant shall negotiate in good faith for ten (10) days
to attempt to reach agreement as to the rentable area of the Premises. If within
such 10-day period the parties have not mutually agreed on the rentable area of
the Premises, then within five (5) days following such 10-day period Landlord's
architect and Tenant's architect shall jointly appoint a third architect. The
third architect shall independently make his determination of the rentable area
of the Premises within ten (10) days after his appointment. The highest and the
lowest measurements among the three (3) architects shall be disregarded and the
remaining determination shall be deemed to be the rentable area of the Premises.
Each party shall pay for the cost of its architect and one-half of the cost of
the third architect. In the event that Landlord's architect and Tenant's
architect do not agree on a third architect within such 10-day period, the
dispute shall be resolved by arbitration in accordance with the then prevailing
Commercial Rules of the American Arbitration Association. For purposes of this
Section 1.P., an "architect" shall mean an architect certified by The American
Institute of Architects and licensed or registered to practice architecture in
the Commonwealth of Virginia.
__________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
4
{PAGE}
If the rentable area of the Premises as determined above is not within
two percent (2%) of the Stated Area, then within fifteen (15) days after final
determination of the rentable area of the Premises, Landlord shall prepare, and
Landlord and Tenant shall each promptly execute, an amendment to this Lease
pursuant to which the Base Rent, Tenant's Share of Park Common Area Maintenance
Expenses and Tenant's Share of Real Estate Tax Expenses and any other affected
provisions of this Lease are recalculated to reflect such increase or decrease
in the rentable area of the Premises, which amendment shall be effective
retroactive to the Lease Commencement Date.
Q. Premises' Standard Electrical Capacity: [Intentionally omitted.]
R. Real Estate Tax Expenses: All taxes and assessments, general or
special, ordinary or extraordinary, and foreseen or unforeseen, that are
assessed, levied or imposed upon the Park, including, but not limited to, the
Building and the Land, under any current or future taxation or assessment system
or modification of, or supplement or substitute for, such system, whether or not
based on or measured by the receipts or revenues from the Park (including all
taxes and assessments for public improvements or any other purpose and any gross
receipts or similar taxes). Real Estate Tax Expenses also shall include all
reasonable expenses incurred by Landlord in obtaining or attempting to obtain a
reduction of any such taxes, rates or assessments, including but not limited to
legal fees, but shall not include any taxes on Tenant's Personal Property or
other tenants' personal property, which taxes are the sole obligation of each
tenant.
S. Rent: All Base Rent and Additional Rent.
(1) Base Rent: The amount payable by Tenant pursuant to Subsection
4.A. below.
(2) Additional Rent: All sums of money payable by Tenant pursuant to
this Lease other than Base Rent.
(3) Monthly Rent: A monthly installment of Base Rent and Additional
Rent, if any, which shall equal one-twelfth (1/12th) of Base Rent and Additional
Rent then in effect.
T. Tenant's Personal Property: All Alterations, equipment, improvements,
furnishings and/or other property now or hereafter installed or placed in or on
the Premises by and at the sole expense of Tenant or with Tenant's permission
(other than any property of Landlord), with respect to which Tenant has not been
granted any credit or allowance by Landlord, and which: (i) is removable without
damage to the Premises, the Building and the Land, unless such damage is
repaired by Tenant at its sole cost and expense, and (ii) is not a replacement
of any property of Landlord, whether such replacement is made at Tenant's
expense or otherwise.
U. Tenant's Share:
(1) Tenant's Share of Park Common Area Maintenance Expenses shall be
that percentage of Park Common Area Maintenance Expenses which is equal to the
number of square
5
{PAGE}
feet of rentable area in the Premises divided by the total number of square feet
of rentable area in the Park ([*] on the Lease Commencement Date). As of the
Lease Commencement Date, Tenant's Share of Park Common Area Maintenance Expenses
shall be [*] percent ([*] %).
(2) Tenant's Share of Real Estate Tax Expenses shall be that
percentage of Real Estate Tax Expenses which is equal to the number of square
feet of rentable area in the Premises divided by the total number of square feet
of rentable area in the Park ([*] on the Lease Commencement Date). As of the
Lease Commencement Date, Tenant's Share of Real Estate Tax Expenses shall be [*]
percent ([*] %).
(3) Tenant's Share of Park Common Area Maintenance Expenses and
Tenant's Share of Real Estate Tax Expenses shall change any time the number of
square feet of rentable area leased hereunder by Tenant or the number of square
feet of rentable area in the Park increases or decreases.
V. Unavoidable Delay: Any delays due to strikes, labor disputes,
shortages of material, labor or energy, acts of God, governmental restrictions,
enemy action, civil commotion, fire, unavoidable casualty or any other causes
beyond the control of Landlord.
W. Work Agreement: [Intentionally omitted.]
2. TERM.
A. Term of Lease: The term of this Lease (the "Term") shall commence on a
date (the "Lease Commencement Date"), as defined below, and shall terminate at
midnight on May 31, 2010, or such earlier date on which this Lease is terminated
pursuant to the provisions hereof (the "Lease Expiration Date"). The Lease
Commencement Date shall be the earlier of (a) that date on which Landlord
notifies Tenant that the Premises is in "substantially complete" Cold Dark Shell
Condition (as hereinafter defined), as certified by Landlord's architect based
upon practices as are detailed by The American Institute of Architects, or (b)
the date on which Tenant commences the construction or installation of any
leasehold improvements in the Premises or stores any equipment in the Premises;
provided, however, in the event that Tenant requests that Landlord perform
Additional Tenant Work, as hereinafter defined, or if Landlord's delivery of the
Premises to Tenant in "substantially complete" Cold Dark Shell Condition, as
hereinafter defined, is delayed due to any Tenant Delay, as hereinafter defined,
then the Lease Commencement Date shall be the earlier of (i) July 1, 2000 or
(ii) the date on which Landlord permits Tenant to commence the construction or
installation of any leasehold improvements in the Premises or to store any
equipment in the Premises. Landlord hereby leases the Premises to Tenant and
Tenant hereby leases the Premises from Landlord for the Term. Landlord shall
deliver the Premises to Tenant in "substantially complete" Cold Dark Shell
Condition (as hereinafter defined), as certified by Landlord's architect based
upon practices as are detailed by The American Institute of Architects.
Landlord shall use reasonable efforts to substantially complete
Landlord's Work on or before July 1, 2000. However, Landlord shall in no event
be liable or subject to any claim
______________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
6
{PAGE}
for failure to substantially complete Landlord's Work by such date or for delay
or inability to deliver possession of the Premises to Tenant for any reason.
Notwithstanding anything contained herein to the contrary, if Landlord shall be
delayed in substantially completing Landlord's Work as a result of:
(a) Tenant's failure to furnish to Landlord, on or before the
dates reasonably requested by Landlord, the information, requirements and/or
approvals for any work to be done hereunder;
(b) Tenant's request for changes in any plans subsequent to
March 20, 2000;
(c) Tenant's failure to approve the plans, specifications or
cost estimates for Additional Tenant Work (as hereinafter defined) or make any
payment within the time required under Section 3 hereof;
(d) Tenant's request for materials, finishes or installations
other than Landlord's Park standard;
(e) The result of Tenant's or its agents' or employees' acts,
failure to act, or failure to act in a timely manner;
(f) Landlord's provision for Tenant's contractor to commence
Tenant's initial buildout of the Premises prior to completion of Landlord's Work
pursuant to the Cold Dark Shell Specifications; or
(g) Delays caused by coordination of Additional Tenant Work and
delivery of the Cold Dark Shell Specifications (items set forth in clauses (a)
through (g) of this sentence being referred to herein individually and
collectively as "Tenant Delay");
then, solely for the purposes of determining the commencement date of Tenant's
liability for Base Rent and other charges under this Lease, such Tenant Delay
shall neither postpone the Lease Commencement Date nor the date of substantial
completion by Landlord of the Premises.
B. Declarations: If requested by Landlord at any time during the Term,
Tenant promptly will execute a declaration in the form attached hereto as
Exhibit B.
C. Effective Date: The rights and obligations set forth in this Lease,
except for the obligation to pay Rent and as otherwise specifically provided
herein to the contrary, shall become effective on the date of final execution of
this Lease.
3. CONDITION OF PREMISES. Landlord shall deliver the Premises to Tenant in a
"Cold Dark Shell Condition", which shall be in accordance with the
specifications set forth on Exhibit C (the "Cold Dark Shell Specifications").
Except as set forth in Exhibit C attached hereto, Landlord shall have no
obligation to make any improvements or alterations to the Premises.
If Tenant shall desire any work to be performed by Landlord in the
Premises, other than Landlord's Work, that is, any work not contained in the
Cold Dark Shell
7
{PAGE}
Specifications ("Additional Tenant Work"), then (i) such Additional Tenant Work
shall be subject to Landlord's sole and absolute discretion, (ii) Landlord shall
cooperate with Tenant in order to obtain the approval of the [*] Owners
Association, Inc. (the "[*] Association") with respect to Additional Tenant
Work, if such approval is required pursuant to Section 8.A. hereof, and (iii)
all Additional Tenant Work shall be performed at Tenant's sole cost and expense,
including, but not limited to, the costs incurred by Landlord relating to
attempts to obtain the approval of such Additional Tenant Work by the [*]
Association, if any. Tenant shall pay the full amount of the costs thereof to
Landlord, as Additional Rent hereunder, as follows: Not later than three (3)
business days following Tenant's receipt from Landlord of written notice of the
cost of the Additional Tenant Work (the "Additional Tenant Work Cost"), Tenant
shall deposit in escrow with Commercial Settlements, Inc. ("CSI") the full
amount of the Additional Tenant Work Cost as set forth in Landlord's notice.
Such amount deposited in escrow, or such lesser amount as remains therein after
disbursements therefrom, is hereinafter referred to as the "Additional Tenant
Work Cost Escrow". At each time that a portion of the Additional Tenant Work has
been substantially completed, Landlord shall have the right to request from
Tenant that Tenant authorize the disbursement from the Additional Tenant Work
Cost Escrow of such portion of the Additional Tenant Work Cost as is allocable
to such portion of the Additional Tenant Work, which request shall be made in
writing and accompanied by copies of the relevant disbursement request from the
contractor(s) or supplier(s) requesting such disbursement. Within three (3)
business days following receipt of Landlord's request for approval by Tenant of
a disbursement from the Additional Tenant Work Cost Escrow, Tenant shall either
notify Landlord of any objections thereto or approve such request in writing,
which approval shall not be unreasonably withheld, conditioned or delayed. In
the event that Tenant does not approve a disbursement request, CSI shall not
disburse the funds to Landlord, and Tenant shall indemnify Landlord against, and
hold Landlord harmless from, any and all losses, costs, damages, liabilities,
claims of action and expenses (including, but not limited to, late charges,
penalties, reasonable costs and reasonable attorneys' fees) incurred by Landlord
as a result, direct or indirect, of Tenant's failure to timely approve a
disbursement request. The Additional Tenant Work Cost Escrow shall be handled
and disbursed in accordance with an Escrow Agreement by and among Tenant,
Landlord and CSI in the form attached hereto as Exhibit K and made a part
hereof.
4. RENT. From and after the Lease Commencement Date, Tenant shall pay to
Landlord such Base Rent and Additional Rent as are set forth in this Section 4
and in Section 5 below.
______________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
8
{PAGE}
A. Base Rent: Base Rent shall equal: The following amounts:
{TABLE}
{CAPTION}
Monthly Base Rent Base Rent
Time Period Per Square Foot Per Annum Base Rent
-------------------------------------- --------------- ---------------- ----------------
{S} {C} {C} {C}
Lease Commencement Date-May 31, 2001 $[*] $[*] $[*]
June 1, 2001-May 31, 2002 $[*] $[*] $[*]
June 1, 2002-May 31, 2003 $[*] $[*] $[*]
June 1, 2003-May 31, 2004 $[*] $[*] $[*]
June 1, 2004-May 31, 2005 $[*] $[*] $[*]
June 1, 2005-May 31, 2006 $[*] $[*] $[*]
June 1, 2006-May 31, 2007 $[*] $[*] $[*]
June 1, 2007-May 31, 2008 $[*] $[*] $[*]
June 1, 2008-May 31, 2009 $[*] $[*] $[*]
June 1, 2009-May 31, 2010 $[*] $[*] $[*]
{/TABLE}
Tenant shall pay Base Rent to Landlord in equal monthly installments ("Monthly
Base Rent") in advance on the first day of each calendar month during the Term,
without notice, except that the first monthly installment of Base Rent shall be
paid upon execution of this Lease. If the Lease Commencement Date occurs on a
date other than the first day of a calendar month, Tenant shall receive a credit
equal to the Monthly Base Rent multiplied by the number of days in said calendar
month prior to the Lease Commencement Date and divided by the number of days in
such month, which credit shall be applied toward the installment of Monthly Base
Rent next due hereunder. If the Lease Expiration Date occurs after the
expiration of the last numbered Lease Year set forth above in this Section 4.A.
for which an amount of Monthly Base Rent is specified, then Monthly Base Rent
shall continue to be payable by Tenant at such rate for each month or portion of
a month thereafter which is prior to the Lease Expiration Date.
B. Payment: All Base Rent and Additional Rent due and payable to Landlord
under this Lease shall be made payable to TrizecHahn Centers, Inc. dba
TrizecHahn [*] Corporate Management and delivered to TrizecHahn Centers,
Inc. dba TrizecHahn [*] Corporate Management at Bank of America, P.O. Box
#631577, Baltimore, MD 21263-1577. Payments of Rent (other than in cash), if
initially dishonored, shall not be considered rendered until ultimately honored
as cash by Landlord's depository. Except as expressly set forth otherwise in
this Lease, Tenant will pay all Rent to Landlord without demand, deduction, set-
off or counter-claim.
C. Late Fee: If Tenant fails to make any payment of Rent on or before the
date when payment is due, then Tenant also shall pay to Landlord a late fee
equal to [*] percent ([*] %) of the amount that is past due for each month or
part thereof until such Rent is fully paid; provided, however, that, if, during
each of the first three (3) Lease Years, Tenant has made all
______________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
9
{PAGE}
payments of Rent on or before the date when such payments are due and payable
hereunder, then, commencing on the first day of the fourth (4th) Lease Year and
continuing for the remainder of the Term, in lieu of the foregoing, the late fee
provided for in this Section 3.C. shall not be assessed unless Tenant fails to
make full payment of Rent within five (5) days after the day on which such
payment is due. Said late fee shall be deemed reimbursement to Landlord for its
costs of carrying and processing Tenant's delinquent account. Acceptance by
Landlord of said late fee shall not waive or release any other rights or
remedies to which Landlord may be entitled on account of such late payment.
D. Arbitration: Any statement provided to Tenant by Landlord pursuant to
Section 5 below shall be conclusive and binding upon Tenant unless, within
thirty (30) days after receipt thereof, Tenant notifies Landlord of the respects
in which the statement is claimed to be incorrect. Unless otherwise mutually
agreed, any such dispute shall be determined by arbitration in the jurisdiction
in which the Premises are located, in accordance with the then current
commercial rules of the American Arbitration Association. The costs of the
arbitration shall be divided equally between Landlord and Tenant, except that
each party shall bear the cost of its own legal fees, unless (i) the arbitration
results in a determination that Landlord's statement contained a discrepancy of
less than five percent (5%) in Landlord's favor, in which event Tenant shall
bear all costs incurred in connection with such arbitration, including, without
limitation, reasonable legal fees, or (ii) the arbitration results in a
determination that Landlord's statement contained a discrepancy of at least five
percent (5%) in Landlord's favor, in which event Landlord shall bear all costs
incurred in connection with such arbitration, including, without limitation,
reasonable legal fees. Pending determination of any dispute, Tenant shall pay
all amounts due pursuant to the disputed statement, but such payments shall be
without prejudice to Tenant's position. Upon at least fifteen (15) days notice
to Landlord, Tenant shall have reasonable access during normal business hours
and at Tenant's expense, to appropriate books and records of Landlord relating
to the amount of expenses covered by the disputed statement, for the purpose of
verifying the statement. Any such review shall be made only by Tenant's
employees and/or by an auditor hired by Tenant who is a Certified Public
Accountant and who is employed on other than a contingent fee basis.
5. ADDITIONAL RENT.
A. To Cover Consumer Price Index Increases: [Intentionally omitted.]
B. To Cover Park Common Area Maintenance Expenses and Real Estate Tax
Expenses: In addition to all other Rent set forth herein, for each Fiscal Year,
Tenant shall pay to Landlord as Additional Rent an amount equal to the sum of
Tenant's Share of Park Common Area Maintenance Expenses and Tenant's Share of
Real Estate Tax Expenses; provided, however, that for the Fiscal Years during
which the Term begins and ends, Tenant's Share of the aforesaid sum shall be
prorated based upon the greater of: (i) the number of days during such Fiscal
Year that this Lease is in effect, or (ii) the number of days that Tenant
actually occupies the Premises or any portion thereof.
C. Statements:
(1) [Intentionally omitted.]
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(2) For each Fiscal Year, Landlord shall deliver to Tenant a
statement estimating Tenant's Share of Park Common Area Maintenance Expenses and
Tenant's Share of Real Estate Tax Expenses for such Fiscal Year, which Tenant
shall pay in equal monthly installments in advance on the first day of each
calendar month during each Fiscal Year. Tenant shall continue to pay such
estimated Tenant's Share of Park Common Area Maintenance Expenses and Tenant's
Share of Real Estate Tax Expenses until Tenant receives the next such statement
from Landlord, at which time Tenant shall commence making monthly payments
pursuant to Landlord's new statement. With the first payment of Monthly Base
Rent which is due at least fifteen (15) days after Tenant's receipt of a
statement from Landlord specifying estimated Tenant's Share of Park Common Area
Maintenance Expenses and Tenant's Share of Real Estate Tax Expenses payable
during the Fiscal Year, Tenant shall pay the difference between its monthly
share of such sums for the preceding months of the Fiscal Year and the monthly
installments which Tenant has actually paid for said preceding months.
D. Retroactive Adjustments: After the end of each Fiscal Year, Landlord
shall determine and shall provide to Tenant a statement of Tenant's Share of
Park Common Area Maintenance Expenses and Tenant's Share of Real Estate Tax
Expenses for the Fiscal Year. Within thirty (30) days after delivery of any such
statement, Tenant shall pay to Landlord any deficiency between the amount shown
as Tenant's Share of Park Common Area Maintenance Expenses and Tenant's Share of
Real Estate Tax Expenses for the Fiscal Year and the estimated payments made by
Tenant. Tenant shall be credited with any excess estimated payments toward
payments by Tenant of its share of estimated Tenant's Share of Park Common Area
Maintenance Expenses and Tenant's Share of Real Estate Tax Expenses, or if the
Term has expired, Landlord shall refund such amount to Tenant within thirty (30)
days following the date of issuance of Landlord's statement, provided that
Tenant is not then in default under this Lease, or if Tenant is then in default
under this Lease, such refund shall be made within thirty (30) days following
the date that such default is cured.
E. Change In or Contest of Taxes: In the event of any change by any
taxing body in the period or manner in which any of the Real Estate Tax Expenses
are levied, assessed or imposed, Landlord shall have the right, in its sole
discretion, to make appropriate adjustments with respect to computing increases
in Real Estate Tax Expenses. Real Estate Tax Expenses which are being contested
by Landlord shall be included in computing Tenant's Share of Real Estate Tax
Expenses under this Section, but if Tenant shall have paid Rent on account of
contested Real Estate Tax Expenses and Landlord thereafter receives a refund of
such taxes, Tenant shall receive a credit toward subsequent estimated payments
in an amount equal to Tenant's Share of such refund.
F. Sales, Use or Other Taxes: If during the Term any governmental
authority having jurisdiction over the Building or the Land levies, assesses or
imposes any tax on Landlord, the Premises, the Building, the Land or the Rent
payable hereunder, in the nature of a sales tax, use tax or any tax except (i)
taxes on Landlord's income, (ii) estate or inheritance taxes, or (iii) Real
Estate Tax Expenses, then Tenant shall pay its proportionate share to Landlord
within fifteen (15) days after receipt by Tenant of notice of the amount of such
tax.
11
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6. USE.
A. Permitted Use: Tenant shall use and occupy the Premises solely for
general office use and as a telecommunications service center with related legal
uses, and for no other purpose.
B. Legal and Other Restrictions of Tenant's Use: In its use of the
Premises, Tenant shall comply with all present and future laws, regulations
(including but not limited to fire and zoning regulations) and ordinances of all
other public and quasi-public agencies having jurisdiction over the Land or the
Building. Tenant shall not use the Park, the Land, the Building or use or occupy
the Premises for any unlawful, disorderly or hazardous purposes or in a manner
which will interfere with the rights of Landlord, other tenants or their
invitees or in any way injure or annoy any of them; Landlord acknowledges that
Tenant's permitted uses as set forth in Section 6.A. above which are in
accordance with the provisions of this Lease and all applicable laws and
governmental regulations shall not be deemed to cause such interference.
Notwithstanding the foregoing, Tenant shall not be responsible for (i) any such
noncompliance of the Cold Dark Shell Condition existing on the Lease
Commencement Date, (ii) making any Alterations to the Premises, except to the
extent that such Alterations are required either due to Tenant's particular use
of the Premises, due to Alterations made by Tenant within the Premises, or due
to any requirements of applicable law or any governmental requirements, or (iii)
any remediation of Hazardous Materials (as hereinafter defined), except to the
extent caused by Tenant or any of its employees, agents or contractors.
7. CARE OF PREMISES. Tenant shall at its expense keep the Premises (including
all improvements, fixtures and other property located therein) in a neat and
clean condition and in good order and repair, and will suffer no waste or injury
thereto. Tenant shall surrender the Premises at the end of the Term in as good
order and condition as they were in on the Lease Commencement Date, ordinary
wear and tear excepted.
8. ALTERATIONS BY TENANT.
A. Making of Alterations; Landlord's Consent; [*] Association's Consent:
Tenant shall not make or permit to be made any Alterations without the prior
written consent of Landlord both as to whether the Alterations may be made and
as to how and when they will be made, which consent shall not be unreasonably
withheld or delayed with respect to any proposed Alteration which would not be
visible from outside of the Premises nor affect any of the structural components
of the Building; provided, however, that the consent of Landlord shall not be
required for (i) painting or carpeting of the Premises or (ii) Alterations
costing less than Fifty Thousand Dollars ($50,000) in the aggregate which are
not visible from outside of the Premises and which do not affect any of the
structural components of the Building; further provided, that Tenant shall give
Landlord at least ten (10) days' prior written notice of any such Alterations
not requiring Landlord's consent and Tenant shall observe all reasonable rules
and regulations promulgated by Landlord with respect to the performance of
Alterations. Any Alterations shall be made at Tenant's expense, by its
contractors and subcontractors and in accordance with
______________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
12
{PAGE}
complete plans and specifications approved in advance in writing by Landlord,
and only after Tenant: (i) has obtained all necessary permits from governmental
authorities having jurisdiction and has furnished copies thereof to Landlord,
(ii) has submitted to Landlord an architect's certificate that the Alterations
will conform to all applicable laws and regulations, and (iii) has complied with
all other requirements reasonably imposed by Landlord, including without
limitation any requirements due to the underwriting guidelines of Landlord's
insurance carriers. Landlord's consent to any Alterations and approval of any
plans and specifications constitutes approval of no more than the concept of
these Alterations and not a representation of warranty with respect to the
quality or functioning of such Alterations, plans and specifications. Tenant
shall be and is solely responsible for the Alterations and for the proper
integration thereof with the Building, the Building's systems and existing
conditions. Landlord shall have the right, but not the obligation, to supervise
the making of any Alterations. If any Alterations are made without the prior
written consent of Landlord or the [*] Association, if applicable, or which do
not conform to plans and specifications approved by Landlord or the [*]
Association, if applicable, or to other conditions imposed by Landlord or the
[*] Association , if applicable, and such nonconformity is not fully corrected
by Tenant within fifteen (15) days after notice from Landlord to Tenant or such
shorter notice period as Landlord, in good faith, reasonably believes to be
necessary in order to comply with the requirements of any applicable law,
governmental regulation or insurance company requirement, then Landlord may, in
its sole discretion, correct or remove such Alterations at Tenant's expense.
Following completion of any Alterations, at Landlord's request, Tenant either
shall deliver to Landlord a complete set of "as built" plans showing the
Alterations or shall reimburse Landlord for any expense incurred by Landlord in
causing the Building plans to be modified to reflect the Alterations. In
addition to the foregoing, any Alterations which are visible from outside of the
Premises are subject to the prior review and approval of the [*] Association,
which approval may be granted or denied in the sole and absolute discretion of
the [*] Association, and which approval Tenant is solely responsible for
obtaining.
B. No Liens: Tenant shall take all necessary steps to ensure that no
mechanic's or materialmen's liens are filed against the Premises, the Building
or the Land as a result of any Alterations made by the Tenant. If any mechanic's
lien is filed, Tenant shall discharge the lien within ten (10) days thereafter,
at Tenant's expense, by paying off or bonding the lien.
9. EQUIPMENT.
A. Permitted Equipment: With the exception of the items of equipment or
machinery which are reflected on Tenant's plans for Tenant's initial build-out
of the Premises, Tenant shall not install or operate in the Premises any
equipment or other machinery without: (i) obtaining the prior written consent of
Landlord, who may condition its consent upon the payment by Tenant of Additional
Rent for additional wiring or other expenses resulting therefrom, which consent
shall not be unreasonably withheld, conditioned or delayed, unless Landlord
determines, in its sole and absolute discretion, that such equipment or
machinery causes noise or vibration which would disturb any other tenant of the
Park, (ii) securing all necessary permits from governmental authorities and
utility companies and furnishing copies thereof to Landlord, and
______________________
*CONFIDENTIAL TREATMENT REQUESTED. CONFIDENTIAL PORTION HAS BEEN FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
13
{PAGE}
(iii) complying with all other requirements reasonably imposed by Landlord.
Tenant shall not install any equipment or machinery which may necessitate any
changes, replacements or additions to or material changes in the use of the
water system of the Building without obtaining the prior written consent of
Landlord, who may withhold its consent in its absolute discretion.
B. Payment For Excess Utility Usage: [Intentionally omitted.]
C. Noise; Vibration; Floor Load: Business machines and equipment
belonging to Tenant, which cause noise or vibration that may be transmitted to
any part of the Building to such a degree as to be objectionable to Landlord or
to any tenant of the Park, shall be installed and maintained by Tenant at
Tenant's expense on devices that eliminate the noise and vibration. Tenant shall
not place any load upon the floor of the Premises which exceeds the per square
foot load the floor was designed to carry (it being understood and agreed that
the floor is a six inch (6") slab with a capacity of two hundred fifty (250)
pounds per square foot ).
10. OWNERSHIP AND REMOVAL OF PROPERTY.
A. Landlord's Property: Any Alterations, including, but not limited to,
Additional Tenant Work and Tenant's initial buildout of the Premises, and other
improvements and any equipment, machinery, furnishings and other property,
installed or located in the Premises, the Building or the Land by or on behalf
of Landlord or Tenant, except for Tenant's Personal Property: (i) shall
immediately become the property of Landlord, and (ii) shall be surrendered to
Landlord with the Premises as a part thereof at the end of the Term; provided,
however, that if Landlord requests Tenant to remove any Alterations installed by
or on behalf of Tenant, Tenant shall cause the same to be removed at Tenant's
expense on or before the Lease Expiration Date, or shall reimburse Landlord for
the cost of such removal, as elected by Landlord (unless Landlord expressly
waives in writing the right to require such removal at the time Landlord give
its consent to the making of such Alterations). Notwithstanding the foregoing,
Tenant, upon submitting its request to Landlord to make Alterations, including,
but not limited to, Additional Tenant Work, shall have the right to request
therein that Landlord specify whether and to what extent Landlord will require
Tenant to remove the Alterations in question at the end of the Term, provided
that Tenant refers therein to the provisions of this Section 10.A. If Tenant
shall fail to request such information in its request to make any Alterations,
such right shall be deemed null and void as to the Alterations in question, and
all such Alterations shall thereafter be subject to the exercise of Landlord's
rights and to Tenant's obligations set forth in the first sentence of this
Section 10.A. If Tenant submits its request for such information in accordance
with the foregoing provisions and Landlord consents to the Alterations
requested, Landlord shall, together with its consent, specify in writing whether
and to what extent it will require Tenant to remove the Alterations in question
at the end of the Term, and if Landlord fails so to specify, Tenant shall have
no further obligation to remove the Alterations which were the subject of
Tenant's request.
B. Removal of Property At End of Term: Tenant shall remove all of
Tenant's Personal Property, and all computer cabling and wiring installed by or
on behalf of Tenant (irrespective of whether such cabling and wiring constitutes
Tenant's Personal Property under the terms of this Lease, and at Tenant's
expense, using a contractor approved in advance by Landlord in writing), from
the Building and the Land on or before the Lease Expiration Date. Any
14
{PAGE}
personal property belonging to Tenant or to any other person or entity which is
left in the Building or on the Land after the date this Lease is terminated for
any reason shall be deemed to have been abandoned. In such event, Landlord shall
have the right to store such property at Tenant's sole cost and/or to dispose of
it in whatever manner Landlord considers appropriate, without waiving its right
to claim from Tenant all expenses and damages caused by Tenant's failure to
remove such property, and Tenant and any other person or entity shall have no
right to compensation from or any other claim against Landlord as a result.
11. LANDLORD'S ACCESS TO PREMISES. Upon such notice as is reasonable under the
circumstances (which notice shall not be of less than forty-eight (48) hours,
except in an emergency, and which notice may be given orally), Landlord may at
any reasonable time enter the Premises to examine them, to make alterations or
repairs thereto or for any other purposes which Landlord considers necessary or
advisable; however, in the case of any emergency, Landlord and its agents may
enter the Premises at any time and in any manner. Tenant shall allow the
Premises to be exhibited by Landlord upon such notice as is reasonable under the
circumstances (which notice shall not be of less than forty-eight (48) hours and
which notice may be given orally): (i) at any reasonable time to representatives
of lending institutions or to prospective purchasers of the Building, and (ii)
at any reasonable time to persons who may be interested in leasing the Premises
during the last twelve (12) months of the Term. Landlord reserves the right and
shall be permitted reasonable access to the Premises to install facilities
within and through the Premises and to install and service any systems deemed
advisable by Landlord to provide services or utilities to any tenant of the
Building. Notwithstanding the foregoing, Landlord shall not enter the Premises
without being accompanied by a representative of Tenant; provided, however,
that, in consideration for such right granted to Tenant by Landlord, (i) Tenant
hereby authorizes Landlord and any of its employees, agents and contractors to
break any locks and the doors and walls to which locks are attached, if Landlord
deems such action necessary, and to enter the Premises without accompaniment by
Tenant's representative (a) in the event of an emergency, if Tenant's
representative is not reached immediately, or (b) in the event of the need to
make inspections, repairs, maintenance or improvements and Tenant's failure to
provide Landlord access to the Premises when requested by Landlord pursuant to
this Section 11, and (ii) Tenant hereby indemnifies Landlord (including its
shareholders, partners, members, employees, agents and contractors) against and
holds Landlord (including its shareholders, partners, members, employees, agents
and contractors) harmless from, any and all liabilities, losses, damages, causes
of action, suits, claims, demands, judgments, costs and expenses of any kind
(including court costs and reasonable attorneys' fees) asserted against Landlord
by any third party relating to or arising from or in connection with Landlord's
exercise of its rights under this sentence.
12. SERVICES AND UTILITIES.
A. Utilities Provided: Tenant will provide, at its expense, for the
separate metering of all utilities to be supplied to the Premises, and shall
contract directly with the appropriate public utility companies for the
supplying of all such utilities to the Premises. Tenant shall pay all submetered
utility charges to the appropriate utilities, as and when due. In the event the
Premises cannot be submetered for a particular utility, Landlord may, at its
option, cause a survey to be made by an independent electrical engineering or
consulting firm, at Tenant's expense, to measure Tenant's consumption of such
utility. For all utility consumption measured
15
{PAGE}
by survey, Tenant shall pay to Landlord, as Additional Rent, all sums necessary
to reimburse Landlord for its costs of providing such utilities, within ten (10)
days after Landlord submits to Tenant any statement setting forth such costs. It
is expressly understood that, in the event Tenant is unable to have the Premises
submetered for a particular utility, in lieu of causing a survey to be done,
Landlord shall have the option to charge Tenant for its equitable share of the
cost of such utility to all non-submetered rentable areas in the Building.
B. Right to Discontinue: [Intentionally omitted.]
C. No Liability: Except as otherwise specifically set forth herein,
Landlord shall have no liability to Tenant or others based on any failure by
Landlord to furnish any utilities and services to be furnished by Landlord
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