CONFIDENTIAL MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
Exhibit
10.1
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH
OMISSION
LEASE
BY
AND BETWEEN
TARANTULA
VENTURES LLC
AND
RACKSPACE
US, INC.
CH1 DATA
CENTER
▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH
OMISSION
LEASE
This
Lease (the “Lease”) is
made as of the 31st day of
July, 2009 (the “Lease
Commencement Date”) by and between Tarantula
Ventures LLC, a Delaware limited liability company (hereinafter referred
to as “Landlord”),
and Rackspace
US, Inc., a Delaware corporation (hereinafter referred to as “Tenant”).
RECITALS:
A. Landlord
has constructed a data center facility known as “▇▇▇ ▇▇▇▇▇
I”, located in ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ (the “Building”)
situated on certain real property owned by Landlord legally described on Exhibit A attached
hereto (the “Land”). The
Building and the Land shall constitute the “Property”.
B. CH1
Phase I contains approximately two hundred fifty-three thousand (253,000) gross
square feet, comprised in part of approximately one hundred twenty-one thousand
(121,000) square feet of raised floor area, and has 18.2 megawatts of Critical
Load Power (as defined in Section 13.2 below) available to it. The
raised floor space in ▇▇▇ ▇▇▇▇▇ I is divided into computer rooms of varying
sizes (each a “Pod”).
C. Adjoining
the Building is an office building (the “Office
Building”). Moreover, the Building and Land contain additional
space sufficient to construct another data center facility (“▇▇▇ ▇▇▇▇▇
II”) which Landlord (in its sole discretion) may, but shall be under no
obligation to, construct.
D. The
Tenant desires to lease a portion of the rentable area of said Building and a
portion of the rentable area of said Office Building, and Landlord is willing to
rent such portion of the rentable area of said Building and such portion of the
rentable area of said Office Building to Tenant, upon the terms, conditions,
covenants and agreements set forth herein.
Now,
Therefore, the parties hereto, intending to be legally bound, hereby
covenant and agree as follows:
ARTICLE
I
THE
PREMISES
1.1 Landlord
hereby leases and demises to Tenant and Tenant hereby leases and accepts from
Landlord, for the term and upon the terms and conditions hereinafter set forth,
the space in ▇▇▇ ▇▇▇▇▇ I designated on the floor plan attached hereto as Exhibit B as computer
rooms 1, 5, 6, 7 and 8 (“Pod 1”,
“Pod
5”, “Pod 6”,
“Pod
7”, and “Pod 8”,
respectively; each, a “Pod”;
collectively, the “Pods”). Pod
1 contains approximately two thousand seven hundred
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
(2,700)
rentable square feet of raised floor and each of ▇▇▇ ▇, ▇▇▇ ▇, ▇▇▇ ▇ and Pod 8
contains approximately eight thousand five hundred (8,500) rentable square feet
of raised floor. The Pods, together with the Office Space (defined
below) and the Storage Space (defined below) are hereinafter referred to as the
“Premises”. Subject
to the terms and provisions of Section V below, Tenant shall at all times
throughout the Lease Term, have access to the Premises twenty-four (24) hours
per day, seven (7) days per week.
1.2 Subject
to the terms of this Lease, Tenant shall also have the right to use the public
and common areas and facilities in the Building and the Office Building and on
the Land (the “Common
Areas”), including any lobby area, the loading dock and any other areas
devoted to the public such as corridors, fire vestibules, restrooms, janitor
closets and other similar facilities, and those areas of the Building and the
Office Building provided for use in common by Landlord and Tenant and other
tenants of the Building and Office Building, whether or not any such area is
open to the general public, but includes no other rights not specifically set
forth herein. In addition, Tenant shall have the right, to the extent
reasonably necessary in order for Tenant to use the Premises for Permitted Uses
(as defined in Section 6.1 below), upon request to Landlord whenever
practicable, (but in all cases subject to Landlord’s reasonable security
procedures), to access the telephone rooms located in the Building and the
Office Building. Tenant shall have the right to access the mechanical
and electrical rooms and closets located in the Building and the Office
Building, to the extent such access is reasonably necessary or desirable in
connection with Tenant’s use of the Premises for the Permitted Uses, subject to
Landlord’s approval, not to be unreasonably withheld or delayed and subject
further to Landlord’s reasonable security procedures.
1.3 Landlord
hereby leases to and demises to Tenant and Tenant hereby leases and accepts from
Landlord for the period beginning on the Rent Commencement Date and ending upon
the expiration of the Lease Term (defined below) (the “Office Space
Term”) and upon the terms and conditions hereinafter set forth, office
space in the Office Building consisting of approximately eight thousand four
hundred eighty-four (8,484) rentable square feet on the first floor of the
Office Building, as more particularly described on the floor plan attached
hereto as Exhibit
B-1 (the “Office
Space”). Tenant shall occupy the Office Space in two (2)
phases (“Office Space
Phase I” and “Office Space
Phase II”). It is anticipated that Office Space Phase I will
consist of approximately five thousand three hundred eighty-five (5,385)
rentable square feet and Office Space Phase II approximately three thousand
ninety-nine (3,099) rentable square feet, provided that the exact area of the
two phases shall be as mutually agreed between Landlord and Tenant within thirty
(30) days after the Lease Commencement Date. Provided Landlord
[*****] delivers the Office Space to Tenant as provided herein below, Tenant
shall be obligated to take occupancy of Office Space Phase I on the Rent
Commencement Date, and Office Space Phase II on the earlier to occur of (i)
[*****] or (ii) such earlier date as requested by Tenant upon one hundred twenty
(120) days advance written notice (the “Office Space
Phase II Notice”) to Landlord (“Office Space
Phase II Commencement Date”). Except as otherwise expressly
provided herein, the Office Space shall be considered a part of the Premises for
all purposes hereunder. [*****]. Notwithstanding anything
to the contrary contained herein, in the event Landlord does not deliver the
Office Space Phase I [*****] broom clean, with a security
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MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
access
card reader allowing entry only to persons on the Tenant Access List pursuant to
Article V below, on the Rent Commencement Date, then Tenant’s obligation to
commence paying Office Rent in accordance with Section 3.3 below shall be
delayed until the date on which Landlord delivers the Office Space Phase I to
Tenant as aforesaid. Further notwithstanding anything to the contrary
contained herein, in the event Landlord does not deliver the Office Space Phase
II [*****] broom clean, on the Office Space Phase II Commencement Date, then
Tenant’s obligation to commence paying full Office Rent in accordance with
Section 3.3 below [i.e., that portion of Office Rent allocable to Office Space
Phase II] shall be delayed until the date on which Landlord delivers the Office
Space Phase II to Tenant as aforesaid.
1.4 Landlord
hereby leases to and demises to Tenant and Tenant hereby leases and accepts from
Landlord for the period beginning on the Rent Commencement Date (“Storage Space
Commencement Date”) and ending upon the expiration of the Lease Term (the
“Storage
Space Term”), and upon the terms and conditions hereinafter set forth,
storage space in the Building consisting of Storage Room No. 1001-A (containing
approximately one thousand six hundred (1,600) square feet), as more
particularly described on the floor plan attached hereto as Exhibit B (the “Storage
Space”). Except as otherwise expressly provided herein, the
Storage Space shall be considered a part of the Premises for all purposes
hereunder. Notwithstanding anything to the contrary contained herein,
in the event Landlord does not deliver the Storage Space broom clean, with a
security access card reader allowing entry only to persons on the Tenant Access
List pursuant to Article V below, and with appropriate demising walls (walls
consist of coated and painted steel mesh), on the Storage Space Commencement
Date, then Tenant’s obligation to commence paying Storage Rent in accordance
with Section 3.3 below shall be delayed until the date on which Landlord
delivers the Storage Space to Tenant as aforesaid.
ARTICLE
II
TERM
2.1 Except as
otherwise set forth herein, all of the provisions of this Lease shall be in full
force and effect from and after the Lease Commencement Date. The term
of this Lease (hereinafter referred to as the “Lease
Term” or “Term”)
shall commence on the Rent Commencement Date, as determined pursuant to Section
2.2 below, and continue for a period of fifteen (15) years thereafter, unless
such Lease Term shall be extended, renewed or terminated earlier in accordance
with the provisions hereof. Notwithstanding the foregoing, if the
Rent Commencement Date shall occur on a day other than the first day of a month,
the Lease Term shall commence on such date and continue for the balance of such
month and for a period of fifteen (15) years thereafter. The term
“Lease
Term” shall include any properly exercised renewals and extensions of the
term of this Lease.
2.2 (a) The
“Rent
Commencement Date” shall be the earlier of (i) November 1, 2009 (the
“Anticipated Rent
Commencement Date”) or (ii) the date on which Tenant commences the
conduct of its business upon any portion of the Premises, but only with respect
to such portion. Landlord represents that as of the Lease
Commencement Date, the following items
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MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
have been
completed, obtained and/or are true, as applicable, and Landlord warrants and
covenants that the same will be completed, in effect and/or true, as applicable,
as of the Rent Commencement Date: (I) Landlord’s Work (as hereinafter
defined) [*****] has been substantially completed in accordance with Section 9.1
below; (II) all mechanical and electrical systems for each Pod, and all
components thereof, including, without limitation, power distribution units
(“PDUs”),
power distribution boards, computer room air conditioning units (“CRACs”)
and other components of the HVAC system, uninterruptible power systems (“UPSs”),
EPO kiosks, and back-up diesel engine generators (“Engine
Generators”), and the Security Systems (as hereinafter defined) and
Building Management System (as hereinafter defined), are in good working order;
(III) data center level 4 testing and level 5 commissioning have been completed
with respect to all mechanical and electrical systems for each Pod as certified
by EYP Mission Critical Facilities, the Building engineer; and (IV) a
certificate of occupancy and any other required occupancy and/or use permits
have been issued by ▇▇▇▇ County and/or such other applicable governmental
authority for the Building, including the Pods. For avoidance of
doubt, except as otherwise expressly provided in Section 2.4 below, the Early
Access (as hereinafter defined), the Electrical and Mechanical Systems Testing
(as hereinafter defined) and Tenant’s performance of Tenant’s Installations (as
hereinafter defined) shall not constitute the conduct of Tenant’s business upon
any portion of the Premises.
(b) [*****]. Notwithstanding
the foregoing, 5.633 megawatts of Critical Load Power will be available to the
Premises as of the Rent Commencement Date, and Tenant may use more than the
applicable Phase Load Limit, up to 5.633 megawatts, at any time during the Lease
Term, subject to and in accordance with the terms and provisions of this Section
2.2(b). [*****].
(c) Notwithstanding
anything to the contrary contained herein, in the event Landlord or an affiliate
of Landlord fails to complete Tenant’s Deployment Work to the extent required to
support the delivery of Phase 1 in accordance with Section 2.2(b) above on or
prior to the Anticipated Rent Commencement Date, then the Rent Commencement Date
shall be delayed until the date on which such condition is satisfied or
completed as provided herein. Notwithstanding the foregoing, if
Landlord shall be delayed in satisfying the condition set forth herein above as
a result of delays caused by Tenant, then, for purposes of determining when such
condition is satisfied, such condition shall be deemed satisfied on the date
such condition would have been satisfied absent any such Tenant-caused
delay. Within ten (10) days after the occurrence of a Tenant-caused
delay, Landlord shall notify Tenant in writing of such Tenant-caused
delay. If Landlord fails to so notify Tenant within said ten (10) day
period and such failure to notify continues for twenty (20) days thereafter,
then Landlord shall be deemed to have waived and excused any such Tenant-caused
delay.
(d) Promptly
after the Rent Commencement Date and the commencement of each subsequent Phase
are ascertained, Landlord and Tenant shall execute a written declaration setting
forth, as applicable, the Rent Commencement Date, the commencement date of each
subsequent Phase (subject to the provisions of Section 2.2(b) above), and the
date upon which
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CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
the Lease
Term and the applicable Phase will expire. The form of such
declaration is attached hereto as Exhibit C and made a
part hereof.
2.3 For purposes of this
Lease, the term “Lease
Year” shall mean either (a) if the Rent Commencement Date shall not occur
on the first day of a calendar month, each period of twelve (12) consecutive
calendar months commencing on the first day of the month immediately following
the month in which the Rent Commencement Date occurs, and on each anniversary of
such date, provided that the first Lease Year shall also include the period from
the Rent Commencement Date to the first day of the month immediately following
the Rent Commencement Date; or (b) if the Rent Commencement Date shall occur on
the first day of a calendar month, each period of twelve (12) consecutive
calendar months commencing on the Rent Commencement Date and on each anniversary
of such date, whichever is applicable.
2.4 Landlord
shall permit Tenant to enter the Premises starting on the Lease Commencement
Date (the “Early
Access”), in order to commence installation of racks, infrastructure,
furniture and other equipment in the Premises (“Tenant’s
Installations”) provided that, prior to commencing any such work in the
Premises, Tenant shall comply in all respects with the requirements of Article
IX below. In performing Tenant’s Installations during Tenant’s Early
Access, Tenant shall be permitted to use [*****] and normal, non-Critical Load
Power in the Premises, at its expense, for installation and
testing. Except as otherwise expressly provided herein below,
[*****], Tenant will be deemed to have commenced the conduct of its business for
purposes of subpart (ii) of the first sentence of Section 2.2(a) hereof,
provided, that Landlord shall not be required to give Tenant more than one (1)
such notice and opportunity to cure during Early Access. All terms
and conditions of this Lease, as executed, shall apply to Tenant’s Early Access,
[*****]. Notwithstanding anything to the contrary contained herein,
Landlord acknowledges and agrees that: (a) Tenant, at Tenant’s sole cost and
expense pursuant to a separate agreement between Tenant and DFTS (as hereinafter
defined), shall be permitted during the Early Access to perform certain testing
reasonably agreed to by Landlord, Tenant and DFTS, with respect to the
electrical and mechanical systems for the Building and the Pods (the “Electrical and
Mechanical Systems Testing”), and (b) the use of Critical Load Power,
including the use of [*****], in the Premises for any period of time in
connection with such Electrical and Mechanical Systems Testing shall not be
considered the conduct of Tenant’s business for purposes of subpart (ii) of the
first sentence of Section 2.2(a) above.
ARTICLE
III
BASE
RENT
3.1 Commencing
on the Rent Commencement Date, Tenant shall pay to Landlord as monthly base rent
(“Base
Rent”), net of all Operating Expenses (which term is defined in Section
4.2 below), without set off, deduction (unless otherwise expressly agreed to
herein) or demand, an amount equal to [*****] on the date that such monthly Base
Rent is due and payable subject to annual adjustment pursuant to Section 3.2
below. The monthly Base Rent payable hereunder shall be due and
payable in advance on the first day of each month. Payment of monthly
Base Rent for any fractional calendar month shall be
prorated. [*****].
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MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
3.2 The Base Rent Rate shall be escalated on
the first day of the second (2nd) Lease Year and each anniversary of such date
thereafter during the Lease Term (each, an “Escalation
Date”) by [*****].
3.3 Subject
to the terms and provisions of Section 1.3 above, commencing on later to occur
of (i) the Rent Commencement Date, or (ii) the date on which [*****], in
addition to the monthly Base Rent set forth in Section 3.1 above, Tenant shall,
subject to adjustment as set forth in Section 1.3 above [*****], pay to Landlord
monthly base rent in the amount of [*****] for the Office Space (the “Office
Rent”); provided, however, that subject to the terms and provisions of
Section 1.3 above, until the Office Space Phase II Commencement Date occurs
Tenant shall be obligated to pay only a pro-rata share of Office Rent based on
the ratio of the area of Office Space Phase I over the total area of the Office
Space. Subject to the terms and provisions of Section 1.4 above,
commencing on the Rent Commencement Date, Tenant shall pay to Landlord monthly
base rent in the amount of [*****] for the Storage Space (the “Storage
Rent”). The Office Rent and Storage Rent shall be due and
payable in advance of the first day of each month. The Office Rent
and Storage Rent shall be increased each Lease Year as and when Base Rent is
increased pursuant to Section 3.2 above. Payments of Office Rent
and/or Storage Rent for any fractional calendar month shall be
prorated.
3.4 All rent
shall be paid to Landlord in legal tender of the United States at the address to
which notices to Landlord are to be given or to such other address as Landlord
may designate from time to time by written notice to Tenant. If
Landlord shall at any time accept rent after it shall come due and payable, such
acceptance shall not excuse a delay upon subsequent occasions, or constitute or
be construed as a waiver of any of Landlord’s rights hereunder.
ARTICLE
IV
ADDITIONAL
RENT
4.1 From and
after the Rent Commencement Date, Tenant shall pay as additional rent, (i) its
Pro Rata Share of Operating Expenses (as defined in Section 4.2(a) below)
incurred each year in the operation of ▇▇▇ ▇▇▇▇▇ I and (ii) a management fee for
the management and operation of ▇▇▇ ▇▇▇▇▇ I equal to [*****] (the “Management
Fee”). Tenant’s “Pro Rata
Share” shall mean thirty and ninety-five one hundredths percent
(30.95%). Commencing on the Rent Commencement Date, [*****], Tenant
shall pay the Management Fee and Tenant’s Pro Rata Share of all Operating
Expenses for ▇▇▇ ▇▇▇▇▇ I with respect to the entire Premises
[*****]. If Landlord elects to ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ II and to operate
▇▇▇ ▇▇▇▇▇ I and ▇▇▇ ▇▇▇▇▇ II as an integrated facility, upon completion of ▇▇▇
▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇’s Pro Rata Share shall be reduced to the ratio of the Critical
Load Power available to the Premises compared to the Critical Load Power
available, in the aggregate, to both CH1 Phase I and ▇▇▇ ▇▇▇▇▇
II. [*****].
4.2 (a) “Operating
Expenses” shall, subject to the exclusions set forth below, mean and
include those direct reasonable expenses actually incurred (directly or
indirectly) by Landlord in operating and maintaining the Property (or any
portion thereof), but only to the extent directly attributable or reasonably
allocable to ▇▇▇ ▇▇▇▇▇ I calculated in accordance with
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MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
generally
accepted accounting principles and real property management practices, both
consistently applied, including the
following: [*****]. Notwithstanding the foregoing to the
contrary, Operating Expenses shall not include (i) the cost of any capital
improvement to the Property other than those included in clause (5) above; (ii)
expenses Landlord incurs in connection with leasing or procuring tenants or
renovating space for new or existing tenants, including brokerage commissions,
legal fees, lease concessions, rental abatements and construction allowances;
(iii) costs and fees including, without limitation, legal fees, incurred in
disputes with Tenant or other tenants at the Building, in connection with
enforcing leases at the Building and/or in connection with violations of laws by
Landlord with respect to the Property; (iv) interest or principal payments on
any mortgages or, subject to clause (5) above, other indebtedness of Landlord;
(v) ground lease payments; (vi) the cost of repairs or other work to the extent
Landlord is reimbursed by insurance (or would have been reimbursed had Landlord
maintained the insurance coverages required in Article 12 below) or condemnation
proceeds; (vii) costs incurred in connection with the sale, financing or
refinancing of the Building; (viii) organizational expenses associated with the
creation and/or operation of the ownership entity which constitutes Landlord;
(ix) Landlord’s administrative costs; (x) advertising, promotion, charitable and
tenant relations expenses; (xi) any amount for which Landlord receives payment
directly by a tenant or non-tenant other than as an Operating Expense; (xii) the
cost of correcting defects in the original construction or any renovation of the
Building; (xiii) the cost of maintaining, repairing and/or replacing the
foundation, roof, exterior walls and/or any other structural element of the
Building; (xiv) depreciation (except to the extent permitted in clause (5)
above); (xv) costs associated with the cleanup or removal of Hazardous Materials
that are in existence as of the Lease Commencement Date in violation of
applicable laws; and (xvi) costs for which Landlord is compensated by
warranties. For avoidance of doubt, Landlord and Tenant acknowledge
and agree that, other pursuant to Section 4.2(c) below, Operating Expenses shall
not include any costs or expenses associated with the Office
Building.
(b) “Taxes”
shall mean and include (i) all taxes on real property and personal property, ad
valorem taxes, surcharges, general and special assessments and impositions,
general and special, ordinary and extraordinary, foreseen or unforeseen, of any
kind levied or imposed upon Landlord, the Building or the Land, or assessed
against the Property or any machinery, equipment, fixtures or other personal
property of Landlord thereon or therein, or in connection with the use thereof
(including any transit, personal property, sales, rental, use, gross receipts
and occupancy tax and other similar charges); (ii) any other present or future
taxes or governmental charges which are imposed upon Landlord or assessed
against the Building or the Land, and which are in the nature of, or in
substitution for, real property taxes, including any tax levied on or measured
by rents payable by tenants of the Property, any public safety fee or similar
charge, any transit, sales, receipts, rental, use or occupancy tax or fee, and
any assessment imposed in connection with business improvement, transportation
or similar districts; (iii) any assessments against the Building or the Land, or
against Landlord with respect to the Building or the Land, by any association
now or hereafter established to administer, oversee or enforce common covenants
or other rules and regulations to which the Building, Land or common areas are
subject or to operate, maintain, repair or replace common or public areas or
facilities thereof; and (iv) all taxes which are imposed upon Landlord, and
which are assessed against the value of any
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COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
improvements
to the Premises made by Tenant or any machinery, equipment, fixtures or other
personal property of Tenant used therein. Notwithstanding anything to
the contrary contained herein, taxes shall not include any income taxes, excess
profits taxes, excise taxes, franchise taxes, estate taxes, inheritance taxes,
succession taxes, gains taxes, grantor’s taxes, recordation taxes and/or
transfer taxes, except to the extent such taxes fall within clause (ii)
above. If the Land and all buildings comprising the Complex are
assessed together, then the Taxes for ▇▇▇ ▇▇▇▇▇ I shall be a fraction of such
Taxes, such fraction to be based upon a fair and equitable allocation determined
in Landlord’s reasonable discretion. The tax and assessment bills
used in calculating Tenant's obligation attributable to Taxes in a given Lease
Year shall be those which become due for payment during such Lease Year, without
regard to the period for which the Taxes are levied or assessed and without
regard to whether or not the Lease was in existence during such
period. Landlord and Tenant agree and acknowledge that the Property
is located in ▇▇▇▇ County, Illinois, and that ▇▇▇▇ County real property taxes
are customarily billed and payable one (1) year in arrears. If
Landlord contests Taxes for any calendar year contained within the Lease Term
and such contest results in a decrease in Taxes for such calendar year, then
Landlord shall credit against the monthly installments of Base Rent next coming
due Tenant’s proportionate share of such refund, but only up to an amount equal
to the payment made by Tenant for such calendar year on account of
Taxes. If Landlord contests the Taxes for any calendar year and such
contest results in an increase in Taxes for such calendar year, Landlord shall
have the right to ▇▇▇▇ Tenant for prior underpayments of Taxes thereby
resulting. Landlord’s and Tenant’s obligations under this Section
4.2(b) shall survive the expiration or earlier termination of the Lease
Term.
(c) ▇▇▇ ▇▇▇▇▇
I is operated as part of a complex that includes: (i) the Office
Building; (ii) the Building; (iii) the portion of the structure, of which the
Building is a part, remaining for construction of CH1 Phase II; and
(iv) the vacant future development site located at the northwestern corner of
the Land (collectively the “Complex”). As
a result, there shall be included in Operating Expenses a fraction of Complex
Common Area Expenses, which fraction shall be based on a fair and equitable
allocation reasonably determined by Landlord. As used above, the term
“Complex
Common Area Expenses” shall mean those Operating Expenses incurred by
Landlord in owning, operating and/or managing the common areas of the Complex,
including common parking areas and facilities (as opposed to those Operating
Expenses related exclusively to CH1 Phase I), but only to the extent directly
attributable or reasonably allocable to CH1 Phase I.
(d) Notwithstanding
anything to the contrary contained herein, Landlord shall use commercially
reasonable efforts to minimize Operating Expenses without compromising the
integrity of the Building, the Premises or the services Landlord is required to
provide under the Lease. Furthermore, Landlord shall pay, promptly
when due, all Taxes relating to the Property.
4.3 If the
Lease Term commences or expires on a day other than the first day or the last
day of a calendar year, respectively, then Tenant’s Pro Rata Share of Operating
Expenses shall be apportioned so that Tenant shall pay Tenant’s Pro Rata Share
of Operating Expenses
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MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
attributable
to only that portion of such year as falls within the Lease
Term. This Section 4.3 shall survive the expiration or earlier
termination of this Lease.
4.4 In the
event the average occupancy rate for the entire Building shall be less than one
hundred percent (100%), or if any tenant is paying separately for electricity or
other utilities or services furnished to its premises, then, for purposes of
calculating the additional rent payable by Tenant pursuant to this Article IV
for each calendar year, the Operating Expenses for such calendar year that
fluctuate depending on the level of occupancy of the Building shall be increased
by the amount of additional costs and expenses that Landlord reasonably
estimates would have been incurred if the average occupancy rate for the entire
Building had been one hundred percent (100%) and as if no tenants had separately
paid for electricity or other utilities and services for such calendar
year. It is the intent of this provision to permit Landlord to
recover Operating Expenses attributable to occupied space in the Building only,
even though the aggregate of such expenses shall have been reduced as a result
of vacancies in the Building. This Section 4.4 shall not be construed
to permit Landlord to, and Landlord shall not, recover from Tenant additional
rent on account of Operating Expenses for any calendar year which when added to
the total amount of additional rent payable by all tenants of the Building on
account of Operating Expenses for such year, will exceed the actual Operating
Expenses incurred by Landlord for such year.
4.5 Subject
to Section 4.3 above, commencing on the Rent Commencement Date and on the first
day of each month thereafter, Tenant shall make estimated monthly payments to
Landlord on account of the Operating Expenses that are expected to be incurred
during each calendar year falling entirely or partially within the Lease
Term. The amount of such monthly payments shall be determined as
follows: commencing with the Rent Commencement Date and at the beginning of each
calendar year thereafter, Landlord shall submit to Tenant a statement setting
forth Landlord’s reasonable estimate of the Operating Expenses that are expected
to be incurred during such calendar year and Tenant’s Pro Rata Share thereof (as
determined in accordance with Section 4.1 hereof). Except
with respect to charges for heat rejection HVAC (as defined below in Section
13.2(i)), which shall be paid by Tenant pursuant to Section 13.4 below, Tenant
shall pay to Landlord on the first day of each month following receipt of such
statement during such calendar year an amount equal to Tenant’s Pro Rata Share
of the anticipated Operating Expenses multiplied by a fraction, the numerator of
which is one (1) and the denominator of which is twelve (12). Except
with respect to estimated charges for heat rejection HVAC, which shall be
reconciled in accordance with Section 13.4 below, within approximately ninety
(90) days, but not later than one hundred fifty (150) days, after the expiration
of each calendar year, Landlord shall submit to Tenant a statement (the “Reconciliation
Statement”), showing (i) the Operating Expenses actually incurred during
the preceding calendar year and Tenant’s Pro Rata Share thereof, and (ii) the
aggregate amount of the estimated payments made by Tenant on account
thereof. If the aggregate amount of such estimated payments exceeds
Tenant’s actual liability for such Operating Expenses, then Landlord shall
credit the net overpayment against the next monthly installment(s) of Additional
Rent coming due under this Lease (except that any such overpayment during the
last calendar year falling wholly or partly within the Lease Term shall be
promptly refunded to Tenant by
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Landlord). If
Tenant’s actual liability for such Operating Expenses exceeds the estimated
payments made by Tenant on account thereof, then Tenant shall pay to Landlord
the total amount of such deficiency within thirty (30) days after its receipt of
the applicable Reconciliation Statement from Landlord. The provisions
of this paragraph shall survive the expiration or earlier termination of this
Lease. [*****].
4.6 Provided
no Event of Default exists hereunder, Tenant or an independent certified public
accountant (on behalf of Tenant) reasonably approved by Landlord, shall have the
right, during regular business hours, at the metropolitan [Washington, D.C.] [Chicago, Illinois] area management office for
the Building, and after giving at least fifteen (15) days’ advance written
notice to Landlord, to commence to have Landlord’s books and records related to
Operating Expenses for the immediately preceding calendar year reviewed (and if
so commenced, to diligently pursue such review to completion), provided that
such review shall be concluded not later than nine (9) months following the date
of Tenant’s receipt of the Reconciliation Statement for the year to which such
review relates, so long as Landlord’s books and records remain reasonably
available for review by Tenant and/or Tenant’s accountant. In
connection therewith, Landlord shall maintain its books and records in a
commercially reasonable condition, capable of being audited by Tenant and/or its
accountant. If Landlord disagrees with the results of Tenant’s review
and audit, then Landlord and Tenant’s auditor shall together select a neutral
auditor of similar qualifications to conduct a review of such books and records
(the fees of such neutral auditor to be shared equally by Landlord and Tenant),
and the determination of Operating Expenses reached by such neutral auditor
shall be final and conclusive. Notwithstanding anything to the
contrary contained herein, in the event Landlord does not contest Tenant’s
review and audit within forty-five (45) days after receipt thereof, then
Landlord shall be deemed to have approved such review and audit. If
the amounts paid by Tenant to Landlord on account of Operating Expenses (a)
exceed the amounts to which Landlord is entitled hereunder, then Landlord shall
credit the amount of such excess toward the next monthly payment(s) of
Additional Rent due hereunder, or (b) are less than the amounts to which
Landlord is entitled hereunder, then Tenant shall pay such deficiency as
Additional Rent within thirty (30) days after final determination of said
Operating Expenses and receipt of written request. Excluding the fees
of any neutral auditor selected by the parties hereto as aforesaid, which shall
be shared equally by Landlord and Tenant, all costs and expenses of any such
review by Tenant and/or Tenant’s accountant shall be paid by Tenant; provided,
however, that if the amount of Operating Expenses used in such Reconciliation
Statement to calculate Tenant’s Proportionate Share thereof was overstated by
Landlord by more than five percent (5%), Landlord shall, within thirty (30) days
after receipt of written request from Tenant, accompanied by back-up
documentation reasonably acceptable to Landlord, reimburse Tenant for the
commercially reasonable, out of pocket hourly or flat fee costs and expenses
paid by Tenant in connection with Tenant’s review. Any and all
information obtained through any such review (including without limitation, any
matters pertaining to Landlord, its managing agent or the Building), and any
compromise, settlement or adjustment that may be proposed or reached between
Landlord and Tenant as a result of such review, shall be held in strict
confidence, and neither Tenant nor any of Tenant’s Agents shall disclose any
such information to any person or entity other than a Permitted
Recipient. A “Permitted
Recipient” shall be the officers, directors, partners and employees
of
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Tenant,
Tenant’s certified public accountants who have responsibilities related to
Operating Expenses, Tenant’s attorneys involved with the Lease or
such review, any employees of Tenant’s auditor involved with such review, or any
person or entity to whom disclosure is required by applicable judicial or
governmental authority. Prior to disclosing any such information to
any Permitted Recipient (including its auditor), Tenant shall instruct such
Permitted Recipient to abide by this confidentiality
provision. Notwithstanding anything herein to the contrary, if Tenant
does not notify Landlord in writing of any objection to an annual Operating
Expenses Reconciliation Statement within one hundred fifty (150) days after
receipt thereof, then Tenant shall be deemed to have waived any such objection
and shall have no right to review Landlord’s books and records related to
Operating Expenses that are the subject of such Reconciliation Statement;
[*****].
ARTICLE
V
SECURITY
5.1 Landlord
shall provide the following security services and operate and maintain, in a
manner consistent with a first-class data center, the following systems with
respect to the Office Building, the Building and the Premises, the cost of which
shall be included in Operating Expenses if and to the extent permitted under
Article IV above: (i) administration of Office Building perimeter security and
Building perimeter security including, without limitation, the Common Areas,
(ii) monitoring and administration of the Building’s access card system and the
Office Building’s access card system, (iii) monitoring and oversight of loading
dock security and the parking lot located on the Land (the “Parking
Lot”), (iv) monitoring and operation of security cameras throughout the
Office Building and throughout the Building, and (v) monitoring of the routes of
ingress to, and egress from, the Premises, the Building and the Office Building
(the “Security
Systems”).
5.2 Tenant
shall have the right to, subject to Article IX hereof, install, manage and/or
maintain, at its sole cost and expense, security services and systems to protect
the Premises and vault environments including, without limitation, a secondary
security perimeter within the Premises and electronic “key card” security system
and/or biometric access system, in addition to the standard Building, Office
Building and Property security services provided by Landlord. Tenant
agrees that such security systems shall not (i) limit Landlord’s ability to
access the space in the event of an emergency or to perform routine maintenance,
subject to Section 11.1 hereof and Exhibit F attached
hereto, or (ii) materially, adversely affect any area outside of the
Premises. Tenant shall, upon ten (10) days’ advance written notice to
Landlord, have the right to obtain, at no additional cost to Tenant, monthly
reports from Landlord regarding entry data and card access for: (a) each person
on the Tenant Access List (as hereinafter defined) that enters the
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Building
and Office Building and (b) each person that enters the
Premises. Tenant shall, further, have the right to request entry
data, review video and card access for the Premises, the Building, the Office
Building and the Parking Lot, as situations dictate to resolve its own
reasonable security concerns or support any necessary personnel inquires, and
Landlord or the Management Company (defined in Section 13.5 below) shall use
commercially reasonable efforts to furnish all such records, all subject to
availability, no more than forty-eight (48) hours after such request by
Tenant.
5.3 Notwithstanding
anything to the contrary contained herein, if (i) any breach of security in the
Premises shall occur, (ii) any Service Interruption (as defined in Section 13.8
below) shall occur, or (iii) any other event adversely impacting the operation
of the Premises occurs, Tenant shall immediately provide notice to Landlord via
(a) email to the following (twenty-four (24) hours per day, seven (7) days per
week and three hundred sixty-five (365) days per year) [*****] and (b) telephone
call to the following (twenty-four (24) hours per day, seven (7) days per week
and three hundred sixty-five (365) days per year) Landlord’s Emergency/Security
Response Center [*****] and/or such other email address and/or phone number as
Landlord shall from time to time notify Tenant in writing (“Landlord’s
Emergency Contacts”).
5.4 Notwithstanding
anything to the contrary contained herein, if (i) any breach of security in the
Building and/or the Premises shall occur, (ii) any Service Interruption (as
hereinafter defined) and/or reductions in levels of redundancy as provided in
Section 13.2 below shall occur, or (iii) any other event adversely impacting the
operation of the Premises and/or the Building occurs, Landlord shall immediately
provide notice to Tenant via (a) email to [*****] (twenty-four (24) hours per
day, seven (7) days per week and three hundred sixty-five (365) days per year)
and (b) telephone call to [*****] (twenty-four (24) hours per day, seven (7)
days per week and three hundred sixty-five (365) days per year), and/or to such
other email address and/or phone number as Tenant shall from time to time notify
Landlord in writing (“Tenant’s
Emergency Contacts”).
5.5 Tenant
shall provide to Landlord an access list (as updated and/or modified from time
to time by Tenant, the “Tenant Access
List”) designating employees of Tenant and Permitted Licensees (defined
in Section 7.6 below) that are permitted to enter the Premises. Each
Tenant employee/Permitted Licensee designated by Tenant on the Tenant Access
List shall receive a permanent access badge (an “Access
Badge”). [*****]. Tenant shall be solely responsible for
updating the Tenant Access List and providing any changes to
Landlord. In the event that any Tenant employee or Permitted Licensee
is removed from the Tenant Access List by Tenant or no longer requires access to
the Premises for any reason, Tenant shall return such Tenant employee/Permitted
Licensee’s Access Badge to Landlord promptly. Landlord agrees and
acknowledges that: (a) the contents of the Tenant Access List and/or the
identities of those parties visiting the Premises shall remain strictly
confidential and shall not be disclosed to any other party, other than the
Management Company, without the prior written consent of Tenant, and (b)
Landlord shall destroy, and not re-use, any and all Access Badges returned by
Tenant to Landlord as aforesaid. If any person seeking to gain access
to the Premises is not on the Tenant
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Access
List, then such person shall be refused access to the Premises; provided,
however, that, so long as an employee or representative of Tenant has escort
authorization as specifically indicated on the Tenant Access List, such employee
and/or representative may escort any visitor, including, without limitation, any
vendor, supplier, partner, customer or prospective customer of Tenant, that is
not on the Tenant Access List to and/or within the Premises. Without
limiting the foregoing, in no event shall Landlord permit any representative or
employee of Tenant that does not have escort authorization to escort any person
that is not on the Tenant Access List to and/or within the
Premises. Notwithstanding anything to the contrary contained herein,
Landlord shall have the right, at any time, to require the immediate removal of
any employee, agent, representative, and/or contractor of Tenant, including, but
not limited to, persons included on the Tenant Access List, from: (i) the
Building or the Land for disruptive behavior or safety concerns occurring on the
Property outside of the Premises or (ii) the Premises for material interference
with Landlord’s performance of its obligations within the Premises, as
determined in the sole but reasonable discretion of
Landlord. [*****]. Landlord will provide a security
orientation for its non-employee, third-party contractors, consultants,
technicians and other personnel (excluding Tenant, Permitted Licensees or any of
Tenant’s employees, agents or invitees) that will have access to the
Premises. [*****].
5.6 [*****].
ARTICLE
VI
USE
OF PREMISES
6.1 Tenant
shall use and occupy the Premises solely for data center computing, hosting and
managed services purposes (including Permitted Interconnections (as defined in
Section 7.6 below)) and uses accessory thereto, including, without limitation,
general office, storage, assembly, and repair (“Permitted
Uses”), and for no other use or purpose. Tenant shall not use
or occupy the Premises for any unlawful purpose, or in any manner that will
violate the certificate of occupancy for the Premises or the Building or that
will constitute waste, nuisance or unreasonable annoyance to Landlord or any
other tenant or user of the Building, or in any manner (other than the Permitted
Uses) that will increase the number of parking spaces required for the Building
as required by law. Tenant’s use of the Premises shall comply with
all present and future laws (including, without limitation, the Americans with
Disabilities Act (the “ADA”) and
the regulations promulgated thereunder, as the same may be amended from time to
time), ordinances (including without limitation, zoning ordinances and land use
requirements), regulations, orders and recommendations (including, without
limitation, those made by any public or private agency having authority over
insurance rates) (collectively, “Laws”)
concerning the use, occupancy and condition of the Premises and of all Tenant’s
machinery, equipment, furnishings, fixtures and improvements therein, all of
which shall be complied with in a timely manner at Tenant’s sole
expense. Notwithstanding the foregoing, Landlord at its expense
(subject to reimbursement pursuant to Article IV above, if and to the extent
permitted thereby) shall comply with Laws (including, without limitation, the
ADA and Environmental Laws (hereinafter defined)) to the extent the same apply
directly to the Building Structure and Systems
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(as
hereinafter defined in Section 8.2), Common Areas of the Property as a whole,
and any other portions of the Building located outside of tenant premises,
including, without limitation, telephone rooms, mechanical and electrical rooms
and closets; provided, however, that to the extent any non-compliance is a
result of Tenant’s particular use or occupancy of the Premises (as opposed to
the Permitted Uses) or any negligence or willful misconduct of Tenant or any
Agent, or if any improvements made by Landlord to comply with such Laws benefit
solely the Premises (and not any other premises) and are atypical of those
performed for similarly-situated tenants, then such compliance shall be at
Tenant’s cost. Landlord represents and warrants that, as of the Rent
Commencement Date, the Premises and the Building shall be in material compliance
with all Laws. Notwithstanding any other provisions herein to the
contrary, the parties hereto acknowledge and agree that in the event the
Premises and/or the Building are not in compliance with all laws as of the Rent
Commencement Date, and provided that any non-compliance is not a result of
Tenant’s breach of its obligations under this Lease or any negligence or willful
misconduct of Tenant or any Agent, Landlord shall bear any and all costs and
expenses of achieving such compliance, and such costs and expenses shall not be
included as an Operating Expense. If any such Law requires an
occupancy or use permit or license for the Premises or the operation of the
business conducted therein, then Tenant shall obtain and keep current such
permit or license at Tenant’s expense and shall promptly deliver a copy thereof
to Landlord, provided, that Landlord shall be responsible, at its sole cost and
expense and not to be included as an Operating Expense, for obtaining the
initial certificate of occupancy required for the Premises and Tenant’s use of
the Premises for the Permitted Uses. Use of the Premises is subject
to all covenants, conditions and restrictions of record. Tenant shall
not use any space in the Building or the Land for the sale of goods to the
public at large or for the sale at auction of goods or property of any
kind. Tenant shall not conduct any operations, sales, promotions,
advertising or special events outside the Premises, whether in the Building or
on the Land.
6.2 Tenant
shall pay before delinquency any business, rent or other taxes or fees that are
now or hereafter levied, assessed or imposed upon Tenant’s use or occupancy of
the Premises, the conduct of Tenant’s business at the Premises, or Tenant’s
equipment, fixtures, furnishings, inventory or personal property. If
any such tax or fee is enacted or altered so that such tax or fee is levied
against Landlord or so that Landlord is responsible for collection or payment
thereof, then Tenant shall pay as Additional Rent the amount of such tax or
fee.
6.3 (a) Tenant
shall not allow, cause or permit any Hazardous Materials to be generated, used,
treated, released, stored or disposed of in or about the Building or the Land by
Tenant’s employees, agents, contractors, licensees (including, without
limitation Permitted Licensees) and/or invitees [but excluding Landlord or
Landlord’s agents, contractors or employees], provided that Tenant and Permitted
Licensees may use and store normal and reasonable quantities of Hazardous
Materials in the Premises as are customarily maintained by data center tenants
and as may be reasonably necessary for Tenant and Permitted Licensees to conduct
normal operations in the Premises, taking into account the Permitted Uses, so
long as such Hazardous Materials are properly, safely and lawfully stored and
used by Tenant and Permitted Licensees. At the expiration or earlier
termination of this Lease, with respect to conditions existing on account of
Tenant’s use or occupancy of the Premises, Tenant shall
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surrender
the Premises to Landlord free of Hazardous Materials attributable to an
Environmental Default and in full compliance with all Environmental
Laws.
(i) “Hazardous
Materials” means (a) asbestos and any asbestos containing material and
any substance that is then defined or listed in, or otherwise classified
pursuant to, any Environmental Law or any other applicable Law as a “hazardous
substance,” “hazardous material,” “hazardous waste,” “infectious waste,” “toxic
substance,” “toxic pollutant” or any other formulation intended to define, list,
or classify substances by reason of deleterious properties such as ignitability,
corrosivity, reactivity, carcinogenicity, toxicity, reproductive toxicity, or
Toxicity Characteristic Leaching Procedure (TCLP) toxicity, (b) any petroleum
and drilling fluids, produced waters, and other wastes associated with the
exploration, development or production of crude oil, natural gas, or geothermal
resources, and (c) any petroleum product, polychlorinated biphenyls, urea
formaldehyde, radon gas, radioactive material (including any source, special
nuclear, or by product material), medical waste, chlorofluorocarbon, lead or
lead based product, and any other substance whose presence could be detrimental
to the Building or the Land or hazardous to health or the
environment.
(ii) “Environmental
Law” means any present and future Law and any amendments (whether common
law, statute, rule, order, regulation or otherwise), permits and other
requirements or guidelines of governmental authorities applicable to the
Building or the Land and relating to the environment and environmental
conditions or to any Hazardous Material (including, without limitation, CERCLA,
42 U.S.C. § 9601 et seq., the Resource Conservation and Recovery Act of 1976, 42
U.S.C. § 6901 et seq., the Hazardous Materials Transportation Act, 49 U.S.C. §
1801 et seq., the Federal Water Pollution Control Act, 33 U.S.C. § 1251 et seq.,
the Clean Air Act, 42 U.S.C. § 7401 et seq., the Toxic Substances Control Act,
15 U.S.C. § 2601 et seq., the Safe Drinking Water Act, 42 U.S.C. § 300f et seq.,
the Emergency Planning and Community Right To Know Act, 42 U.S.C. § 1101 et
seq., the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq., and any
so called “Super Fund” or “Super Lien” law, any Law requiring the filing of
reports and notices relating to hazardous substances, environmental laws
administered by the Environmental Protection Agency, and any similar state and
local Laws, all amendments thereto and all regulations, orders, decisions, and
decrees now or hereafter promulgated thereunder concerning the environment,
industrial hygiene or public health or safety).
(iii) “Environmental
Default” means any material violation of any Environmental Law by Tenant
or any Tenant invitee (other than Landlord or Landlord’s agents, contractors,
employees or agents) including, without limitation, a release, spill, or
discharge of a Hazardous Material on or from the Premises, the Land or the
Building.
(b) Notwithstanding
any termination of this Lease, Tenant shall indemnify and hold Landlord, its
employees and agents harmless from and against any damage, injury, loss,
liability, charge, demand or claim based on or arising out of the presence or
removal of, or failure to remove, Hazardous Materials generated, used, released,
spilled, stored or disposed of by Tenant or any Tenant invitee (other than
Landlord or Landlord’s agents, contractors or employees) in or about the
Building, after the date hereof. In addition, Tenant shall
give
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prompt written notice of any actual or threatened Environmental Default of which
Tenant has actual knowledge, which Environmental Default Tenant shall cure in
accordance with all Environmental Laws. Upon any Environmental
Default, in addition to all other rights available to Landlord under this Lease,
at law or in equity, Landlord shall have the right but not the obligation to
immediately enter the Premises, to supervise and approve any actions taken by
Tenant to address the Environmental Default, and, if Tenant fails to promptly
address same to Landlord’s reasonable satisfaction, to perform, at Tenant’s sole
cost and expense, any lawful action necessary to address
same. If any lender or governmental agency shall require
testing to ascertain whether an Environmental Default is pending or threatened,
and such testing discloses the existence of an Environmental Default, then
Tenant shall pay the reasonable costs of such testing as Additional
Rent.
(c) Notwithstanding
anything to the contrary contained herein, Landlord represents and warrants to
Tenant that Landlord has no knowledge of the current existence of any Hazardous
Materials in or about the Property or the Office
Building. Notwithstanding anything to the contrary contained herein,
Landlord shall indemnify and hold Tenant, its employees and agents harmless from
and against any damage, injury, loss, liability, charge, demand or claim based
on, or arising out of, the presence or removal of, or failure to remove,
Hazardous Materials generated, used, released, stored or disposed of by
Landlord, any Landlord invitee or any other party (other than Tenant or Tenant’s
agents, contractors, employees, invitees or guests) prior to or after the Lease
Commencement Date. In addition, Landlord shall give Tenant prompt
written notice of any actual or threatened violation of any Environmental Law
affecting the Premises of which Landlord has actual knowledge, which violation
Landlord shall cure in accordance with all Environmental Laws. For
purposes of this Section 6.3(c), Hazardous Materials excludes substances of a
type and in a quantity normally used in connection with the occupancy or
operation of data centers, provided such substances are being held, stored and
used in compliance with federal, state and local Laws.
ARTICLE
VII
ASSIGNMENT
AND SUBLETTING
7.1 Subject
to the terms and provisions of Sections 7.2(b) and 7.6 below, Tenant shall not
assign, transfer or otherwise encumber (collectively, “assign”)
this Lease or all or any of Tenant’s rights hereunder or interest herein, or
sublet or permit anyone to use or occupy (collectively, “sublet”)
the Premises or any part thereof, without obtaining the prior written consent of
Landlord, which consent, provided no Event of Default exists under this Lease,
and subject to Landlord’s rights and Tenant’s obligations pursuant to Sections
7.3, 7.4 and 7.5 below, Landlord shall not unreasonably withhold, condition or
delay. For purposes of the immediately preceding sentence, it shall
be reasonable for Landlord to withhold its consent if, for example: (i) the
proposed subtenant or assignee is engaged in a business, or the Premises will be
used in a manner, that is inconsistent with the use of the Property as a
first-class data center; or (ii) Landlord is not reasonably satisfied with the
financial condition of the proposed subtenant or assignee taking into account
the remaining obligations under this Lease and the fact that Tenant
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is not
released; or (iii) the proposed use of the Premises is not in compliance with
Article VI or is not compatible with the other uses within, and the terms of
other leases with respect to, the Building; or (iv) the initial Tenant does not
remain fully liable as a primary obligor for the payment of all rent and other
charges payable by Tenant under this Lease and for the performance of all other
obligations of Tenant under this Lease; or (v) the proposed subtenant or
assignee is a governmental or quasi governmental agency; or (vi) the holders of
Mortgages encumbering the Building shall fail to consent (Landlord hereby
agreeing to use commercially reasonable diligent efforts to obtain such consent
if Landlord approves such transaction); or (vii) the proposed subtenant or
assignee is either (A) an existing tenant of the Building (or any parent,
subsidiary or affiliate thereof) if Landlord has adequate space available in the
Building for a comparable term, or (B) for a period of forty-five (45) days
following the submission of a written proposal for the lease of space (and
thereafter if a mutual agreement such as a letter of intent is executed within
such period), any other person or entity with which Landlord is in the process
of negotiating for the rental of space in the Building. Except as
otherwise set forth herein, no assignment or right of occupancy hereunder may be
effectuated by operation of law or otherwise without the prior written consent
of Landlord, which consent shall not be unreasonably withheld, conditioned or
delayed. Any assignment or subletting, Landlord’s consent thereto,
the listing or posting of any name other than Tenant’s, or Landlord’s collection
or acceptance of rent from any assignee or subtenant, shall not be construed
either as waiving or releasing Tenant from any of its liabilities or obligations
under this Lease as a principal and not as a guarantor or surety, or as
relieving Tenant or any assignee or subtenant from the obligation of obtaining
Landlord’s prior written consent to any subsequent assignment or
subletting. As security for this Lease, Tenant hereby assigns to
Landlord the rent due from any assignee or subtenant of
Tenant. During any period that there exists an Event of Default under
this Lease, Tenant hereby authorizes each such assignee or subtenant to pay said
rent directly to Landlord upon receipt of notice from Landlord specifying
same. Landlord’s collection of such rent shall not be construed as an
acceptance of such assignee or subtenant as a tenant. Tenant shall
not mortgage, pledge, hypothecate or encumber (collectively “mortgage”)
this Lease without Landlord’s prior written consent, which consent may be
granted or withheld in Landlord’s sole but reasonable discretion. Any
sublease, assignment or mortgage shall, at Landlord’s option, be effected on
forms reasonably approved by Landlord. Tenant shall deliver to
Landlord a fully executed copy of each agreement evidencing a sublease,
assignment or mortgage, and Landlord’s consent thereto, within thirty (30) days
after execution thereof.
7.2 (a) If
Tenant is a partnership or a limited liability company, then any event (whether
voluntary, concurrent or related) resulting in a dissolution of Tenant, any
withdrawal or change (whether voluntary, involuntary or by operation of law) of
the partners or members, as applicable, owning a controlling interest in Tenant
(including each general partner or manager, as applicable), or any structural or
other change having the effect of limiting the liability of the partners shall
be deemed a voluntary assignment of this Lease subject to the provisions of this
Article VII. If Tenant is a corporation or a partnership with a
corporate general partner, then any event (whether voluntary, concurrent or
related) resulting in a dissolution, merger, consolidation or other
reorganization of Tenant (or such corporate general partner) and that causes a
change in control of Tenant, or the sale or transfer or relinquishment of the
interest of shareholders who, as
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date of this Lease, own a controlling interest of the capital stock of Tenant
(or such corporate general partner) and that causes a change in control of
Tenant, shall be deemed a voluntary assignment of this Lease subject to the
provisions of this Article VII; provided, however, that if Tenant is a
corporation, or a wholly-owned subsidiary of a corporation, whose stock is
traded through a national or regional exchange or over the counter market, then
the foregoing portion of this sentence shall be applicable only if such event
has or is intended to have the effect of eliminating liability under this
Lease.
(b) Notwithstanding
anything contained in this Article VII to the contrary, provided no Event of
Default exists hereunder, Tenant may, upon not less than ten (10) days’ prior
written notice to Landlord (which notice shall contain a written certificate
from Tenant, signed by an authorized representative of Tenant, containing a
representation as to the true, correct and complete legal and beneficial
relationship of Tenant and the proposed assignee, transferee or subtenant) but
without Landlord’s prior written consent and without being subject to Landlord’s
rights and Tenant’s obligations set forth in Sections 7.4 and 7.5 below, assign
or transfer its entire interest in this Lease or sublease the entire or any
portion of the Premises to any of the following (each, an “Affiliate”):
(i) to a corporation or other business entity (herein sometimes referred to as a
“successor
corporation”) into or with which Tenant shall be merged or consolidated,
or to which substantially all of the assets of Tenant may be transferred or
sold, provided that such successor corporation shall have a net worth and
liquidity factor at least equal to the net worth and liquidity factor of Tenant
as of the date hereof or otherwise reasonably acceptable to Landlord taking into
account the fact that the original Tenant under this Lease is not being
released, and provided that the successor corporation shall assume in writing
all of the obligations and liabilities of Tenant under this Lease and the
proposed use of the Premises is in compliance with Article VI above; or (ii) to
a corporation or other business entity (herein sometimes referred to as a “related
corporation”) which shall control, be controlled by or be under common
control with Tenant, provided that such related corporation shall assume in
writing all of the obligations and liabilities of Tenant under this Lease
(without relieving Tenant therefrom) and the proposed use of the Premises is in
compliance with Article VI above. In the event of any such assignment
or subletting, Tenant shall remain fully liable as a primary obligor for the
payment of all rent and other charges required hereunder and for the performance
of all obligations to be performed by Tenant hereunder. For purposes
of this Section 7.2, “control” shall be deemed to be ownership of more than
fifty percent (50%) of the stock or other voting interest of the controlled
corporation or other business entity. Notwithstanding the foregoing,
if Tenant structures one or more assignment or sublease transactions to an
entity that meets the definition of Affiliate as specified above for the purpose
of circumventing the restrictions on subleases and assignments provided
elsewhere in this Article VII, then such subtenant(s) or assignee(s) shall
conclusively be deemed not to be an Affiliate and subject to all such
restrictions.
7.3 (a) If
at any time during the Lease Term Tenant desires to assign, sublet or mortgage
all or part of this Lease or the Premises, then in connection with Tenant’s
request to Landlord for Landlord’s consent thereto, Tenant shall give notice to
Landlord in writing (“Tenant’s Request
Notice”) containing: the identity of the proposed assignee, subtenant
or
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party and a description of its business; the terms of the proposed assignment,
subletting or other transaction (including a copy of the proposed document for
same) including whether any premium or other consideration is being paid for the
assignment, sublease or other transaction; the anticipated commencement date of
the proposed assignment, subletting or other transaction (the “Proposed Sublease
Commencement Date”); the area proposed to be assigned, sublet or
otherwise encumbered (the “Proposed Sublet
Space”); and either financial statements for the prior two (2) years
certified by an authorized officer of Tenant or a certified public accounting
firm or other evidence of financial responsibility of such proposed assignee,
subtenant or other party. If financial statements for such proposed
assignee, subtenant or other party are not available for the prior two years,
then Tenant shall submit any financial statements that are available for the
prior two years and any other available evidence of financial responsibility
reasonably requested by Landlord.
(b) Landlord
shall grant or deny, with reasonable specificity, Tenant’s request for consent
contained in any Tenant’s Request Notice within thirty (30) days after Landlord
has received any such Tenant’s Request Notice (including all other items
required to be delivered by Tenant to Landlord as set forth in Section 7.3(a)
above). If Landlord fails to timely grant or deny such request with
reasonable specificity, then Landlord shall be deemed to have granted its
consent thereto.
7.4 If the
proposed term with respect to the Proposed Sublet Space extends (including any
renewal or extension options) beyond the first (1st) day of the twelfth (12th)
calendar month before the then-scheduled expiration of the Lease Term, or if the
Proposed Sublet Space is (or, when aggregated with other space being sublet or
assigned by Tenant, will be) more than fifty percent (50%) of the total number
of rentable square feet in the Premises or if the Critical Load Power associated
with the Proposed Sublet Space is (or, when aggregated with the Critical Load
Power associated with other space being sublet or assigned by Tenant, will be)
more than fifty percent (50%) of the Maximum Load Limit (hereinafter defined),
then, in any such event, except as set forth in Section 7.2(b) concerning
Affiliates, Landlord shall have the right in its sole and absolute discretion to
terminate this Lease with respect to the Proposed Sublet Space by sending Tenant
written notice of such termination within thirty (30) days after Landlord’s
receipt of Tenant’s Request Notice. Notwithstanding any of the
foregoing to the contrary, if Landlord sends Tenant a written notice pursuant to
the immediately preceding sentence indicating Landlord’s intention to terminate
this Lease with respect to the Proposed Sublet Space, then Tenant shall have the
right, for a period of ten (10) days after receipt of such notice, to withdraw
(by written notice to Landlord) the applicable Tenant’s Request
Notice. If the Proposed Sublet Space does not constitute the entire
Premises and Landlord exercises its option to terminate this Lease with respect
to the Proposed Sublet Space, then (a) Tenant shall tender the Proposed Sublet
Space to Landlord on the Proposed Sublease Commencement Date and such space
shall thereafter be deleted from the Premises, and (b) as to that portion of the
Premises which is not part of the Proposed Sublet Space, this Lease shall remain
in full force and effect except that Base Rent and additional rent shall be
reduced pro rata. Fifty percent (50%) of the cost of any construction
required to permit the operation of the Proposed Sublet Space separate from the
balance of the Premises shall be paid by Tenant to Landlord as additional rent
hereunder. If the
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Proposed
Sublet Space constitutes the entire Premises and Landlord elects to terminate
this Lease, then Tenant shall tender the Proposed Sublet Space to Landlord, and
this Lease shall terminate, on the Proposed Sublease Commencement
Date.
7.5 If any
sublease or assignment (whether by operation of law or otherwise, including
without limitation an assignment pursuant to the provisions of the Bankruptcy
Code or any other Insolvency Law) provides that the subtenant or assignee
thereunder is to pay any amount in excess of the sum of (a) the rent and other
charges due under this Lease plus (b) the reasonable out-of-pocket expenses
(including any costs attributable to vacancy periods or “downtime”), that Tenant
reasonably incurred in connection with the procurement of such sublease,
assignment or other transfer (which expenses shall be amortized on a
straight-line basis over the initial sublease term for the purposes hereof),
then whether such net excess be in the form of an increased monthly or annual
rental, a lump sum payment, payment for the sale, transfer or lease of Tenant’s
fixtures, leasehold improvements, furniture and other personal property, or any
other form of payment having the effect of a “disguised” rental payment (and if
the subleased or assigned space does not constitute the entire Premises, the
existence of such excess shall be determined on a pro rata basis), Tenant shall
pay to Landlord, along with the next monthly installment of Base Rent due,
[*****] of any such net excess or other premium applicable to the sublease or
assignment, which amount shall be calculated and paid by Tenant to Landlord on a
monthly basis as Additional Rent. Acceptance by Landlord of any
payments due under this Section 7.5 shall not be deemed to constitute approval
by Landlord of any sublease or assignment, nor shall such acceptance waive any
rights of Landlord hereunder. Landlord shall have the right to
inspect and audit Tenant’s books and records relating to any sublease or
assignment.
7.6 Landlord
acknowledges that the business to be conducted by Tenant in the Premises may
include the installation of certain equipment (described below) owned, licensed
or otherwise used by customers, vendors or co-locators of the undersigned Tenant
(“Permitted
Licensees”) in the Premises, in order for Permitted Licensees to place,
use, operate and/or maintain computer, switch, communications and/or other
related facilities and equipment which may interconnect with Tenant’s equipment
and facilities and/or other Permitted Licensees’ equipment and facilities (the
“Permitted
Interconnection”). To expedite Permitted Licensees’ access to
the Premises for Permitted Interconnections, Landlord expressly agrees that
Tenant may, without Landlord’s consent, license portions of the Premises to
Permitted Licensees for the sole purpose of Permitted Interconnections pursuant
to written agreements or other arrangements by and between Tenant and Permitted
Licensees (collectively, “Permitted
Agreements”); provided, however, that (a) Tenant acknowledges and agrees
that access of Permitted Licensees to the Building and the Premises is subject
to the terms and provisions of Article V above and (b) the Permitted Licensee’s
license of a portion of the Premises may not violate the terms of this Lease or
any Applicable Laws. The Permitted Agreements and the Permitted
Licensees’ rights thereunder shall be subject and subordinate at all times to
the Lease and all of its provisions, covenants and conditions. Except
to the extent caused by the negligence or willful acts or omissions of Landlord
or its agents, and subject to Section 12.3 below, Tenant hereby agrees to
indemnify, defend, and hold harmless Landlord from and against (and to reimburse
Landlord for)
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all claims, costs, damages, causes of action and/or litigation arising from or
in any manner relating to (i) any Permitted Agreement, (ii) the use of the
Premises or any other portion of the Building or the Property by any Permitted
Licensee or any person claiming by, through or under any Permitted Licensee, its
officers, agents or employees (collectively, the “Colocating
Parties”), and (iii) the acts or omissions of any Permitted Licensee or
any Colocating Parties. Notwithstanding anything to the contrary
contained herein, Landlord and Tenant acknowledge and agree that Permitted
Agreements shall not constitute, or be deemed to be, (I) the grant of a
leasehold interest or otherwise constitute, or be deemed to be, a real property
interest or (II) an assignment of this Lease or a sublet of the Premises, or any
portion thereof, requiring Landlord’s consent, and the Permitted
Interconnections and Permitted Agreements shall not be subject to Landlord’s
rights and Tenant’s obligations set forth in Section 7.4 and 7.5
above. Additionally, Landlord and Tenant agree that Tenant’s right to
enter into Permitted Agreements related to the Premises is a right that is
granted specifically and solely to Rackspace U.S., Inc. and Rackspace Hosting,
Inc. and Affiliates of each, and, as such, such right shall not be exercisable
by any party (who is not an Affiliate of Rackspace U.S., Inc. and/or Rackspace
Hosting, Inc.) to whom any or all of the rights of “Tenant” under this Lease are
hereafter assigned or otherwise transferred, or by any Colocating Party (who is
not an Affiliate of Rackspace U.S., Inc. and/or Rackspace Hosting,
Inc.).
7.7 All
restrictions and obligations imposed pursuant to this Lease on Tenant shall be
deemed to extend to any subtenant, assignee, licensee, concessionaire or other
occupant or transferee, and Tenant shall cause such person to comply with such
restrictions and obligations. Any assignee shall be deemed to have
assumed obligations from and after the effective date of the relevant assignment
and at Landlord’s request shall execute promptly a document confirming such
assumption. Each sublease is subject to the condition that if the
Lease Term is terminated or Landlord succeeds to Tenant’s interest in the
Premises by voluntary surrender or otherwise, at Landlord’s option the subtenant
shall be bound to Landlord for the balance of the term of such sublease and
shall attorn to and recognize Landlord as its landlord under the then executory
terms of such sublease.
ARTICLE
VIII
MAINTENANCE
AND REPAIRS
8.1 Subject
to Landlord’s obligations in Section 8.2, Article XVI and Article XVII below and
in the Services Exhibit attached hereto as Exhibit F, Tenant, at
Tenant’s sole cost and expense, shall promptly make all repairs, perform all
maintenance, and make all replacements in and to the Premises that are necessary
or desirable to keep the Premises in proper operating condition and repair, in a
clean, safe and tenantable condition, and otherwise in accordance with all Laws
and the requirements of this Lease (Tenant’s repair, maintenance and replacement
obligations, including but not limited to obligations with respect to the Tenant
Items (as hereinafter defined), shall hereinafter be collectively referred to as
“Tenant’s
Repair and Maintenance Obligations”). Subject to Landlord’s
obligations in Section 8.2, Article XVI and Article XVII below, Tenant shall
maintain all fixtures, furnishings and equipment installed by
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Tenant or
any Tenant invitee in the Premises (excluding any PDUs installed by Tenant) in
clean, safe and sanitary condition, shall take good care thereof and make all
required repairs and replacements thereto. Tenant shall maintain
throughout the Lease Term, at Tenant’s sole cost and expense, customary
maintenance and service contracts for the maintenance and repair of any and all
non-Building standard supplemental heating, ventilation and air conditioning
equipment and systems and any and all non-Building standard supplemental power
distribution equipment and systems installed by Tenant or any Tenant invitee in
the Premises, and Tenant shall maintain throughout the Lease Term, at Tenant’s
sole cost and expense, all such supplemental heating, ventilation and air
conditioning equipment and systems and supplemental power distribution equipment
and systems, as well as any special tenant areas, facilities and finishes
installed by Tenant or any Tenant invitee; special fire protection equipment,
telecommunications and computer equipment installed by Tenant or any Tenant
invitee; kitchen/galley equipment and fixtures, all other furniture,
furnishings, equipment and systems of Tenant and all Alterations (collectively,
“Tenant
Items”). Each such contract shall be with a contractor
licensed to do business in the jurisdiction in which the Building is located and
otherwise reasonably approved by Landlord. From time to time, at
Landlord’s request, Tenant shall provide Landlord with copies of all maintenance
and service contracts. In the event that Tenant fails to commence and
diligently prosecute to completion any item of Tenant’s Repair and Maintenance
Obligations within fifteen (15) Business Days following Tenant’s receipt of
notice from Landlord, then Landlord shall have the right, at Landlord’s option,
to perform any such item of Tenant’s Repair and Maintenance Obligations and to
charge Tenant for all reasonable costs and expenses actually incurred by
Landlord in connection therewith. Tenant shall give Landlord prompt
written notice of any defects or damage to the structure of, or equipment or
fixtures in, the Building or any part thereof of which Tenant has
knowledge. Tenant shall suffer no waste or injury to any part of the
Premises, and shall, at the expiration or earlier termination of the Lease Term,
surrender the Premises in an order and condition equal to or better than their
order and condition on the Rent Commencement Date, except for ordinary wear and
tear and as otherwise provided in Article IX, Article XII and/or Article
XVI. Except as otherwise provided in Article XVI, all injury,
breakage and damage to the Premises and to any other part of the Building or the
Land caused by any act or omission of any agent, employee, subtenant, assignee,
contractor, client, licensee, customer, invitee or guest of Tenant
(collectively, “Agents”)
or Tenant, shall be repaired by and at Tenant’s expense, except
that: (A) if either an emergency condition exists or the Lease Term
has expired or Tenant fails to commence and diligently prosecute to completion
repair of any such injury, breakage or damage within ten (10) days following
Tenant’s receipt of notice from Landlord, then Landlord shall have the right at
Landlord’s option to make any such repair and to charge Tenant for all
reasonable costs and expenses actually incurred by Landlord in connection
therewith; and (B) if such injury, breakage and damage is caused by the
negligence of Tenant or any Agent (as opposed to the gross negligence or willful
misconduct of Tenant or any Agent), then the mutual waiver of subrogation
specified in Sections 12.2 and 12.3 shall apply (subject to the limitations of
the remainder of Article XII, including without limitation the fact that
Tenant’s insurance shall be primary and non-contributory). Landlord
shall provide and install replacement tubes for Building-standard fluorescent
light fixtures (subject to reimbursement pursuant to Article IV). All
other lights and/or light bulbs within the Premises shall be provided and
installed by Tenant at Tenant’s sole cost and expense. The provision,
installation and
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replacement
of such lights and light bulbs shall be expressly required as an item of
Tenant’s Repair and Maintenance Obligations.
8.2 Except as
otherwise provided in this Lease, Landlord, at its expense (subject to
reimbursement pursuant to Article IV if and to the extent permitted thereby),
shall promptly make all repairs, perform all maintenance and make all
replacements (which shall be new or comparable materials, facilities or
equipment only) to keep the exterior and demising walls, main lobby in the
Building and main lobby in the Office Building, slab floors, exterior windows,
load bearing elements, foundations, roof and common areas that form a part of
the Building and that form a part of the Office Building; the driveways, parking
and grounds on the Land; the raised floor, the PDUs (up to the load side of each
PDU, up to and including the output bus), CRACs, Engine Generators, electrical
distribution switchgear, uninterruptible power systems, HVAC cooling support
equipment, the Building Management System, the Security Systems, fire detection
and alarm system and fire protection system, any other equipment, facilities or
other property of Landlord, located within the Premises, the Building and the
Office Building, as well as the mechanical, telecommunications, electrical, HVAC
and plumbing systems, equipment, rooms, closets, pipes, cables, risers, vaults,
manholes and conduits that are provided by Landlord in the operation of the
Building and the Office Building (collectively, the “Building
Structure and Systems”), clean and in good operating condition,
consistent with industry standards for first-class data centers (Landlord’s
repair, maintenance and replacement obligations, collectively, “Landlord’s
Repair and Maintenance Obligations”). Landlord’s Repair and
Maintenance Obligations shall include Landlord’s duties and obligations set
forth in Section B of the Services Exhibit attached hereto as Exhibit
F. Notwithstanding any of the foregoing to the contrary,
maintenance and repair of all Tenant Items shall be the sole responsibility of
Tenant and Tenant Items shall be deemed not to be a part of the Building
Structure and Systems.
ARTICLE
IX
ALTERATIONS
9.1 (a) Landlord
represents and warrants that it has constructed and installed at its sole cost
and expense, the Building and data center infrastructure and leasehold
improvements (“Landlord’s
Work”) as outlined in Exhibit D attached
hereto and made a part hereof, all in a good, workmanlike and first-class
manner, and all in compliance with all applicable Laws and building
codes. [*****]. It is understood and agreed that, except
for the Landlord’s Work [*****] and delivery of the Office Space and Storage
Space as set forth in Sections 1.3 and 1.4 above, Landlord will not make, and is
under no obligation to make, any structural or other alterations, installations,
additions or improvements in or to the Building, Land or Premises.
(b) [*****].
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(c) [*****].
9.2 Tenant
shall not make or permit anyone to make any material alterations, additions,
improvements or replacements in or to the Premises, the Building, the Office
Building or the Property (collectively, “Alterations”)
without the prior written consent of Landlord, which consent may be withheld or
granted in Landlord’s sole and absolute discretion with respect to structural
Alterations and those non-structural Alterations which are visible from the
exterior of the Premises, and which consent shall not be unreasonably withheld,
conditioned or delayed with respect to all other non-structural
Alterations. Structural Alterations shall be deemed to include,
without limitation, any Alteration that will or may necessitate any changes,
replacements or additions to the load-bearing or exterior walls, non-drop
ceilings, partitions (load-bearing or non-demising), columns or floor, or to the
fire protection, water, sewer, electrical, mechanical, plumbing or HVAC systems,
of the Premises or the Building. Notwithstanding the foregoing,
Tenant shall have the right to make Minor Changes (as defined below) within the
Premises without requiring the consent of Landlord. “Minor
Changes” shall mean those minor, non-structural Alterations which will
not cause an interruption of, or a reduction in, the functioning of the
Building’s mechanical, electrical, life safety, security, plumbing, HVAC,
telecommunications or other systems, and which cost (including installation) in
the aggregate less than [*****] (as reasonably determined by
Landlord). The construction of any cage(s), security fencing or
similar structure within the Premises shall not be a Minor Change and shall be
subject to Landlord’s consent, such consent not to be unreasonably withheld,
conditioned or delayed. Any Alterations made by Tenant shall be made:
(a) in a good, workmanlike, first class and prompt manner; (b) using new or
comparable materials only; (c) by a contractor included on Landlord’s list of
approved contractors or a contractor otherwise reasonably approved in writing by
Landlord (each, an “Approved
Contractor”); (d) on days and at times that do not unreasonably interfere
with Landlord’s performance of its obligations under this Lease; (e) under the
supervision of an architect reasonably approved in writing by Landlord; (f) in
accordance with plans and specifications prepared by an engineer and/or
architect reasonably acceptable to Landlord, and, with respect to Alterations
that are not Minor Changes, which plans and specifications shall be approved in
writing by Landlord at Landlord’s standard charge, which shall not exceed
[*****] except in the event that Landlord reasonably obtains the services of a
non-affiliated third party to review such plans and specifications (i.e., where
an Alteration affects the Building Structure and Systems), in which event Tenant
shall be responsible for all reasonable, third-party, out-of-pocket costs and
expenses actually incurred by Landlord; (g) in accordance with all Laws and, if
made available to Tenant by Landlord, the reasonable requirements of any
insurance company insuring the Building or any portion thereof; (h) with respect
to any Alterations that are not Minor Changes, after Landlord shall have
obtained any required consent of the holder of any Mortgage of whom Tenant has
notice; (i) after obtaining public liability and worker’s compensation insurance
policies approved in writing by Landlord, which policies shall cover every
person who will perform any work with respect to such Alteration; and (j) with
the obligation for Tenant to obtain and deliver to Landlord written,
unconditional full or partial (as applicable) waivers of mechanics’ and
materialmen’s liens against the Premises, the Building and the Property from all
contractors, subcontractors, laborers and material suppliers (individually and
collectively, “Contractors”)
for all work, labor and
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services
performed and materials furnished in connection with Alterations within ten (10)
Business Days after Tenant submits payment to the applicable Contractor(s) for
the applicable portion(s) of the Alterations. If any lien (or a
petition to establish such lien) is filed in connection with any Alteration made
by or on behalf of Tenant, such lien (or petition) shall be discharged by Tenant
as soon as commercially reasonable, but in no event more than thirty (30) days
after Tenant receives notice thereof, at Tenant’s sole cost and expense, by the
payment thereof or by the filing of a bond legally sufficient to discharge such
lien. If Landlord gives its consent to the making of any Alteration,
such consent shall not be deemed to be an agreement or consent by Landlord to
subject its interest in the Premises, or the Building to any liens which may be
filed in connection therewith. Tenant acknowledges that any
Alterations are accomplished for Tenant’s account, Landlord having no obligation
or responsibility in respect thereof. Landlord’s approval of any
plans and drawings (and changes thereto) regarding any Alterations or any
contractor or subcontractor performing such Alterations shall not constitute
Landlord’s representation that such approved plans, drawings, changes or
Alterations comply with all Laws. Any deficiency in design or
construction, although same had prior approval of Landlord, shall be solely the
responsibility of Tenant, unless Landlord performed design work or construction
work (other than reviewing and/or approving plans, drawings or construction
work) with respect to such Alterations. All Alterations involving
structural, electrical, mechanical or plumbing work, the heating, ventilation
and air conditioning system of the Premises or the Building, fire and life
safety system or the roof of the Building shall, at Landlord’s election, be
performed by Landlord’s designated contractor or subcontractor, who shall be
reasonably approved by Tenant, at Tenant’s expense (provided the cost therefor
is competitive). For any approved Alterations performed by Tenant
and/or its contractor(s), Tenant shall not be required to pay a construction
supervision fee or coordination fee to Landlord; however, if Landlord’s
contractor or subcontractor performs any Alteration, then, except with respect
to any of Landlord’s Work, [*****], Tenant shall pay a reasonable construction
supervision fee [*****]. Promptly after the completion of an Alteration, Tenant,
at its expense, shall deliver to Landlord three (3) sets of as-built (or record)
drawings and CAD drawings prepared by Tenant’s engineer showing such Alteration
in place. Notwithstanding the foregoing, subject to Landlord’s
written approval, which shall not be unreasonably withheld or delayed, Tenant
may elect not to cause as-built drawings and CAD drawings to be prepared for
Minor Changes that, in Landlord’s sole but reasonable discretion, do not affect
the Building Structure and Systems.
9.3 If any
Alterations that require Landlord’s consent are made without the prior written
consent of Landlord then, if either an emergency condition exists or the Lease
Term has expired or Tenant fails to commence and diligently prosecute to
completion, removal and correction of such Alterations and restoration of the
Premises and the Building within ten (10) days following Tenant’s receipt of
notice from Landlord, Landlord shall have the right, at Tenant’s expense, to so
remove and correct such Alterations and restore the Premises and the Building to
their condition immediately prior thereto. Subject to the immediately
succeeding sentence, all tenant improvements, to the Premises made by Landlord,
[*****] (excluding moveable furniture, furnishings, trade fixtures and
equipment) shall immediately become the property of Landlord and shall remain
upon and be surrendered with the Premises as a part thereof at the expiration or
earlier termination of the Lease Term. Tenant shall have the right
to
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remove,
at or prior to the expiration or earlier termination of the Lease Term, all
movable furniture, furnishings, trade fixtures, facilities and equipment
installed in the Premises or elsewhere in the Building or on the Land solely at
the expense of Tenant, including all Tenant Items, and Tenant may remove, at its
expense, all Alterations and other items (including any telecommunications
equipment and wiring) made or installed by Tenant in the Premises or the
Building, provided, that Tenant may, at its option, surrender those Alterations
and/or Tenant Items or other Tenant facilities or equipment requested by
Landlord in writing.
9.4 Landlord
waives, releases and relinquishes any statutory, common law or constitutional
liens it may have or at any time hereafter be entitled to assert against the
personal property, trade fixtures and telecommunications, computer or other
equipment and facilities which Tenant, its agents, employees and/or its
Permitted Licensees, install in the Premises or elsewhere in the Building, the
Office Building or on the Land, or is otherwise located in the
Premises.
ARTICLE
X
SIGNS
Tenant shall not place, inscribe,
paint, affix or otherwise display any sign, advertisement or notice of any kind
on any part of the exterior or the interior of the Building without the prior
written approval of Landlord, which may be granted or withheld in Landlord’s
sole and absolute discretion, provided, that Tenant may display signs within the
Premises without Landlord’s consent; however, the location of any such sign
displayed within the Premises is subject to Landlord’s approval, not to be
unreasonably withheld or delayed. All signage installed by Tenant in
accordance with this Article X shall be installed and removed at the expiration
or earlier termination of the Lease Term, and Tenant shall repair any damage to
the Building resulting therefrom, at Tenant’s cost and expense. If
any sign, advertisement or notice requiring Landlord’s approval as aforesaid is
exhibited or installed by Tenant without Landlord’s prior approval, Landlord
shall have the right to immediately remove the same at Tenant’s
expense. Landlord reserves the right to affix, install and display
signs, advertisements and notices on any part of the exterior or interior of the
Building, including those required by applicable law, provided, that Landlord
shall not affix, install or display any signs, advertisements or notices not
required by applicable law and identifying Tenant, Tenant’s Affiliates, any
Permitted Licensees or Tenant’s customers on or within the Building and/or the
Office Building without Tenant’s prior written consent, which consent may be
granted or withheld in Tenant’s sole and absolute discretion.
ARTICLE
XI
LANDLORD
ACCESS
11.1 Tenant
will permit Landlord, or its agents or representatives, and the holder of any
Mortgage to enter the Premises, without charge therefor to Landlord and without
diminution of the rent payable by Tenant, (i) to examine, inspect and protect
the Premises, the Building and
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the
Office Building, (ii) to make such alterations, replacements and/or repairs as
in Landlord’s reasonable judgment may be required by law or be necessary in
order for Landlord to perform its obligations under Article VIII hereof, and
(iii) to otherwise comply with and carry out Landlord’s obligations under this
Lease. In connection with any such entry, Landlord shall (A)
diligently endeavor to minimize the disruption to Tenant’s use of the Premises,
and, in all events, shall not materially interfere with Tenant’s use of, or
access to, the Premises for the Permitted Uses, (B) except in the event of
emergency, give Tenant reasonable advance written, telephonic or email notice of
such entry pursuant to Section 5.4 above, which shall not be less than two (2)
Business Days prior to the date of entry and (C) diligently endeavor to conduct
such entry only during normal working hours (except in the event of an
emergency). Tenant may, at its option, require that Landlord be
accompanied by a representative of Tenant during any such entry (except in the
case of emergency), provided that such representative of Tenant does not
interfere with or delay Landlord exercising its rights or satisfying its
obligations hereunder.
11.2 Landlord
reserves the right to grant easements, rights, and dedications that Landlord
deems necessary or desirable for the benefit of the Property, and to record
personal maps and restrictions in connection therewith; provided, however,
Landlord shall not enter into any such agreement or grant any such rights that
would unreasonably interfere with Tenant’s use or occupancy of, or access to,
the Premises in accordance with the Permitted Uses.
11.3 Upon
written request by Tenant, Landlord shall grant, subject to Landlord’s rules and
regulations and upon commercially reasonable terms, as determined by Landlord in
its sole but reasonable discretion, license rights coterminous with the Lease
Term to one or more reputable telecommunications utility provider(s) designated
by Tenant (any such utility provider, an “Approved Fiber
Provider”), to permit any such Approved Fiber Provider to bring such
Approved Fiber Provider’s telecommunications fiber, cable and related equipment
and facilities from and through conduits [*****] duct banks on the Property (the
“Telecommunications
Duct Banks”) into [*****] of the Building’s telecommunications points of
entry (each, a “▇▇▇”), to
provide cross-connects within the Premises and to permit any such Approved Fiber
Provider to maintain and operate such cable, fiber and related facilities and
equipment on the Property. Landlord agrees that Landlord shall not
charge Tenant or any Approved Fiber Provider any fee and/or other amount in
connection with any such license granted pursuant to this Section 11.3 (other
than direct costs incurred in connection with maintaining and restoring the
Property, systems, and equipment directly affected by such
license). Tenant shall have the right, subject to Landlord’s
reasonable rules and regulations, to use the secure telecommunications conduits
exclusively serving each Pod in the Premises and extending from each Pod within
the Premises to two (2) POEs within the Building (the “Telecommunications
Conduits”) in order to connect Tenant’s telecommunications network cables
and related telecommunications and computer facilities and equipment to the
telecommunications equipment and facilities of third parties located within the
two (2) POEs (“AFP
Telecommunications Facilities”). Tenant shall not be charged
any fee for the use of the Telecommunications Duct Banks, the Telecommunications
Conduits and/or the POEs in accordance with this Section
11.3. Furthermore, Tenant shall have the right, subject to Article IX
above and Landlord’s reasonable rules and regulations, and accompanied by an
employee of Landlord or the Management Company or an agent
designated
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Landlord or the Management Company, to enter the POEs solely to install, use,
operate, maintain, inspect, repair, replace and remove telecommunications
facilities and equipment reasonably approved by Landlord in order to connect to
AFP Telecommunications Facilities located within the POEs, all in locations
reasonably designated by Landlord. Tenant acknowledges and agrees
that, in connection with its use of the Telecommunications Conduits and the
POEs: (a) any of Tenant’s telecommunications network cables and wires entering
the POEs must terminate in optical cable entrance termination facilities
reasonably approved by Landlord, (b) Tenant may use only non-heat rejecting
fiber termination facilities within the POEs, and (c) Tenant shall not
materially disrupt, interfere with, or adversely affect (i) the operations of
Landlord or other tenants within the Building, (ii) the structure of the
Premises or the Building, and/or (iii) the telecommunications equipment and
facilities or other personal property of Landlord or other tenants within the
Building. Tenant shall be responsible, at its sole cost and expense,
for (1) connections to Approved Fiber Providers and for any services provided by
Approved Fiber Providers to Tenant and (2) all costs associated with the
population of the Telecommunications Conduits, including the installation of
innerducts. [*****].
|
ARTICLE
XII
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INSURANCE
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12.1 Tenant
shall not conduct or permit to be conducted any activity, or place or permit to
be placed any equipment or other item in or about the Premises or the Building,
which is inconsistent with the Permitted Uses and which will in any way increase
the rate of property insurance or other insurance on the Building. If
any increase in the rate of property or other insurance is due to any specific
activity, equipment or other item of Tenant, then (whether or not Landlord has
consented to such activity, equipment or other item) Tenant shall pay, as
Additional Rent due hereunder, the amount of such increase. The
statement of any applicable insurance company or insurance rating organization
(or other organization exercising similar functions in connection with the
prevention of fire or the correction of hazardous conditions) that an increase
is due to any such specific activity, equipment or other item shall be
conclusive evidence thereof.
12.2 (a) Throughout
the Lease Term, Tenant shall obtain and maintain: (1) commercial
general liability insurance (written on an occurrence basis) including
contractual liability coverage insuring the obligations assumed by Tenant under
this Lease, premises and operations coverage, broad form property damage
coverage, independent contractors coverage, and personal injury, an exception to
any pollution exclusion which insures damage or injury arising out of heat,
smoke or fumes from a hostile fire, and a standard separation of insureds
provision; (2) business interruption insurance; (3) all risk property insurance;
(4) comprehensive automobile liability insurance (covering automobiles owned,
hired or used by Tenant in carrying on its business, if any); (5) worker’s
compensation insurance (covering Tenant’s employees); (6) employer’s liability
insurance (covering Tenant’s employees); and (7) umbrella excess liability
coverage on a following form basis in excess of the primary commercial
liability, business auto liability, and employer’s liability coverages specified
above and which insures against bodily
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injury,
property damage, personal injury and advertising injury claims. Such
commercial general liability insurance shall be in amounts of One Million
Dollars ($1,000,000) combined single limit per occurrence, and Two Million
Dollar ($2,000,000) annual general aggregate (on a per location
basis). Such business interruption insurance shall be in minimum
amounts typically carried by prudent tenants engaged in similar operations, but
in no event shall be in an amount less than the Base Rent then in effect during
any Lease Year. Such property insurance shall be in an amount not
less than that required to replace all tenant improvements installed by Tenant
in the Premises, all Alterations [*****] and all of Tenant’s contents within the
Premises (including, without limitation, Tenant’s trade fixtures, decorations,
furnishings, inventory, equipment, facilities and personal property), but
excluding PDUs, CRACs, HVAC cooling support equipment, fire detection and alarm
and fire suppression systems and equipment and any other equipment, facilities
or other property of Landlord comprising the Building Structure and Systems and
located within the Premises. Such automobile liability insurance
shall be in an amount of One Million Dollars ($1,000,000) combined single limit
for each accident. Such worker’s compensation insurance shall meet
statutory limits as defined by the law of the jurisdiction in which the Building
is located (as the same may be amended from time to time). Such
employer’s liability insurance shall be in an amount of One Million Dollars
($1,000,000) for each accident, One Million Dollars ($1,000,000) disease policy
limit, and One Million Dollars ($1,000,000) disease each
employee. Such umbrella excess liability insurance shall be in
amounts of Five Million Dollars ($5,000,000) per occurrence and Five Million
Dollars ($5,000,000) annual aggregate, in addition to the limits stated above
for the commercial general liability, business auto liability and employer’s
liability insurance.
(b) All such
insurance shall: (1) be issued by a company that is licensed to do
business in the jurisdiction in which the Building is located, and that has a
rating equal to or exceeding A:XII from the most current Best’s Insurance Guide;
(2) with respect to Tenant’s commercial general liability insurance, name
Landlord, the Management Company and the holder of any Mortgage (as hereinafter
defined) of which Tenant has notice as additional insureds; (3) contain a
waiver of subrogation (Tenant hereby waiving its right of action and recovery
against and releasing Landlord and Landlord’s shareholders, partners, directors,
officers and employees (“Landlord’s
Representatives”) from liabilities, claims and losses for which they may
otherwise be liable to the extent that (i) Tenant is covered therefor by
insurance carried or required to be carried under this Lease and (ii) provided
that Tenant is carrying such required insurance, Tenant receives proceeds
therefor); (4) be reasonably acceptable in form and content to Landlord; (5) be
primary and non-contributory; and (6) contain an endorsement requiring the
insurance company to provide Landlord with written notice (by certified or
registered mail, return receipt requested to the addresses listed in Section
24.6 hereof) of cancellation or non-renewal at least thirty (30) days’ prior to
the effective date of such cancellation or non renewal. Landlord
reserves the right from time to time to require higher minimum amounts or
different types of insurance if it becomes customary for other landlords of
comparable data centers in the Chicago, Illinois area to require similar tenants
in similar industries to carry insurance of such higher minimum amounts or of
such different types. Tenant shall deliver an Accord 27 certificate
of all such insurance (which certificate shall evidence an endorsement for each
policy indicating that the Landlord Insured Parties are named as additional
insureds on liability policies
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(except
employer’s liability, workers’ compensation and umbrella excess liability
coverage) and that Landlord is named as a loss payee on the property insurance
policies with respect to Landlord’s interest in improvements and
betterments) to Landlord on or before the Rent Commencement Date and
at least annually thereafter. If Tenant fails to provide evidence of
insurance required to be provided by Tenant hereunder, prior to the Rent
Commencement Date and, thereafter, within thirty (30) days following Landlord’s
request during the Lease Term (and in any event within thirty (30) days prior to
the expiration date of any such coverage, any other cure or grace period
provided in this Lease not being applicable hereto), Landlord shall be
authorized (but not required), after ten (10) days’ prior notice, to procure
such coverage in the amount stated, with all costs thereof to be chargeable to
Tenant and payable as Additional Rent within thirty (30) days after receipt of
written invoice therefor.
12.3 Throughout
the Lease Term, Landlord agrees to carry and maintain all-risk property
insurance (with full replacement cost coverage) covering the Building and the
Office Building, including the Building Structure and Systems, and any other
equipment, fixtures and property of Landlord therein, in an amount required by
its insurance company to avoid the application of any coinsurance
provision. Landlord hereby waives its right of action and recovery
against and releases Tenant and Tenant’s Affiliates, shareholders, partners,
directors, officers, employees, agents and representatives (“Tenant’s
Representatives”) from any and all liabilities, claims and losses for
which they may otherwise be liable to the extent that (i) Landlord is covered
therefor by insurance carried or required to be carried under this Lease and
(ii) provided that Landlord is carrying such required insurance, Landlord
receives proceeds therefor. Landlord shall secure a waiver of
subrogation endorsement from its insurance carrier with respect to Tenant and
Tenant’s Representatives. Landlord also agrees to carry and maintain,
throughout the Lease Term, commercial general liability insurance in limits it
reasonably deems appropriate (but in no event less than the limits required of
Tenant pursuant to Section 12.2 above). Landlord may elect to carry
such other additional insurance or higher limits as it reasonably deems
appropriate. Tenant acknowledges that Landlord shall not carry
insurance on, and shall not be responsible for damage to, Tenant’s personal
property or any Alterations installed by Tenant [*****], and that Landlord shall
not carry insurance against, or be responsible for any loss suffered by Tenant
due to, interruption of Tenant’s business.
ARTICLE
XIII
SERVICES
AND UTILITIES
13.1 The
Building is at all times subject to the exclusive control, management and
operation of Landlord. Subject to the terms and provisions of this
Lease, Landlord has the right with respect to such control, management and
operation to:
(i) obstruct
or close off all or any part of the Property for the purpose of maintenance,
repair or construction, provided that Tenant’s use of or access to the Premises
is not unreasonably impaired thereby;
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(ii) employ all personnel
necessary for the operation and management of the Building, either directly or
through an experienced third party property management company and, in
connection therewith, Landlord shall maintain adequate personnel at the Building
twenty-four (24) hours per day, seven (7) days per week;
(iii) construct
other improvements and make alterations, additions, subtractions or
re-arrangements, construct facilities adjoining or proximate to the Building,
including underground tunnels and pedestrian walkways and overpasses, provided
that Tenant’s use of, normal operations in or access to, the Premises in
accordance with the Permitted Uses is not impaired thereby;
(iv) do and
perform such other acts in and to the Building and, in connection with
performing any maintenance or repair obligations of Landlord, in and to the
Premises and to have access thereto, as, in the use of good business judgment,
Landlord determines to be advisable for the more efficient and proper operation
of the Building and Premises, provided that Tenant’s use of, normal operations
in or access to, the Premises in accordance with the Permitted Uses is not
unreasonably impaired thereby; and
(v) reasonably
control, supervise and regulate the parking areas in such manner as the Landlord
determines from time to time.
13.2 During
the Term, the Landlord shall provide, or cause to be provided, to the Premises,
the following services and utilities upon the terms and subject to the
conditions set out in this Article XIII and in Exhibit F attached
hereto:
(i) the
heating, ventilation and air conditioning (“HVAC”) for
the Premises shall be provided at all times in order to maintain the
Environmental Conditions (as hereinafter defined), including maintaining a
temperature adequate for normal occupancy in accordance with the Permitted Uses,
including heat rejection equipment capable of handling 5.633 megawatts of
Critical Load Power;
(ii) water,
gas and fuel in amounts no less than the amounts customarily provided by the
owners of similarly-sized, first class data centers, as installed in the
Building and Premises;
(iii) PDUs
sufficient to support 5.633 megawatts of Critical Load Power to the Premises
(the “Maximum Load
Limit”);
(iv) Four (4)
four-inch Landlord-installed, secure Telecommunications Conduits exclusively
serving each Pod, that enable Tenant to access connectivity to one or more fiber
providers shall be provided from each Pod to two (2) POEs within the Building
[with two (2) Telecommunications Conduits connecting each Pod to each such ▇▇▇];
provided, however, that Tenant may, pursuant to Section 11.3 above, utilize one
or more Approved Fiber Providers for the connection of new fiber lines from and
through each of the Telecommunications Duct Banks to the Building and into two
(2) POEs;
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(v) security for the Building
in accordance with Article V hereof; and
(vi) loading
dock facilities convenient to the Premises twenty-four (24) hours a day, seven
(7) days a week.
Landlord represents, warrants and
covenants to Tenant that, commencing on the Lease Commencement Date and
throughout the Lease Term, (I) Critical Load Power up to the Maximum Load Limit
will be available to the Premises, (II) the Premises shall be provided with a
dedicated back-up system for such Critical Load Power, including UPS and Engine
Generators and (III) all Building infrastructure shall be operational in
accordance with industry standards and procedures for first-class data centers,
accounting for, among other things, repairs, scheduled maintenance and emergency
situations. Landlord further represents and warrants that the
critical electrical and mechanical systems of ▇▇▇ ▇▇▇▇▇ I are designed in an
isolated redundant 14N + 2R configuration with 18.2 megawatts of Critical Load
Power over the raised floor space, thus 5.633 megawatts of Critical Load Power
with N+2R redundancy, shall be available to the Premises when all infrastructure
is operational as provided herein above. [*****].
As used herein, “Critical Load
Power” shall mean the total electrical power supplied to the input
circuit breakers of the PDUs within the Premises and excluding electrical power
needed for any heat rejection or HVAC system, lighting or other common facility
systems or services.
13.3 Tenant
hereby acknowledges that the proper functioning of the Building as a data center
requires Tenant to, at all times, maintain a clean Premises
environment. In connection with the foregoing and notwithstanding
anything to the contrary contained herein, Tenant shall clean the Pods,
including the raised floor surface and subsurface, in accordance with industry
standards and procedures for cleaning first-class mission critical data center
environments; provided, however, all cleaning of subsurface environments (i.e.,
beneath the raised floor in the Premises) must be approved in advance by
Landlord, supervised by Landlord or Landlord’s agent, and performed in
accordance with Landlord’s reasonable rules and regulations for performing such
work. Tenant shall be solely responsible for providing, and shall pay
directly all janitorial and other charges relating to, such cleaning services to
the Premises.
13.4 Tenant
shall be solely responsible for the distribution of electrical power from the
load side of each PDU (including the output circuit breakers) within the
Premises to the remainder of the Premises and for the installation and related
maintenance of equipment and systems required in connection with such
distribution. Tenant shall, in no event, whether by the installation
or placement of equipment or improvements or otherwise, interfere with
Landlord’s delivery of electrical power to the line side of each PDU (up to and
including the output bus) within the Premises. All charges for, or
associated with, any service or utility which is separately measured or
submetered to the Premises (including without limitation the Critical Load Power
and charges for CRAC usage) shall be billed directly to Tenant (without any
▇▇▇▇-up by Landlord) and paid to Landlord, or, if requested in writing by
Landlord (where applicable), paid directly by Tenant to the utility
provider. In each case, payment shall be made within thirty (30) days
of Tenant’s receipt of an invoice therefor. Charges for or associated
with all other
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services
or utilities which are required to be provided by Landlord under Section 13.2
which are not separately measured shall be included in Operating Expenses and
shall be paid by Tenant each month as provided in Article IV based on Tenant’s
Pro Rata Share. Notwithstanding the foregoing, Tenant shall be
charged monthly, in advance, for electricity to be consumed to supply the
Premises with heat rejection HVAC for the following month in an amount equal to
the estimated monthly charge for Critical Load Power to be used by Tenant for
the following month (based on the prior month’s usage) multiplied by [*****]
(the “Monthly Heat
Rejection Charge”). The estimated Monthly Heat Rejection
Charges will be reconciled with the actual monthly charges for electricity used
to supply the Premises with heat rejection HVAC not less frequently than
annually and not more often than monthly. The reconciliation of
Monthly Heat Rejection Charges for any particular month shall be added to, or
subtracted from, as applicable, the Monthly Heat Rejection Charge for the month
following the date of any such reconciliation. The Monthly Heat
Rejection Charge shall be payable by Tenant on the later to occur of: (i) the
first day of the calendar month immediately following the date on which Tenant
receives an invoice from Landlord setting forth the Monthly Heat Rejection
Charge for the following month or (ii) within fifteen (15) Business Days of
receipt of such invoice from Landlord setting forth the Monthly Heat Rejection
Charge. In the event any electrical utility serving the Premises
imposes a “power factor” surcharge or similar surcharge as a result of Tenant’s
use of the Premises, including, without limitation, as a result of the power
factor of any of Tenant’s equipment, Landlord shall reasonably determine the
portion of the surcharge allocable to Tenant and invoice Tenant
therefor. Tenant shall pay amounts so invoiced within thirty (30)
days of receipt of each such invoice, accompanied by reasonable back-up
documentation. The Critical Load Power supplied to the Premises shall
be separately metered or submetered.
13.5 It is
understood and agreed that Landlord shall, prior to the Rent Commencement Date,
engage the services of a professional data center management company (together
with its successors and/or assigns, the “Management
Company”) to provide certain management services in connection with the
operation of the Building, including, without limitation, on-site facility
engineering support services, maintenance and repair required of Landlord under
this Lease and other services customary to first class data
centers. The initial Management Company shall be DuPont Fabros
Technology, L.P. In addition, DF Technical Services LLC (“DFTS”), an
affiliate of Landlord, shall be available to Tenant, on a direct contract basis
and pursuant to a separate agreement at market rates, to provide services with
respect to the Premises, including, without limitation, tenant deployment
services. To the extent that Tenant is not satisfied with the pricing
of the services of DFTS, Tenant shall have the right, subject to Article IX of
this Lease, to contract those services directly with a vendor included on
Landlord’s list of approved vendors or a vendor otherwise proposed by Tenant and
approved by Landlord (which approval shall not be unreasonably withheld,
conditioned or delayed) (each an “Approved
Vendor”). [*****]. To the extent the Management
Company carries out the duties and obligations of Landlord under this Lease,
then all restrictions and obligations imposed pursuant to this Lease on Landlord
shall be deemed to extend to the Management Company, and Landlord shall cause
the Management Company to comply with all such restrictions and
obligations.
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13.6Tenant will neither
utilize more than the Maximum Load Limit nor install any equipment which will
exceed or overload the capacity of any utility, electrical, HVAC, or mechanical
facilities in the Premises or Building, and Tenant will not bring into the
Premises or install any utility, electrical, HVAC, or mechanical facility which
Landlord does not approve, such approval not to be unreasonably withheld,
conditioned, or delayed. Notwithstanding the foregoing, provided that
Tenant’s plans for configuration of the Premises have been approved by Landlord
in accordance with Article IX above, Tenant shall not be required to obtain
Landlord’s approval to bring into the Premises, or install, any computer,
network or telecommunications equipment and facilities to be used by Tenant or
any Permitted Licensees where the installation of such equipment and/or
facilities is consistent with Tenant’s approved plans.
13.7
If any
damage is caused to the Building or the Premises by any of Tenant’s machinery,
equipment, objects or things or by overloading by Tenant as described in Section
13.6 above, Tenant will forthwith repair such damage, or, at the option of
Landlord, pay Landlord within thirty (30) days after receipt of written demand
accompanied by reasonable back-up documentation and invoices, as Additional
Rent, the cost of repairing such damage plus a sum equal to five percent (5%) of
such cost representing Landlord’s overhead and administrative
costs.
13.8
Landlord
acknowledges that Tenant’s business operations require the continuous provision
of electrical power, HVAC, and monitoring services in accordance with the
standards, and in the amounts, specified herein (collectively, the “Critical
Services”). Except as expressly set forth in this Lease,
neither Landlord nor Tenant will take any action which would interrupt the
Critical Services without the prior written consent of the other party, which
consent may be granted or withheld in such party’s sole and absolute
discretion. Landlord will use diligent and best efforts not to
interfere with or interrupt Tenant’s operations within the Premises and will
take immediate action to remedy any circumstances in which Landlord or any
Landlord Party interferes with Tenant’s Critical Services (except to the extent
expressly permitted by this Lease). In the event of any interruption
of Critical Services (a “Service
Interruption”), Tenant shall, promptly upon becoming aware thereof,
notify Landlord’s Emergency Contacts in accordance with Article V hereof; such
notice shall state with reasonable detail the nature of the interruption in
question (each such notice, an “Interruption
Notice”). Upon receipt of notice of any Interruption Notice or
upon Landlord or the Management Company otherwise gaining knowledge of any
Service Interruption, Landlord shall immediately undertake diligent efforts,
consistent with first class data center providers, to cause the Service
Interruption to be immediately remedied. Landlord shall maintain periodic
contact with Tenant until the Service Interruption is
resolved. [*****].
13.9[*****].
13.10[*****].
13.11[*****].
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ARTICLE XIV
LIABILITY
OF LANDLORD
14.1 Except as
otherwise set forth in this Lease, Landlord and Landlord’s Representatives shall
not be liable to Tenant, any Agent or any other person or entity for any and all
damage, injury, loss or claim based on or arising out of any cause whatsoever,
including without limitation the following: repair to any portion of
the Premises (except for Landlord’s maintenance, repair and replacement
obligations as set forth in Article VIII above); interruption in the use of the
Premises or any equipment therein (except for Landlord’s obligations as set
forth in Article XIII above); any accident or damage resulting from any use or
operation (by Landlord, Tenant or any other person or entity) of heating,
cooling, electrical, sewage or plumbing equipment or apparatus (except for
Landlord’s obligations as set forth in Article XIII above); termination of this
Lease by reason of damage to the Premises, the Building or the Office Building;
any fire, robbery, theft, vandalism, mysterious disappearance or any other
casualty; actions of any other tenant of the Building or the Office Building or
of any other person or entity; failure or inability to furnish any service
specified in this Lease (except for Landlord’s obligations to provide services
and utilities as provided in Article XIII); and leakage in any part of the
Premises, the Building or the Office Building from water, rain, ice or snow that
may leak into, or flow from, any part of the Premises, the Building or the
Office Building, or from drains, pipes or plumbing fixtures in the Premises, the
Building or the Office Building. If any condition exists which may be
the basis of a claim of constructive eviction, then Tenant shall give Landlord
written notice thereof and a reasonable opportunity to correct such condition,
and in the interim Tenant shall not claim that it has been constructively
evicted or is entitled to a rent abatement. Any property placed by
Tenant or any Agent in or about the Premises, the Building or the Office
Building shall be at the sole risk of Tenant, and Landlord shall not in any
manner be held responsible therefor. Any person receiving an article
delivered for Tenant shall be acting as Tenant’s agent for such purpose and not
as Landlord’s agent. For purposes of this Article XIV, the term
“Building” shall be deemed to include the Land. Notwithstanding the
foregoing provisions of this Section 14.1, and subject to Section 12.2(b) above,
Landlord shall not be released from liability (a) to Tenant for any physical
injury to any natural person or damage to Tenant’s personal property caused by
the negligence or willful misconduct of Landlord or Landlord’s Representatives,
provided that for damage to personal property, Landlord shall only be liable to
the extent that such damage is not covered by insurance either carried by Tenant
or required by this Lease to be carried by Tenant or (b) to the
extent resulting from the breach or default by Landlord of its representations,
warranties, covenants, duties and/or obligations under this Lease; provided,
however, that neither Landlord nor any of Landlord’s Representatives (nor any
past, present or future board member, partner, trustee, director, member,
officer, employee, agent, representative or advisor of any of them) shall under
any circumstances under this Lease (including, without limitation, with respect
to its reimbursement and indemnity obligations set forth in Section 14.2(b)
below) be liable for: (i) any exemplary or punitive damages or (ii) any
consequential or indirect damages (or for any interruption of or loss to
business) to the extent that (A) Landlord is not covered therefor by insurance
carried, or required to be carried under
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Lease, and (B) provided that Landlord is carrying such required insurance,
Landlord does not receive proceeds therefor, all in connection with or relating
to this Lease.
14.2 (a) Except
to the extent caused by the negligence or willful misconduct of Landlord or its
agents, and subject to Section 12.3 above, Tenant shall reimburse Landlord, its
employees and agents for (as additional rent), and shall indemnify, defend upon
request and hold them harmless from and against all reasonable costs, damages,
claims, liabilities, expenses (including reasonable attorneys’ fees), losses,
penalties and court costs (collectively, “Costs”)
suffered by or claimed against them, directly or indirectly, based on or arising
out of, in whole or in part, (i) use and occupancy of the Premises or the
business conducted therein, (ii) any negligent or willful act or omission of
Tenant or any Agent, (iii) any breach of Tenant’s obligations under this Lease,
including failure to comply with Laws or surrender the Premises upon the
expiration or earlier termination of the Lease Term, or (iv) any entry by Tenant
or any Agent upon the Land prior to the Rent Commencement Date in violation of
the terms and provisions of this Lease. In no event, however, shall
Tenant, Guarantor (as hereinafter defined), or any of Tenant’s Representatives
(nor any past, present or future board member, partner, trustee, director,
member, officer, employee, agent, representative or advisor of any of them),
under any circumstances under this Section 14.2(a) or elsewhere under this
Lease, be liable for: (I) any exemplary or punitive damages or (II) any
consequential or indirect damages (or for any interruption of or loss to
business) to the extent that (A) Tenant is not covered therefor by insurance
carried, or required to be carried under this Lease, and (B) provided that
Tenant is carrying such required insurance, Tenant does not receive insurance
proceeds therefor.
(b) Except to
the extent caused by the negligence or willful misconduct of Tenant or an Agent
of Tenant, and subject to Section 12.2(b) above, Landlord shall reimburse Tenant
and shall indemnify and hold Tenant harmless from and against all Costs suffered
or claimed against Tenant as a result of: (i) Landlord’s use or control of the
common areas of the Building and/or the Office Building and the Building
Structure and Systems, (ii) any negligent or willful act or omission of
Landlord, its agents, employees or contractors, or (iii) any breach of
Landlord’s obligations under this Lease.
14.3 No
landlord hereunder shall be liable for any obligation or liability based on or
arising out of any event or condition occurring during the period that such
landlord was not the owner of the Property. Within five (5) days
after request, Tenant shall attorn to any transferee landlord and execute,
acknowledge and deliver any document submitted to Tenant confirming such
attornment, provided such transferee assumes in writing, the obligations of
Landlord hereunder which accrue from and after the date of the
transfer.
14.4 Except as
otherwise expressly provided herein (including, without limitation, as set forth
in the Services Exhibit attached hereto as Exhibit F), Tenant
shall not have the right to set off or deduct any amount allegedly owed to
Tenant pursuant to any claim against Landlord from any rent or other sum payable
to Landlord. Tenant’s sole remedy for recovering upon such claim
shall be to institute an independent action against Landlord, which action shall
not be consolidated with any action of Landlord; provided, however, that the
foregoing shall not prohibit Tenant from asserting a compulsory counterclaim in
any proceeding instituted by
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against the Tenant that is required to be brought by applicable Laws and will be
deemed forever waived if not then asserted by Tenant.
14.5
If Tenant
or any Agent is awarded a money judgment against Landlord, then recourse for
satisfaction of such judgment shall be limited to execution against Landlord’s
estate and interest in the Land, the Building, the Office Building and any other
improvements constructed or to be constructed on the Land, which shall be deemed
to include proceeds actually received by Landlord from any sale of the Building,
the Office Building and/or CH1 Phase 1 (net of all expenses of sale), insurance
or condemnation proceeds (subject to the rights of any Mortgagees), and rental
income from the Building, the Office Building and/or CH1 Phase II (net of all
expenses). No other asset of Landlord, and no asset of any of Landlord’s
Representatives (or any past, present or future board member, partner, director,
member, officer, trustee, employee, agent, representative or advisor of any of
them (each, an “officer”)) or any other person or entity, shall be available to
satisfy or be subject to any such judgment. No such Landlord’s
Representative, officer or other person or entity shall be held to have personal
liability for satisfaction of any claim or judgment whatsoever under this
Lease.
ARTICLE
XV
RULES
AND REGULATIONS
Tenant agrees to comply with and
observe the rules and regulations pertaining to the use and occupancy of the
Premises or the Building or the Office Building set forth in Exhibit E attached
hereto, together with all reasonable amendments thereto as may be promulgated in
writing hereafter by Landlord in accordance with the terms and provisions of
this Section 15.1 (the “Rules and
Regulations”). Tenant’s failure to keep and observe said Rules
and Regulations after notice and opportunity to cure as set forth in Section
18.1(b) hereof shall constitute a material breach of the terms of this
Lease. Landlord reserves the right from time to time to reasonably
amend or supplement said Rules and Regulations and to adopt and promulgate
additional reasonable Rules and Regulations applicable to the Premises and the
Building, provided, that any such amendments, supplements or additional Rules
and Regulations shall not materially reduce Tenant’s rights under this Lease or
materially interfere with Tenant’s use of the Premises. Upon receipt
thereof, Tenant agrees thereupon to comply with and observe any such additional,
amended or supplemental Rules and Regulations promulgated by Landlord in
accordance with this Section 15.1. In the event of any inconsistency
between this Lease and the Rules and Regulations, the provisions of this Lease
shall prevail and control. Any violation of the Rules and Regulations
by any individual that is not under Tenant’s control shall not constitute a
default under this Lease. Landlord shall apply and enforce the Rules
and Regulations in a uniform and non-discriminatory manner.
ARTICLE
XVI
DAMAGE
OR DESTRUCTION
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16.1 If, during or prior to
the Lease Term, the Pods, the Storage Space and/or the Building are totally or
partially damaged or destroyed thereby rendering the Pods and/or the Storage
Space totally or partially inaccessible or unusable, then Landlord shall
diligently repair and restore the Pods, the Storage Space and/or the Building to
substantially the same condition they were in prior to such damage or
destruction; provided, however, that if: (i) the Building electrical
and mechanical infrastructure is destroyed or materially damaged and in
Landlord’s reasonable judgment such repair and restoration cannot be completed
within one hundred eighty (180) days after the occurrence of such damage or
destruction (taking into account the time needed for effecting a satisfactory
settlement with any insurance company involved, removal of debris, preparation
of plans and issuance of all required government permits); (ii) more than
forty-five percent (45%) of the Building is damaged or destroyed; or (iii) more
than fifty-five percent (55%) of the rentable square footage comprising the Pods
is materially damaged or destroyed and there is less than one (1) year of the
Lease Term remaining as of the date of said casualty and Tenant has not
exercised any remaining option to renew the Lease Term, then Landlord shall have
the right to terminate this Lease, but only with respect to the entirety of the
Premises, by giving written notice of termination to Tenant within forty-five
(45) days after the occurrence of such damage or destruction. If this
Lease is terminated pursuant to this Article XVI, then rent shall be apportioned
as of the date of the happening of the damage or destruction (based on the
portion of the aggregate amount of rentable square footage of the Pods and
Critical Load Power which is usable or used after such damage or destruction)
and paid to the earlier of the date of termination or the date Tenant completely
vacates and abandons the Premises on account of such damage. If this
Lease is not terminated as a result of such damage or destruction, then until
such repair and restoration of the affected Pods, the Storage Space and/or the
Building are substantially complete, as of the date of the happening of the
damage or destruction, Tenant shall be required to pay rent only for the portion
of the Storage Space and/or the Pods and Critical Load Power that is usable
while such repair and restoration are being made; provided, however, that if
such damage or destruction was caused by the grossly negligent or willful
misconduct of Tenant or any Agent, then Tenant shall not be entitled to any such
rent reduction. After receipt of all insurance proceeds (including
proceeds of insurance maintained by Tenant), Landlord shall diligently proceed
with, and bear the expenses of, such repair and restoration of the Storage
Space, the Pods and/or the Building as aforesaid; provided, however, that (a) if
such damage or destruction was caused by the grossly negligent or willful
misconduct of Tenant or any Agent, then Tenant shall pay Landlord’s deductible
and (b) Landlord shall not be required to repair or restore any tenant
improvements installed by Tenant in the Pods and/or the Storage Space (except to
the extent Landlord receives proceeds therefor from Tenant’s insurance), any
Alterations [*****] (other than Tenant’s trade fixtures, decorations,
furnishings, equipment, facilities and/or personal property)] or any of Tenant’s
contents within the Pods and/or the Storage Space (including, without
limitation, Tenant’s trade fixtures, decorations, furnishings, equipment,
facilities or personal property, but excluding PDUs, CRACs, HVAC cooling support
equipment, fire detection and alarm and fire suppression systems and equipment
and any other equipment, facilities or other property of Landlord comprising the
Building Structure and Systems and located within the Premises, which shall be
Landlord’s responsibility). Notwithstanding anything herein to the
contrary, in the event of any damage or destruction referenced in the first
sentence of this Section 16.1, Landlord shall have the right to
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terminate
this Lease if (1) insurance proceeds plus deductibles are insufficient to pay
the full cost of repair and restoration of such damage or destruction, so long
as Landlord maintains the insurance required by Section 12.3 above, (2) the
holder of any Mortgage fails or refuses to make such insurance proceeds
available for such repair and restoration, or (3) zoning or other applicable
Laws or regulations do not permit such repair and restoration; provided,
however, that Landlord shall be entitled to terminate this Lease under
subsections (1), (2) and (3) above only if Landlord simultaneously terminates
the leases (or applicable portions thereof) of all other tenants leasing pods
that are in a substantially similar condition to the Pods after such damage or
destruction. If this Lease is terminated pursuant to this Article
XVI, Landlord shall grant to Tenant a license, expiring ninety (90) days after
the date of termination, allowing Tenant the right to access the Building for
the purpose of removing Tenant’s Items therefrom.
16.2 [*****].
16.3 [*****].
16.4 If,
during or prior to the Lease Term, the Office Space or the Office Building are
totally or partially damaged or destroyed thereby rendering the Office Space
totally or partially inaccessible or unusable, then Landlord shall diligently
repair and restore the Office Space and/or the Office Building to substantially
the same condition they were in prior to such damage or destruction; provided,
however, that if in Landlord’s reasonable judgment such repair and restoration
cannot be completed within two hundred ten (210) days after the occurrence of
such damage or destruction (taking into account the time needed for effecting a
satisfactory settlement with any insurance company involved, removal of debris,
preparation of plans and issuance of all required governmental permits), then
Landlord shall have the right to terminate this Lease as to the Office Space
only, by giving written notice of termination within forty-five (45) days after
the occurrence of such damage or destruction. If this Lease is
terminated as to the Office Space pursuant to this Section 16.4, then Office
Rent shall be apportioned as of the date of the happening of the damage or
destruction (based on the portion of the Office Space which is usable or used
after such damage or destruction) and paid to the earlier of the date of
termination or the date Tenant completely vacates and abandons the Office Space
on account of such damage. If this Lease is not terminated as to the
Office Space as a result of such damage or destruction, then until such repair
and restoration of the Office Space and/or Office Building are substantially
complete, as of the date of the happening of the damage or destruction, Tenant
shall be required to pay Office Rent only for the portion of the Office Space
that is usable while such repair and restoration are being made; provided,
however, that if such damage or destruction was caused by the grossly negligent
or willful misconduct of Tenant or any Agent, then Tenant shall not be entitled
to any such rent reduction. After receipt of all insurance proceeds
(including proceeds of insurance maintained by Tenant), Landlord shall
diligently proceed with, and bear the expenses of, such repair and restoration
of the Office Space and/or the Office Building as aforesaid; provided, however,
that (a) if such damage or destruction was caused by the grossly negligent or
willful misconduct of Tenant or any Agent, then Tenant shall pay Landlord’s
deductible and (b) Landlord shall not be required to repair or restore any
tenant improvements installed by Tenant in the Office Space (except to the
extent Landlord receives proceeds therefor from Tenant’s
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insurance),
any Alterations in the Office Space [*****] (other than Tenant’s trade fixtures,
decorations, furnishings, equipment, facilities and/or personal property)] or
any of Tenant’s contents within the Office Space (including, without limitation,
Tenant’s trade fixtures, decorations, furnishings, equipment, facilities or
personal property, but excluding HVAC cooling support equipment, fire detection
and alarm and fire suppression systems and equipment and any other equipment,
facilities or other property of Landlord comprising the Building Structure and
Systems and located within the Office Space, which shall be Landlord’s
responsibility). Notwithstanding anything herein to the contrary, in
the event of any damage or destruction to the Office Building referenced in the
first sentence of this Section 16.4, Landlord shall have the right to terminate
this Lease as to the Office Space only if (1) insurance proceeds plus
deductibles are insufficient to pay the full cost of repair and restoration of
such damage or destruction, so long as Landlord maintains the insurance required
by Section 12.3 above, (2) the holder of any Mortgage fails or refuses to make
such insurance proceeds available for such repair and restoration, (3) zoning or
other applicable Laws or regulations do not permit such repair and restoration,
or (4) the damage to the Office Building exceeds forty-five percent (45%) of the
replacement value of the Office Building; provided, however, that Landlord shall
be entitled to terminate this Lease as to the Office Space under subsections
(1), (2), (3) and/or (4) above only if Landlord simultaneously terminates the
leases (or applicable portions thereof) of all other tenants leasing space in
the Office Building, that are in a substantially similar condition to the Office
Space after such damage or destruction. If this Lease is terminated
pursuant to this Section 16.4, Landlord shall grant to Tenant a license,
expiring ninety (90) days after the date of termination, allowing Tenant the
right to access the Office Building for the purpose of removing Tenant’s Items
therefrom.
16.5
If,
within forty five (45) days after the occurrence of the damage or destruction to
the Office Building described in Section 16.4 above, Landlord determines in its
sole but reasonable judgment that the repairs and restoration cannot be
substantially completed within two hundred ten (210) days after the date of such
damage or destruction, and Landlord does not elect to terminate this Lease
pursuant to Section 16.4, then Landlord shall notify Tenant of such
determination within such forty-five (45) day period (the “Restoration
Notice”). For a period continuing through the later of the
thirtieth (30th) day after the occurrence of such damage or destruction to the
Office Building or the tenth (10th) day after receipt of such notice, Tenant
shall have the right to terminate this Lease as to the Office Space only by
providing written notice to Landlord (which date of such termination shall be
not more than thirty (30) days after the date of Tenant’s notice to
Landlord). Furthermore, Landlord shall notify Tenant in writing (the
“Insurance
Proceeds Notice”) within forty-five (45) days after the occurrence of the
damage or destruction to the Office Building described in Section 16.4 above as
to whether the holder of any Mortgage fails or refuses to make insurance
proceeds available for the repair and restoration required under Section 16.4
above. In the event Tenant receives any such Insurance Proceeds
Notice from Landlord providing that the holder of any Mortgage fails or refuses
to make such insurance proceeds available, and Landlord does not elect to
terminate this Lease as to the Office Space pursuant to Section 16.4 above
within such forty-five (45) day period, then Tenant shall have the right to
terminate this Lease as to the Office Space only by providing written notice
thereof to Landlord within ten (10) days after the expiration of such forty-five
(45)
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period (which date of such termination shall be not more than thirty (30) days
after the date of Tenant’s notice to Landlord). Failure of Landlord
to deliver the Insurance Proceeds Notice to Tenant within such forty-five (45)
day period as aforesaid shall be deemed notice that the holder of any Mortgage
fails or refuses to make such insurance proceeds
available. Notwithstanding any of the foregoing to the contrary,
Tenant shall not have the right to terminate this Lease as the Office Space
under this Section 16.5 if the willful misconduct of Tenant or any Agent shall
have caused the damage or destruction.
ARTICLE
XVII
CONDEMNATION
17.1 If one
third or more of the Pods, or the use or occupancy thereof, or any portion of
the Building required for the reasonable and proper use of the Pods, shall be
taken or condemned by any governmental or quasi governmental authority for any
public or quasi public use or purpose or sold under threat of such a taking or
condemnation (collectively, “condemned”),
then this Lease shall terminate on the day prior to the date title thereto vests
in such authority and rent shall be apportioned as of such date. If
less than one third of the Pods or occupancy thereof or portions of the Building
not required for the proper use of the Pods or the Building, is condemned, then
this Lease shall continue in full force and effect as to the part of the Pods
not so condemned, except that as of the date title vests in such authority
Tenant shall not be required to pay rent with respect to the part of the Pods so
condemned. Landlord shall notify Tenant of any condemnation
contemplated by this Section 17.1 promptly after Landlord receives notice
thereof. Within ten (10) days after receipt of such notice, Tenant
shall have the right to terminate this Lease with respect to the remainder of
the Pods not so condemned as of the date title vests in such authority, but only
if such condemnation renders said remainder of the Pods totally unusable for
their intended purpose. Notwithstanding anything herein to the
contrary, if thirty-five percent (35%) or more of the Land or the Building is
condemned, then whether or not any portion of the Pods is condemned, Landlord
shall have the right to terminate this Lease as of the date title vests in such
authority, provided, that, as a condition to such right, Landlord must
simultaneously terminate the leases (or applicable portions thereof) of all
other tenants in the Building leasing pods that are affected in a substantially
similar manner as the Pods by such condemnation.
17.2 If one
third or more of the Office Space, or the use or occupancy thereof, or any
portion of the Office Building required for the reasonable and proper use of the
Office Space, shall be taken or condemned by any governmental or quasi
governmental authority for any public or quasi public use or purpose or sold
under threat of such a taking or condemnation (collectively, “condemned”),
then this Lease shall terminate as to the Office Space only on the day prior to
the date title thereto vests in such authority and Office Rent shall be
apportioned as of such date. If less than one third of the Office
Space or occupancy thereof or portions of the Office Building not required for
the proper use of the Office Space or the Office Building, is condemned, then
this Lease shall continue in full force and effect as to the part of the Office
Space not so condemned, except that as of the date title vests in such authority
Tenant shall not
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required to pay rent with respect to the part of the Office so
condemned. Landlord shall notify Tenant of any condemnation of the
Office Building contemplated by this Section 17.2 promptly after Landlord
receives notice thereof. Within ten (10) days after receipt of such
notice, Tenant shall have the right to terminate this Lease with respect to the
remainder of the Office Space not so condemned as of the date title vests in
such authority, but only if such condemnation renders said remainder of the
Office Space totally unusable for their intended
purpose. Notwithstanding anything herein to the contrary, if
thirty-five percent (35%) or more of the Office Building is condemned, then
whether or not any portion of the Office Space is condemned, Landlord shall have
the right to terminate this Lease as to the Office Space only as of the date
title vests in such authority, provided, that, as a condition to such right,
Landlord must simultaneously terminate the leases (or applicable portions
thereof) of all other tenants in the Office Building leasing Office Space that
are affected in a substantially similar manner as the Office Space by such
condemnation.
17.3 All
awards, damages and other compensation paid by the condemning authority on
account of any such taking or condemnation (or sale under threat of such a
taking) shall belong to Landlord, and Tenant hereby assigns to Landlord all
rights to such awards, damages and compensation. Tenant agrees not to
make any claim against Landlord or the condemning authority for any portion of
such award or compensation attributable to damages to the Premises, the value of
the unexpired term of this Lease, the loss of profits or goodwill, leasehold
improvements or severance damages. Nothing contained herein, however,
shall prevent Tenant from pursuing a separate claim against the condemning
authority for the value of furnishings, equipment and trade fixtures installed
in the Premises at Tenant’s expense and for relocation expenses, provided that
such claim does not in any way diminish the award or compensation payable to or
recoverable by Landlord in connection with such taking or
condemnation.
ARTICLE
XVIII
DEFAULT
18.1 Each of
the following shall constitute an “Event of
Default” by Tenant under this Lease:
(a) Tenant’s
failure to make when due any payment of Base Rent, Additional Rent or other sum,
which failure shall continue for a period of five (5) days after receipt by
Tenant of written notice thereof; provided, however, that Landlord shall not be
required to give Tenant more than two (2) such written notices during any Lease
Year during the Lease Term;
(b) Tenant’s
failure to perform or observe any covenant or condition of this Lease not
otherwise specifically described in this Section 18.1, which failure shall
continue for a period of thirty (30) days after receipt by Tenant of written
notice thereof; provided, however, that if such cure cannot reasonably be
effected within such thirty (30) day period and Tenant begins such cure promptly
within such thirty (30) day period and is pursuing such cure in good faith and
with diligence and continuity during such thirty (30) day period, then, except
in the
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an emergency, Tenant shall have such additional time as is reasonably necessary
to effect such cure;
(c) an Event
of Bankruptcy as specified in Article XIX hereof;
(d) Tenant’s
dissolution or liquidation;
(e) any
Environmental Default as specified in Section 6.3 hereof;
(f) Tenant’s
failure to execute, acknowledge and deliver the written statement required by
Section 24.4 hereof after receipt by Tenant of written notice thereof and a ten
(10) day cure period;
(g) excluding
any sublease or assignment requiring Landlord’s consent but that Tenant believed
in good faith was permitted under Section 7.2(b) above, any sublease, assignment
or mortgage not permitted by Article VII hereof;
(h) the
occurrence of [*****] Prohibited Spikes [*****].
18.2 If there
shall be an Event of Default (even if prior to the Rent Commencement Date), then
the provisions of this Section 18.2 shall apply. Landlord shall have
the right, at its sole option, to terminate this Lease upon delivery of written
notice to Tenant. In addition, with or without terminating this
Lease, Landlord may re-enter, terminate Tenant’s right of possession and take
possession of the Premises. The provisions of this Article XVIII
shall operate as a notice to quit, and Tenant hereby waives any other notice to
quit or notice of Landlord’s intention to re-enter the Premises. If
necessary, Landlord may proceed to recover possession of the Premises under
applicable Laws, or by such other proceedings, including re entry and
possession, as may be applicable. If Landlord elects to terminate
this Lease and/or elects to terminate Tenant’s right of possession, everything
contained in this Lease on the part of Landlord to be done and performed shall
cease without prejudice, however, to Tenant’s liability for all Base Rent,
additional rent and other sums specified herein. Whether or not this
Lease and/or Tenant’s right of possession is terminated, Landlord shall have the
right, at its sole option, to terminate any renewal or expansion right contained
in this Lease and to grant or withhold any consent or approval pursuant to this
Lease in its sole and absolute discretion. If an Event of Default has
occurred under this Lease and Tenant has vacated the Premises, and if Landlord
has terminated this Lease as a result of such Event of Default, then Landlord
shall thereafter use reasonable efforts to relet the Premises; provided,
however, that Tenant understands and agrees that Landlord’s main priority will
be the leasing of other space in the Building (and not then leased by Landlord),
and the reletting of the Premises will be of lower priority. Tenant
hereby expressly waives, for itself and all persons claiming by, through or
under it, any right of redemption, re-entry or restoration of the operation of
this Lease under any present or future Law, including without limitation any
such right which Tenant would otherwise have in case Tenant shall be
dispossessed for any cause, or in case Landlord shall obtain possession of the
Premises as herein provided. Landlord may relet the Premises or any
part thereof, alone or together with other premises, for such term(s) (which may
extend beyond the date on which the
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Term would have expired but for Tenant’s default) and on such terms and
conditions (which may include any concessions or allowances granted by Landlord)
as Landlord, in its sole and absolute but reasonable discretion, may determine,
but Landlord shall not be liable for, nor shall Tenant’s obligations hereunder
be diminished by reason of, any failure by Landlord to relet all or any portion
of the Premises or to collect any rent due upon such
reletting. Whether or not this Lease is terminated or any suit is
instituted, Tenant shall be liable for any Base Rent, additional rent, damages
or other sum which may be due or sustained prior to such Event of Default, and
for all costs, fees and expenses (including, but not limited to, attorneys’ fees
and costs, brokerage fees (to the extent proportionately allocable to the
remaining Lease Term), expenses incurred in placing the Premises in first class
rentable condition, advertising expenses, and any concessions or allowances
granted by Landlord) incurred by Landlord in pursuit of its remedies hereunder
and/or in recovering possession of the Premises and renting the Premises to
others from time to time until the date the Lease Term would have expired but
for Tenant’s default. Tenant also shall be liable for additional
damages which at Landlord’s election shall be either: (a) an amount equal to the
Base Rent and additional rent due or which would have become due from the date
of Tenant’s default through the remainder of the Lease Term, less the amount of
rental, if any, which Landlord receives during such period from others to whom
the Premises may be rented (other than any additional rent received by Landlord
as a result of any failure of such other person to perform any of its
obligations to Landlord), which amount shall be computed and payable in monthly
installments, in advance, on the first day of each calendar month following
Tenant’s default and continuing until the date on which the Lease Term would
have expired but for Tenant’s default, it being understood that separate suits
may be brought from time to time to collect any such damages for any month(s)
(and any such separate suit shall not in any manner prejudice the right of
Landlord to collect any damages for any subsequent month(s)), or Landlord may
defer initiating any such suit until after the expiration of the Lease Term (in
which event such deferral shall not be construed as a waiver of Landlord’s
rights as set forth herein and Landlord’s cause of action shall be deemed not to
have accrued until the expiration of the Lease Term); or (b) an amount equal to
the difference between (i) all Base Rent, additional rent and other sums due or
which would be due and payable under this Lease as of the date of Tenant’s
default through the end of the scheduled Lease Term, and (ii) the fair market
value rental of the Premises over the same period (net of all expenses
(including attorneys’ fees) and all vacancy periods reasonably projected by
Landlord to be incurred in connection with the reletting of the Premises), as
determined by Landlord in its sole and absolute discretion, which difference
shall be discounted at a rate equal to one (1) whole percentage point above the
discount rate in effect on the date of payment at the Federal Reserve Bank
nearest the Building, and which resulting amount shall be payable to Landlord in
a lump sum on demand, it being understood that upon payment of such liquidated
and agreed final damages, Tenant shall be released from further liability under
this Lease with respect to the period after the date of such payment, and that
Landlord may bring suit to collect any such damages at any time after an Event
of Default shall have occurred. Tenant shall pay all expenses
(including attorneys’ fees) incurred by Landlord in connection with or as a
result of any Event of Default whether or not a suit is
instituted. The provisions contained in this Section 18.2 shall be in
addition to, and shall not prevent the enforcement of, any claim Landlord may
have against Tenant for anticipatory breach of this Lease (including, without
limitation, the right of injunction and the right to invoke
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any
remedy allowed at law or in equity as if re-entry, summary proceedings and other
remedies were not provided for herein). Nothing herein shall be
construed to affect or prejudice Landlord’s right to prove, and claim in full,
unpaid rent accrued prior to termination of this Lease. If Landlord
is entitled, or Tenant is required, pursuant to any provision hereof to take any
action upon the termination of the Lease Term, then Landlord shall be entitled,
and Tenant shall be required, to take such action also upon the termination of
Tenant’s right of possession.
18.3 All
rights and remedies of Landlord set forth herein are cumulative and in addition
to all other rights and remedies available to Landlord at law or in equity
including those available for anticipatory breach. The exercise by
Landlord of any such right or remedy shall not prevent the concurrent or
subsequent exercise of any other right or remedy. No delay in the
enforcement or exercise of any right or remedy by Landlord or Tenant shall
constitute a waiver of any default by the other party hereunder or of such
party’s rights or remedies in connection therewith. Neither party
hereto shall be deemed to have waived any default by the other party hereunder
unless such waiver is set forth in a written instrument signed by the party
against whom such waiver is asserted. If either party waives in
writing any default by Tenant, such waiver shall not be construed as a waiver of
any covenant, condition or agreement set forth in this Lease except as to
specific circumstances described in such written waiver.
18.4 If
Landlord shall institute proceedings against Tenant and a compromise or
settlement thereof shall be made, the same shall not constitute a waiver of
default or of any other covenant, condition or agreement set forth herein, nor
of any of Landlord’s rights hereunder, except to the extent agreed by Landlord
in writing in connection with such compromise or settlement. Neither
the payment by Tenant of a lesser amount than the installments of Base Rent,
Additional Rent or of any sums due hereunder nor any endorsement or statement on
any check or letter accompanying a check for payment of rent or other sums
payable hereunder shall be deemed an accord and satisfaction, and Landlord may
accept such check or payment without prejudice to Landlord’s right to recover
the balance of such rent or other sums or to pursue any other remedy available
to Landlord. Notwithstanding any request or designation by Tenant,
Landlord may apply any payment received from Tenant to any payment then
due. No re-entry by Landlord, and no acceptance by Landlord of keys
from Tenant, shall be considered an acceptance of a surrender of this
Lease.
18.5 If Tenant
defaults in the making of any payment or in the doing of any act herein required
to be made or done by Tenant, then Landlord may, but shall not be required to,
make such payment or do such act after Landlord delivers written notice to
Tenant. If Landlord elects to make such payment or do such act, all
costs incurred by Landlord, plus interest thereon at the rate per annum which is
three percent (3%) higher than the prime rate published in the Money Rates
section of the Wall Street Journal (the “Prime
Rate”) from the date paid by Landlord to the date of payment thereof by
Tenant, shall constitute Additional Rent hereunder and shall be immediately paid
by Tenant to Landlord; provided, however, that nothing contained herein shall be
construed as permitting Landlord to charge or receive interest in excess of the
maximum rate then allowed by law. The taking of such action by
Landlord shall not be considered as a cure of
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such
default by Tenant or prevent Landlord from pursuing any remedy it is otherwise
entitled to in connection with such default.
18.6 If Tenant
fails, on more than two (2) occasions in any Lease Year during the Lease Term,
to make any payment of Base Rent on or before the date that is five (5) Business
Days after such payment is due and payable, and provided Landlord has notified
Tenant of each such failure in writing, then Tenant shall pay to Landlord a late
charge of two percent (2%) of the amount of such payment of Base
Rent. If Tenant fails to make any payment of Base Rent or Additional
Rent on or before the date such payment is due and payable, such payment shall
bear interest at the rate per annum which is three percent (3%) higher than the
Prime Rate from the date such payment became due to the date of payment thereof
by Tenant; provided, however, that nothing contained herein shall be construed
as permitting Landlord to charge or receive interest in excess of the maximum
rate then allowed by law. Such interest shall constitute Additional
Rent due and payable hereunder with the next installment of Base Rent due
hereunder.
ARTICLE
XIX
BANKRUPTCY
19.1 An “Event of
Bankruptcy” is the occurrence with respect to any of Tenant, a guarantor
or any other person liable for Tenant’s obligations hereunder (including,
without limitation, any general partner of Tenant (a “General
Partner”)) of any of the following: (a) such person becoming
insolvent, as that term is defined in Title 11 of the United States
Code (the “Bankruptcy
Code”) or under the insolvency laws of any state (the “Insolvency
Laws”); (b) appointment of a receiver or custodian for any property of
such person, or the institution of a foreclosure or attachment action upon any
property of such person; (c) filing by such person of a voluntary petition under
the provisions of the Bankruptcy Code or Insolvency Laws; (d) filing of an
involuntary petition against such person as the subject debtor under the
Bankruptcy Code or Insolvency Laws, which either (1) is not dismissed within
sixty (60) days after filing, or (2) results in the issuance of an order for
relief against the debtor; (e) such person making or consenting to an assignment
for the benefit of creditors or a composition of creditors; or (f) an admission
by Tenant or Guarantor of its inability to pay debts as they become
due. At any time (but in no event more than one (1) time during any
calendar year unless Landlord reasonably and in good faith believes that a
substantial change in Tenant’s financial condition shall have occurred) upon not
less than ten (10) days’ prior written notice, Tenant shall submit such
information concerning the financial condition of any such person as Landlord
may reasonably request. Tenant warrants that all such information
heretofore and hereafter submitted is and shall be correct and
complete.
19.2 Upon
occurrence of an Event of Bankruptcy, Landlord shall have all rights and
remedies available pursuant to Article XVIII above; provided, however, that
while a case (the “Case”) in
which Tenant is the subject debtor under the Bankruptcy Code is pending,
Landlord’s right to terminate this Lease shall be subject, to the extent
required by the Bankruptcy Code, to any rights of Tenant or its trustee in
bankruptcy (collectively, “Trustee”)
to assume or assume
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COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
and
assign this Lease pursuant to the Bankruptcy Code. After the
commencement of a Case: (i) Trustee shall perform all post petition
obligations of Tenant under this Lease; and (ii) if Landlord is entitled to
damages (including, without limitation, unpaid rent) pursuant to the terms of
this Lease, then all such damages shall be entitled to administrative expense
priority pursuant to the Bankruptcy Code. Any person or entity to
which this Lease is assigned pursuant to the Bankruptcy Code shall be deemed
without further act or deed to have assumed all of the obligations arising under
this Lease on and after the date of assignment, and any such assignee shall upon
request execute and deliver to Landlord an instrument confirming such
assumption. Trustee shall not have the right to assume or assume and
assign this Lease unless Trustee promptly (a) cures all defaults under this
Lease, (b) compensates Landlord for damages incurred as a result of such
defaults, (c) provides adequate assurance of future performance on the part of
Trustee as debtor in possession or Trustee’s assignee, and (d) complies with all
other requirements of the Bankruptcy Code. If Trustee desires to
assume and assign this Lease to any person who shall have made a bona fide
offer, then Trustee shall give Landlord written notice of such proposed
assignment (which notice shall set forth the name and address of such person,
all of the terms and conditions of such offer, and the adequate assurance to be
provided Landlord to assure such person’s future performance under this Lease)
no later than fifteen (15) days after receipt by Trustee of such offer, but in
no event later than thirty (30) days prior to the date Trustee shall make
application to the appropriate court for authority and approval to enter into
such assignment and assumption, and Landlord shall thereupon have the prior
right and option, to be exercised by notice to Trustee given at any time prior
to the effective date of such proposed assignment, to accept (or to cause
Landlord’s designee to accept) an assignment of this Lease upon the same terms
and conditions and for the same consideration, if any, as the bona fide offer
made by such person, less any brokerage commissions which may be payable out of
the consideration to be paid by such person for the assignment of this
Lease. If Trustee fails to assume or assume and assign this Lease in
accordance with the requirements of the Bankruptcy Code within sixty (60) days
after the initiation of the Case (or such other period as may be provided by the
Bankruptcy Code or allowed by the United States Bankruptcy Court for same), then
Trustee shall be deemed to have rejected this Lease. If this Lease is
rejected or deemed rejected, then Landlord shall have all rights and remedies
available to it pursuant to Article XVIII above.
ARTICLE
XX
SUBORDINATION
MORTGAGES
20.1 Subject
to the terms and provisions of Section 20.3 below, this Lease is subject and
subordinate to the lien, provisions, operation and effect of all mortgages,
deeds of trust, ground leases or other security instruments which may now or
hereafter encumber any portion of the Building, the Office Building and/or the
Land (collectively, “Mortgages”),
to all funds and indebtedness intended to be secured thereby, and to all
renewals, extensions, modifications, recastings or refinancings
thereof. Said subordination and the provisions of this Section shall
be self operative and no further instrument of subordination shall be required
by the holder of any Mortgage. The holder of any Mortgage to which
this Lease is subordinate shall have the right
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COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
(subject
to any required approval of the holders of any superior Mortgage) at any time to
declare this Lease to be superior to the lien, provisions, operation and effect
of such Mortgage.
20.2 Tenant
shall, at Landlord’s request, promptly execute any requisite or appropriate
document confirming such subordination. Tenant waives the provisions
of any statute or rule of law now or hereafter in effect which may give or
purport to give Tenant any right to terminate or otherwise adversely affect this
Lease and Tenant’s obligations hereunder in the event any foreclosure proceeding
is prosecuted or completed or in the event the Building, the Office Building,
the Land or Landlord’s interest therein is transferred by foreclosure, by deed
in lieu of foreclosure or otherwise. At the request of any transferee
and assumption of Landlord’s obligations as required hereby, Tenant shall attorn
to such transferee and shall recognize such transferee as the landlord under
this Lease. Within ten (10) days after the request of such
transferee, Tenant shall execute acknowledge and deliver any requisite or
appropriate document submitted to Tenant confirming such
attornment.
20.3 Notwithstanding
anything to the contrary contained herein, the effectiveness of any
subordination by Tenant to any Mortgage as provided herein above shall be
subject to the condition that Landlord obtain from the holder of any such
Mortgage a non-disturbance agreement, in form reasonably acceptable to Tenant,
that provides: (a) so long as Tenant is not in default under this Lease beyond
any applicable notice and cure period and (b) Tenant agrees to attorn to the
holder of any such Mortgage or to any transferee in connection with any
foreclosure, or sale or transfer in lieu thereof, and recognize such party as
landlord under this Lease, as provided in Section 20.2 above, then, in the event
of any foreclosure, or sale or transfer in lieu thereof, this Lease shall remain
in full force and effect and Tenant’s use and possession of the Premises as
provided herein shall not be disturbed. Landlord represents to Tenant
that, as of the Lease Commencement Date, KeyBank National Association (“Lender”)
has made a loan to an affiliate of Landlord that is secured by the lien of a
Mortgage encumbering the Land and all improvements thereon, including the
Building and the Office Building (the “Existing
Mortgage”), and that no Mortgage other than the Existing Mortgage is a
lien thereon. Prior to or concurrent with the Lease Commencement
Date, Landlord shall obtain from Lender a subordination, non-disturbance and
attornment agreement (a “SNDA”) in
a form set forth on Exhibit G attached
hereto and made a part hereof. Landlord acknowledges and agrees that,
unless waived by Tenant in its sole and absolute discretion, the effectiveness
of this Lease is conditioned upon the execution and delivery by Lender of a SNDA
in the form attached hereto as Exhibit G within
thirty (30) days after the Lease Commencement
Date. [*****]. For avoidance of doubt, Landlord and Tenant
acknowledge and agree that, upon full execution and delivery of such SNDA, such
SNDA shall be promptly recorded among the land records of ▇▇▇▇ County,
Illinois. Furthermore, Landlord shall secure for Tenant a SNDA
(recognizing Tenant’s rights under this Lease) from the holder of each Mortgage
hereafter encumbering the Building and/or the Land on such holder’s standard
form nondisturbance agreement, subject to Tenant’s reasonable
approval.
ARTICLE
XXI
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HOLDING
OVER
21.1 If Tenant
(or anyone claiming through Tenant) does not immediately surrender the Premises
or any portion thereof upon the expiration or earlier termination of the Lease
Term, then, unless otherwise agreed to by the parties hereto in writing, for the
first six months of such holdover period, the rent payable by Tenant hereunder
shall be increased to equal one hundred fifty percent (150%) of the Base Rent,
plus Additional Rent and other sums that would have been payable pursuant to the
provisions of this Lease if the Lease Term had continued during such holdover
period. If such holdover period is longer than six (6) months,
commencing on the first day of the seventh month of the holdover period and for
each month of the holdover period thereafter, the rent payable by Tenant shall
be increased to one hundred seventy-five percent (175%) of the Base Rent, plus
Additional Rent and other sums that would have been payable pursuant to the
provisions of this Lease if the Lease Term had continued during such holdover
period. Such rent shall be computed by Landlord and paid by Tenant on
a monthly basis and shall be payable on the first day of such holdover period
and the first day of each calendar month thereafter during such holdover period
until the Premises have been vacated. Notwithstanding any other
provision of this Lease, Landlord’s acceptance of such rent shall not in any
manner adversely affect Landlord’s other rights and remedies, including
Landlord’s right to evict Tenant and to recover all damages. Any such
holdover shall be deemed to be a tenancy at sufferance. In no event
shall any holdover be deemed a permitted extension or renewal of the Lease Term,
and nothing contained herein shall be construed to constitute Landlord’s consent
to any holdover or to give Tenant any right with respect thereto.
ARTICLE
XXII
COVENANTS
OF LANDLORD
22.1 Landlord
covenants that it has the right to enter into this Lease for the term aforesaid,
and that so long as Tenant is not in default (beyond the expiration of any
applicable notice and cure period) under this Lease, then, subject to the
provisions of this Lease, Tenant shall during the Lease Term, peaceably and
quietly occupy and enjoy the full possession of the Premises without hindrance
by Landlord, its employees or agents. Tenant acknowledges and agrees
that its leasehold estate in and to the Premises vests on the date this Lease is
executed, notwithstanding that the Lease Term will not commence until a future
date.
ARTICLE
XXIII
PARKING
23.1 During
the Lease Term, Landlord shall maintain no less than two hundred (200) parking
spaces for parking in the surface parking areas located adjacent to the Building
available on a non-exclusive, unassigned, first-come, first-served basis,
[*****]. Landlord covenants that, throughout the Lease Term, Landlord
will maintain on the Land, at a minimum, the number of parking spaces required
by applicable Law.
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23.2 It is understood and
agreed that Landlord does not assume any responsibility for, and shall not be
held liable for, any damage or loss to any automobiles parked in the parking
areas or to any personal property located therein, or for any injury sustained
by any person in or about the parking areas, except, subject to the insurance
requirements and the waiver of subrogation provision set forth in Section
12.2(b) above, for any physical injury to any natural person or damage to
Tenant’s personal property caused by the negligence or willful misconduct of
Landlord or Landlord’s Representatives.
ARTICLE
XXIV
GENERAL
PROVISIONS
24.1 Tenant
acknowledges that neither Landlord nor any broker, agent or employee of Landlord
has made any representations or promises with respect to the Premises or the
Building except as herein expressly set forth, and no rights, privileges,
easements or licenses are being acquired by Tenant except as herein expressly
set forth.
24.2 Nothing
contained in this Lease shall be construed as creating a partnership or joint
venture of or between Landlord and Tenant, or to create any other relationship
between the parties hereto other than that of landlord and tenant.
24.3 Landlord
and Tenant each represents and warrants to the other that neither of them has
employed or dealt with any broker, agent or finder in carrying on the
negotiations relating to this Lease. Each party shall indemnify and
hold the other harmless from and against any claim or claims for brokerage or
other commissions asserted by any other broker, agent or finder engaged by the
indemnifying party or with whom the indemnifying party has dealt in connection
with this Lease.
24.4 Tenant
agrees, at any time and from time to time, upon not less than fifteen (15) days’
prior written notice by Landlord, to execute, acknowledge and deliver to the
requesting party a statement in writing (i) certifying, if true, that this Lease
is unmodified and in full force and effect (or if there have been any
modifications, that the Lease is in full force and effect as modified and
stating the modifications); (ii) stating the dates to which the rent and any
other charges hereunder have been paid by Tenant; (iii) stating whether or not,
to the best knowledge of Tenant, Landlord is in default in the performance of
any covenant, agreement or condition contained in this Lease, and if so,
specifying the nature of such default; (iv) stating the address to which notices
to Tenant are to be sent; and (v) stating such other information as Landlord or
any mortgagee or prospective mortgagee of the Land and improvements thereon may
reasonably request. Any such statement delivered by Tenant may be
relied upon by any landlord of the Building, the Office Building or the Land,
any prospective purchaser of the Building, the Office Building or the Land, any
mortgagee or prospective mortgagee of the Building, the Office Building or the
Land or of Landlord’s interest therein, or any prospective assignee of any such
mortgagee.
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24.5 LANDLORD AND TENANT EACH
HEREBY WAIVE TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM BROUGHT BY
EITHER OF THEM AGAINST THE OTHER IN CONNECTION WITH ANY MATTER ARISING OUT OF OR
IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT
HEREUNDER, TENANT’S USE OR OCCUPANCY OF THE PREMISES, AND/OR ANY CLAIM OF INJURY
OR DAMAGE.
24.6 Subject
to the terms and conditions of Article V above and except as otherwise expressly
provided herein, all notices or other communications required hereunder shall be
in writing and shall be deemed duly given and received when delivered in person
(with receipt therefor), if delivered by overnight delivery by a
nationally recognized company, or if sent by certified or registered mail,
return receipt requested, postage prepaid, to the following
addresses:
If to
Landlord:
Tarantula Ventures LLC
c/o DuPont Fabros Technology,
Inc.
▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇, ▇▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇▇▇▇,
▇.▇. ▇▇▇▇▇
Attn: General
Counsel
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
With a copy
to: ▇▇▇▇▇▇
Godward Kronish LLP
▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attn: ▇▇▇▇ ▇.
▇▇▇▇▇
Phone: (▇▇▇)
▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
|
|
If
to Tenant:
|
Rackspace
US, Inc.
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:
Director of Real Estate
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
With
copies to:
|
Rackspace
US, Inc.
|
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
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Smith,
Robertson, ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, LLP
▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
If to
Guarantor: Rackspace
Hosting, Inc.
▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇
Attn: General
Counsel
Telephone: (▇▇▇)
▇▇▇-▇▇▇▇
Facsimile: (▇▇▇)
▇▇▇-▇▇▇▇
|
|
With
copies to:
|
Smith,
Robertson, ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇,
LLP
|
▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇
Attention:
▇▇▇▇▇ ▇▇▇▇▇
Telephone:
(▇▇▇) ▇▇▇-▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
Any such
notice shall be deemed effective upon the earlier of: (i) receipt, (ii) refusal
to accept delivery, (iii) three (3) days after being deposited in the U.S. Mail,
postage pre-paid, via registered or certified mail, return receipt requested, or
(iv) one (1) day after being deposited with a nationally-recognized overnight
carrier.
Either
party may change its address for the giving of notices by notice given in
accordance with this Section 24.6.
24.7 If any
provision of this Lease or the application thereof to any person or
circumstances shall to any extent be invalid or unenforceable, the remainder of
this Lease, or the application of such provision to persons or circumstances
other than those as to which it is invalid or unenforceable, shall not be
affected thereby, and each provision of this Lease shall be valid and enforced
to the fullest extent permitted by law.
24.8 Feminine
or neuter pronouns shall be substituted for those of the masculine form, and the
plural shall be substituted for the singular number, in any place or places
herein in which the context may require such substitution.
24.9 The
provisions of this Lease shall be binding upon, and shall inure to the benefit
of, the parties hereto and each of their respective representatives, successors
and assigns, subject to the provisions hereof restricting assignment or
subletting by Tenant.
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24.10 This Lease contains and
embodies the entire agreement of the parties hereto and supersedes all prior
agreements, negotiations and discussions between the parties
hereto. Any representation, inducement or agreement that is not
contained in this Lease shall not be of any force or effect. This
Lease may not be modified or changed in whole or in part in any manner other
than by an instrument in writing duly signed by both parties
hereto.
24.11 This
Lease shall be governed by and construed in accordance with the laws of the
State of Illinois.
24.12 Article
and section headings are used herein for the convenience of reference and shall
not be considered when construing or interpreting this Lease.
24.13 The
submission of an unsigned copy of this document to Tenant for Tenant’s
consideration does not constitute an offer to lease the Premises or an option to
or for the Premises. This document shall become effective and binding
only upon the execution and delivery of this Lease by both Landlord and
Tenant.
24.14 Time is
of the essence with respect to each provision of this Lease.
24.15 Neither
this Lease nor a memorandum thereof shall be recorded; however, this Section
24.15 shall not be construed as prohibiting the recordation of the SNDA in
accordance with Section 20.3 above.
24.16 Except as
otherwise provided in this Lease, any additional rent or other sum owed by
Tenant to Landlord, and any cost, expense, damage or liability incurred by
Landlord for which Tenant is liable, shall be considered “Additional
Rent” and unless otherwise provided in this Lease shall be paid by Tenant
to Landlord no later than thirty (30) days after the date Landlord notifies
Tenant of the amount of such Additional Rent or such cost, expense, damage or
liability.
24.17 For
purposes of this Lease, “Business
Day” shall mean a day other than a Saturday, Sunday or Federal
holiday.
24.18 Except as
expressly set forth herein to the contrary, all of the parties’ duties and
obligations hereunder shall survive the termination of this Lease for any reason
whatsoever.
24.19 If
Landlord or Tenant is in any way delayed, interrupted or prevented from
performing any obligation (except, with respect to Tenant, its obligations to
pay rent and other sums due under this Lease, any obligation with respect to
insurance pursuant to Article XII, any obligation to give notice with respect to
extensions, expansions or otherwise, and any holdover) due to fire, act of God,
governmental act or failure to act, war, enemy action, strike, labor dispute,
inability to procure materials, or any cause beyond Landlord’s or Tenant’s (as
applicable) reasonable control (whether similar or dissimilar to the foregoing
events) (all of which are collectively referred to herein as “Force
Majeure”), then the time for performance of such obligation shall be
excused for the period of such delay, interruption or prevention
and
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extended
for a period equal to the period of such delay or
prevention. Notwithstanding the foregoing, neither financial
disability or hardship shall constitute a Force Majeure event. By way
of clarification, the occurrence of an event of Force Majeure will not prevent
the occurrence of a Power Deficiency or HVAC Deficiency and same shall be
determined without regard to such Force Majeure.
24.20
Each
party hereby represents and warrants to the other that all necessary corporate
or company action has been taken to enter into this Lease and that the person
signing this Lease on behalf of such party has been duly authorized to do so and
all consents required by such party to enter into this Lease have been received
and no further consent from any party is required to enter into this
Lease.
24.21
Landlord
and Tenant each agrees that it will not publicly disclose the terms of this
Lease, provided that communication of such information may be made in connection
with any valid legal order issued by a court or governmental agency or any
legally required official filing with any governmental agency or if required by
the applicable rules of a national securities exchange, and provided further
that communication by either party to its lenders, private investors,
purchasers, accountants, attorneys, consultants and brokers shall be
permitted. The sole remedy for a breach by either party hereto of any of
the terms and provisions of this Section 24.21 shall be an action for specific
performance, injunction or restraining order, and such a breach shall not
otherwise be deemed to constitute a default under this Lease or give rise to any
claim for damages or other relief.
24.22 This
Lease includes and incorporates the Recitals and the Exhibits ▇, ▇, ▇-▇, ▇-▇, ▇, ▇, ▇-▇, E, F, G, H and I attached
hereto.
24.23 This
Lease may be executed in separate counterparts, each of which shall constitute
an original and all of which, together, shall constitute one and the same
instrument. This Lease shall be fully executed when each party whose
signature is required has signed and delivered to each of the parties at least
one counterpart, even though no single counterpart contains the signatures of
all parties hereto.
ARTICLE
XXV
RENEWAL
25.1 Landlord
hereby grants to Tenant two (2) successive five (5)-year renewal options, each
exercisable at Tenant’s option and subject to the conditions described below
(each such five-year term, if exercised, being referred to herein as a “Renewal
Term”). If such right is exercised, and if the conditions
applicable thereto have been satisfied, the first Renewal Term shall commence
immediately following the end of the Lease Term provided in this Lease and the
second Renewal Term shall commence immediately following the end of the first
Renewal Term. The right of renewal herein granted to Tenant shall be
subject to, and shall be exercised in accordance with, the following terms and
conditions:
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(a) Tenant shall exercise its
right of renewal with respect to each Renewal Term by giving Landlord written
notice thereof not earlier than eighteen (18) months and not later than twelve
(12) months prior to the expiration date of the then-current Lease Term (the
“Renewal
Notice”).
(b) In the
event the Renewal Notice is not given timely, Tenant’s right of renewal shall
lapse and be of no further force or effect.
(c) All the
terms, conditions, covenants and agreements set forth in this Lease shall
continue to apply and be binding upon Landlord and Tenant during each Renewal
Term, except for the determination of Base Rent which shall be as set forth in
Section 25.2 below.
(d) In the
event there exists an Event of Default on the date of receipt of a Renewal
Notice or anytime thereafter until the date such Renewal Term is to commence,
then, at Landlord’s option, such Renewal Term shall not commence and the Lease
Term shall expire on the date the Lease Term would have expired without such
renewal.
(e) The
renewal option shall be exercised only by the original Tenant hereunder or by an
Affiliate of the original Tenant hereunder, and not by any other assignee,
transferee or subtenant. In the event the original Tenant assigns
this Lease to any entity other than an Affiliate of the original Tenant,
Tenant's rights under this Section 25.1 shall lapse as though this Section 25.1
had never been included in the Lease.
(f) In the
event this Lease is not renewed for the first Renewal Term, Tenant’s right to
renew this Lease for the second Renewal Term shall lapse and be of no further
force and effect.
25.2 (a) The Base Rent charged for
the first year of each Renewal Term shall be [*****].
(b) [*****].
(c) [*****].
ARTICLE
XXVI
COMMUNICATIONS
EQUIPMENT
26.1 (a) Subject
to the terms and conditions in this Article XXVI, Tenant shall have the license,
at Tenant’s sole risk, cost and expense, to install and maintain in a designated
location on the roof of the Building (individually and together, the “Satellite
Area”) one (1) or more satellite dish antennae (together and singly the
“antenna”),
together with the cables extending from such antenna to the Premises through
plenums, risers, electrical closets, ducts or pipes on or serving the floor on
which the Premises are located (other than those installed for another tenant’s
exclusive use and provided Tenant shall have utilization of each such facility
or
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area in
no greater proportion than the ratio by which the square feet of rentable area
in the Premises compares to the square feet of rentable area in the Building),
all in accordance with plans and specifications to be reasonably approved by
Landlord. The number, location, size, weight, height and all other
features and specifications of the antenna and the manner of the initial
installation of the same shall be subject to Landlord’s prior written approval,
which approval will not be unreasonably withheld, conditioned or
delayed. The installation of such antenna and all related wiring and
equipment shall be performed during normal working hours and under the
supervision of Landlord’s designated representative. Notwithstanding
the foregoing, Tenant shall not be entitled to install such an antenna (i) which
is greater than three (3) meters in diameter (or more if same is not visible
from the grounds adjacent to the Building or appropriately screened from view in
accordance with Building standards), (ii) which is more than four (4) meters in
height (or more if same is not visible from the grounds adjacent to the Building
or appropriately screened from view in accordance with Building standards),
(iii) if such installation would violate (or in a manner that would violate) any
warranty with respect to the roof or structure of the Building, (iv) if such
installation would materially, adversely affect (or in a manner that would
materially, adversely affect) the structure or any of the building systems of
the Building, or if such installation would require (or in a manner that would
require) any structural alteration to the Building, or if such installation
would disturb the roof membrane or make any other penetration on the roof or the
exterior facade of the Building, unless Landlord in its sole and absolute
discretion approves in writing such structural alteration or roof penetration,
(v) if such installation would violate (or in a manner that would violate) any
covenant, condition, or restriction of record affecting the Building or any
applicable federal, state or local law, rule or regulation, (vi) unless all
required approvals and consents of all holders of Mortgages encumbering the
Building of whom Tenant has notice are obtained (to the extent required by the
loan documents and requested by Landlord), (vii) unless Tenant has obtained and
maintains at Tenant’s expense, and has submitted to Landlord copies of, all
permits, licenses, special zoning variances, authorizations and approvals
relating to such antenna and such installation and maintenance (including,
without limitation, any permit required if a crane is necessary to place such
antenna on the roof) and pays all taxes and fees related thereto, (viii) unless
such antenna is white or of a beige or lighter color (or otherwise appropriately
screened), (ix) unless such antenna is installed, at Tenant’s sole cost and
expense, by a qualified contractor chosen by Tenant and approved in advance by
Landlord, which approval shall not be unreasonably withheld, (x) if the
installation or operation would materially interfere with or materially disrupt
the use or operation of any other equipment (including antennae) on the roof of
the Building on the Rent Commencement Date, (xi) unless Tenant obtains
Landlord’s prior consent to the manner and time in which such installation work
is to be done; and (xii) unless screened from view from the grounds adjacent to
the Building in a manner and with materials reasonably acceptable to
Landlord. All plans and specifications concerning such installation
shall be subject to Landlord’s prior written approval, which approval shall not
be unreasonably withheld, and Tenant shall reimburse Landlord’s reasonable and
customary third-party expenses actually incurred in such review. All
maintenance, repairs and installations required after the initial installation
of the antenna also shall be subject to Landlord’s prior written approval, which
approval shall not be unreasonably withheld, and Tenant shall reimburse
Landlord’s reasonable and customary third-party expenses actually incurred in
such review. Any failure to complete
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the
installation of the antenna and related equipment shall not delay the Rent
Commencement Date. Tenant shall have no right to any abatement or
reduction in the Base Rent, Additional Rent or any other sums due or payable
under this Lease if for any reason Tenant is unable to obtain any required
approval for installation of an antenna, or is thereafter unable to use the
antenna for any reason.
(b) Tenant
shall not have access to any such antenna without Landlord’s prior consent,
which consent shall be granted to the extent necessary or desirable for Tenant
to perform its maintenance, repair, replacement or other obligations hereunder,
and only if Tenant is accompanied by Landlord’s representative (if Landlord so
requests and no emergency circumstances required otherwise, and provided such
representative of Landlord does not interfere with or delay Tenant in exercising
its rights or satisfying its obligations hereunder). Any such access
by Tenant shall be subject to reasonable rules and regulations relating thereto
established from time to time by Landlord, including without limitation rules
and regulations prohibiting such access unless Tenant is accompanied by
Landlord’s representative, provided such representative of Landlord does not
interfere with or delay Tenant in exercising its rights or satisfying its
obligations hereunder. Landlord shall have the right to access the
Satellite Area at all times, provided Landlord does not unreasonably interfere
with Tenant’s use of the Satellite Area and any antenna as provided
herein. Notwithstanding the foregoing, in the event Tenant is
prevented or delayed from satisfying its obligations under this Article XXVI due
to Landlord’s failure to consent to Tenant’s access to the Satellite Area and
any such antenna and/or Landlord’s requirement of a Landlord escort, then
Tenant’s obligations shall be excused until Landlord issues such consent and/or
produces any such Landlord escort.
(c) At all
times during the Lease Term, Tenant shall (i) perform maintenance and repairs so
as to keep all said equipment in clean, good and safe condition and in a manner
that avoids material interference with or material disruption to Landlord and
other tenants of the Building, (ii) comply with all requirements of laws,
ordinances, rules and regulations of all public authorities and insurance
companies which shall impose any order or duty upon Landlord with respect to or
affecting the antenna and/or associated wiring or Tenant’s use or manner of use
thereof, and (iii) register the equipment, if required, with appropriate
governmental authorities and keep same current. All repairs and
maintenance shall be performed by a qualified Approved
Contractor. Tenant shall pay and discharge all costs and expenses
incurred in connection with the furnishing, installation, maintenance, operation
and removal of the antenna. All repairs and maintenance to the
Building made necessary by reason of the furnishing, installation, maintenance,
operation or removal of the antenna or any replacements thereof (including,
without limitation, any invalidation of the roof warranty due to Tenant’s breach
of its obligations hereunder) shall be at Tenant’s sole cost. If the
operation of the antenna shall require electrical power, Landlord may, at its
sole option, install a separate meter, at Tenant’s sole expense, to measure such
electrical consumption and Tenant shall pay for such consumption at the
then-current price per kilowatt hour charged Landlord by the
utility. At the expiration or earlier termination of the Lease Term,
or upon termination of the operation of the antenna and related equipment as
provided in subsection (e) below, Tenant shall remove such antenna and related
equipment from the Building and surrender the Satellite Area in good
condition, ordinary
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wear and
tear and damage by fire, casualty and the elements excepted. If
Tenant fails to so remove the antenna and equipment in accordance with the
foregoing, Landlord shall have the right to remove and dispose of such antenna
and equipment, at Tenant’s sole cost and expense, and Landlord shall have no
liability therefor. Notwithstanding the foregoing to the contrary, in
the event any repairs or maintenance to, or restoration of, the Building made
necessary by reason of furnishing, installation, maintenance, operation or
removal of the antenna or any replacements thereof are due to work performed or
to be performed by DFTS pursuant to a separate agreement between DFTS and
Tenant, then Landlord, and not Tenant, shall be responsible therefor at
Landlord’s sole cost and expense.
(d) Upon at
least thirty (30) days’ prior written notice to Tenant, Landlord shall have the
right to require Tenant to relocate the antenna to another location of
equivalent size; provided, however, that such relocation: (i) does not
materially, adversely affect the operation of the antenna; and (ii) can be
performed without any interruption in service. Any such relocation
shall be performed by Tenant at Landlord’s expense, and in accordance with all
of the requirements of this Article XXVI. Nothing in this Section
shall be construed as granting Tenant any line of sight easement with respect to
such satellite dish antenna; provided, however, that if Landlord requires that
such antenna be relocated in accordance with the preceding two (2) sentences,
then Landlord shall provide either (i) the same line of sight for such antenna
as was available prior to such relocation, or (ii) a line of sight for such
antenna which is functionally equivalent to that available prior to such
relocation.
(e) It is
expressly understood that by granting Tenant the license hereunder, Landlord
makes no representation as to the legality of such antenna or its
installation. In the event that any federal, state, county,
regulatory or other authority requires the removal or relocation of such
antenna, Tenant shall remove or relocate such antenna at Tenant’s sole cost and
expense, and Landlord shall under no circumstances be liable to Tenant
therefor. In addition, at Landlord’s sole option and discretion,
Landlord may require Tenant, at any time prior to the expiration or earlier
termination of this Lease, to terminate the operation of the antenna and related
equipment if it is causing material physical damage to the structural integrity
of the Building, materially interfering with any other service provided to the
Building in existence as of the Rent Commencement Date or causing the violation
of any condition or provision of this Lease. The right granted to
Tenant under this Article XXVI are non-exclusive, non-transferable (except to an
Affiliate or in connection with a permitted sublease of the entire Premises or
assignment of the Lease in its entirety pursuant to Article VII hereof),
revocable license to use the Satellite Area solely in accordance with terms and
conditions of this Article XXVI.
(f) Tenant
shall indemnify and hold Landlord harmless from and against all costs, damages,
claims, liabilities and expenses (including attorneys’ fees) suffered by or
claimed against Landlord, directly or indirectly, based on, arising out of or
resulting from any act or omission by Tenant or Tenant’s employees, agents,
assignees, subtenants, contractors, clients, guests, licensees, customers or
invitees with respect to the installation, use, operation, maintenance, repair,
removal or disassembly of such antenna and related equipment
(including,
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without
limitation, any damage to other wires or equipment of the Building or other
tenants/occupants of the Building).
(g) The
antenna may be used by Tenant only in the conduct of Tenant’s customary
business. No assignee or subtenant shall have any rights pursuant to
this Article except for an Affiliate or an assignee of the entire Lease or a
subtenant of the entire Premises pursuant to a permitted assignment or sublease
in accordance with Article VII hereof.
(h) Tenant
shall maintain such insurance (in addition to that required by Article XII of
this Lease) as is appropriate with respect to the installation, operation and
maintenance of the antenna. Landlord shall have no liability on
account of any damage to or interference with the operation of the antenna,
except for physical damage caused by Landlord’s gross negligence or willful
misconduct not covered by Tenant’s insurance carried or required to be carried
by said Article XII, and Landlord expressly makes no representations or
warranties with respect to the capacity for an antenna placed on the roof of the
Building to receive or transmit signals. Except as otherwise
expressly provided herein, the operation of the antenna shall be at Tenant’s
sole and absolute risk. Tenant shall in no event materially interfere with the
use of any other communications equipment located on the roof, or anywhere else
in, the Building pursuant to leases or other agreements entered into prior to
the date of the Lease and will reasonably cooperate with Landlord, at no cost or
expense to Tenant, to avoid material interference with any other antennas or
equipment installed in the future.
ARTICLE
XXVII
GUARANTOR
The full and complete performance by
Tenant of its obligations under the Lease shall be guaranteed by Rackspace
Hosting, Inc., a Delaware corporation (“Guarantor”). The
Guarantor shall execute and deliver contemporaneously with Tenant’s execution of
this Lease a guaranty in the form attached as Exhibit H
hereto.
ARTICLE
XXVIII
[*****]
ARTICLE
XXIX
[*****]
[Signature
Page Follows]
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In Witness
Whereof, Landlord and Tenant have executed this Lease under seal on or as
of the day and year first above written.
LANDLORD:
TARANTULA VENTURES
LLC,
a Delaware limited liability
company
By: Tarantula
Interests LLC, a Delaware
limited liability
company,
its Managing Member
By: Safari
Ventures LLC, a Delaware
limited liability
company,
its Managing Member
By: DuPont
Fabros Technology, Inc.,a Maryland corporation,
its Managing Member
By: /s/ ▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
President
& CEO
TENANT:
RACKSPACE US, INC., a Delaware
corporation
By: /s/ ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Name:
▇▇▇▇
▇▇▇▇▇▇▇▇▇▇
Title:
Sr. Vice-President and
General Counsel
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
EXHIBITS
A Description
of Land
B Floor
Plan of Premises and Storage Space
▇-▇ ▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
|
▇-▇
|
[*****]
|
|
C
|
Declaration
Affirming The Rent Commencement
Date
|
D Landlord’s
Work
D-1 Shell
Office Space Requirements
E Rules
and Regulations
F Services
Exhibit
G Form
of Subordination Non-disturbance Agreement
H Form
of Guaranty
I
Office Building Services and Utilities
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COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
EXHIBIT
A
Description
of Land
LOT 1 IN
ERNESCO IMPORTS CORP. SUBDIVISION. A RESUBDIVISION OF LOTS 1 AND 2 IN
GREAT—WEST INDUSTRIAL SUBDIVISION, A RESUBDIVISION OF PART OF ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇. A SUBDIVISION IN THE SOUTHEAST ¼ OF SECTION
34, TOWNSHIP 41 NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING
TO THE PLAT THEREOF RECORDED FEBRUARY 13, 1986 AS DOCUMENT 86063318, IN ▇▇▇▇
COUNTY, ILLINOIS
Permanent
Tax/Assessor Parcel Number: ▇▇-▇▇-▇▇▇-▇▇▇,0000
A-1
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EXHIBIT
B
Floor
Plan of Premises and Storage Space
B-1
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COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
EXHIBIT
▇-▇
▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇-▇
▇▇▇▇▇▇▇▇▇▇▇▇
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
EXHIBIT
B-2
[*****]
B2-1
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COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
EXHIBIT
C
Declaration
Affirming The Rent Commencement Date
This
Declaration is being provided pursuant to that certain Lease Agreement dated as
of _____________, 200_ (the “Lease”),
by and between Tarantula
Ventures LLC (“Landlord”)
and __________________
(“Tenant”). The
parties to the Lease desire to confirm the following:
1. The
Rent Commencement Date is ____________, 200_.
2. Unless
earlier terminated in accordance with the Lease, the initial term of the Lease
shall expire on ____________, 20__.
[*****]
[Signatures
on Following Page]
C-1
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
In Witness
Whereof, Landlord
and Tenant have executed this Certificate under seal on _____________,
200_.
LANDLORD:
Tarantula
Ventures LLC, a
Delaware limited liability company
|
By:
|
Tarantula
Interests LLC, a Delaware
|
|
|
limited
liability company,
|
|
|
its
Managing Member
|
|
|
By:
|
Safari
Ventures LLC, a Delaware
|
|
|
limited
liability company,
|
|
|
its
Managing Member
|
|
|
By:
|
DuPont
Fabros Technology, Inc., a Maryland
corporation,
|
|
|
its
Managing Member
|
By:____________________________
Name:__________________________
Title:___________________________
TENANT:
RACKSPACE US, INC., a Delaware
corporation
By:_________________________________
Name:
______________________________
Title:________________________________
C-2
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COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
EXHIBIT
D
Landlord’s
Work
▇▇▇ ▇▇▇▇▇
I is constructed as a mission critical facility capable of continuously serving
approximately 18.2 megawatts of critical computer equipment load protected by an
uninterruptible power system using inertial rotary storage. CH1 is
configured such that all heat loads in the building are continuously rejected to
the outside of the facility, using a chilled water system as the primary cooling
mechanism in the facility. The improvements that have been
constructed and
installed include:
Exterior
Architectural and Structural Work pursuant to schematic drawings
Electrical
Service and Transformers
600v
Distribution Switchgear
UPS
System
Engine
Generators
Static
Transfer Switches (STS)
PDUs
Power
Monitoring System (for power billing and system monitoring)
Fire
Detection and Alarm System (including VESDA system)
Fire
Alarm System (VESDA system)
Security
System
Lightning
Protection
Evaporative
Chilled Water System with Centrifugal Chillers
HVAC
Controls
Building
Monitoring and Alarm System
Raised
Floor (height per design requirements)
Loading
Dock
Secure
Single Point Entry
Common
Area Restrooms
Elevator
Building
Grounding System
D-1
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
EXHIBIT
D-1
Shell
Office Requirements
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Building
structure including foundations, slab on grade, supported slabs and
structural concrete.
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Concrete
floors ready to receive tenant
finish.
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Men’s
and women’s toilet rooms in hallway substantially complete including
plumbing and fixtures, paint and lighting per
code.
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Drinking
fountains installed per code.
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Electrical
closets complete with tenant panel for power and
lighting.
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Building
fire stairs complete.
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Mechanical
equipment rooms complete with air handlers and
ductwork.
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Mechanical
penthouse substantially complete with base building
equipment.
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Elevators,
cabs, frames and entries.
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Primary
HVAC loop ductwork from the mechanical rooms around the
cores.
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VAV
boxes at ratio of one box with control thermostat per 2500 RSF (coiled up
awaiting tenant walls).
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Drywall
ready for paint around columns, outside of cores and perimeter
walls.
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Fire
alarm system with connections to base building equipment (tamper and flow
switches, HVAC units, elevators, etc.). System to be sized to
accept tenant devices.
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Fire
sprinkler pump (if required) with tamper and flow switches on the risers,
sprinkler loop on each floor with heads in base building areas (toilet,
mechanical, stair towers, penthouse,
etc.).
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Perimeter
security system.
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Exit
lights at each building exit.
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One
(1) turned up sprinkler head for every 225 square
feet.
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Glass
exterior perimeter walls.
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[*****]
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[*****]
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▇▇▇▇▇▇▇▇▇
doors and hardware.
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D-1-1
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
EXHIBIT
E
DuPont
Fabros CH1
_____________________
STANDARD
OPERATING
PROCEDURES,
RULES AND REGULATIONS
Any
material violation of these rules and regulations by Tenant shall constitute a
default by Tenant under the Lease.
The
following rules shall be applicable to the Property and Tenant’s activities
therein:
Tenant
shall not obstruct or encumber or use for any purpose other than ingress and
egress to and from the Premises any sidewalk, entrance, passage, court,
elevator, vestibule, stairway, corridor, hall or other part of the Building not
exclusively occupied by Tenant. No bottles, parcels or other articles
shall be placed, kept or displayed on window ledges, in windows or in corridors,
stairways or other public parts of the Building. Tenant shall not
place any showcase, mat or other article outside the Premises.
Where
Landlord’s consent is required under these Rules and Regulations, Landlord shall
not unreasonably withhold, condition, or delay such
consent. Canvassing, soliciting and peddling in the Building are
prohibited, and Tenant shall cooperate to prevent the same.
Tenant
shall have the right to attach, hang or use in connection with any window or
door of the Premises any drape, blind, shade or screen to prevent any person
outside the Premises from seeing into the Premises. Landlord shall
have the right to approve the type of window or door covering, which approval
shall not be unreasonably withheld, conditioned or delayed.
Tenant
shall not use the water fountains, water and wash closets, and plumbing and
other fixtures for any purpose other than those for which they were constructed,
and Tenant shall not place any debris, rubbish, rag or other substance therein
(including, without limitation, coffee grounds). All damages from
misuse of fixtures shall be borne by the tenant causing same.
Tenant
shall not construct, maintain, use or operate within the Premises any electrical
device, wiring or apparatus in connection with a loudspeaker system or other
sound system, in connection with any excessively bright, changing, flashing,
flickering or moving light or lighting device, or in connection with any similar
device or system, without Landlord’s prior written consent. Tenant
shall not construct, maintain, use or operate any such device or system outside
of its Premises or within such Premises so that the same can be heard or seen
from outside the Premises. Tenant will not permit or allow any
vapors, steam, water, vibrations, noises or other undesirable effects to emanate
from the Premises or any equipment or installation therein, which in Landlord’s
reasonable discretion, are objectionable or cause any interference with the
safety, comfort or convenience of the Building by Landlord or its agents,
servants, invitees or employees.
E-1
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
Tenant
shall not bring any child under the age of twelve (12) years old, animal, bird
or pet of any kind into the Building, except seeing-eye or hearing-ear dogs for
handicapped persons visiting the Premises.
Except as
specifically provided to the contrary in the Lease and except in the office
areas (including, without limitation, any network operations center), where
customary microwave cooking and office kitchen use shall be permitted, Tenant
shall not ▇▇▇▇ or permit any cooking on the Premises, except for microwave
cooking and use of coffee machines by Tenant’s employees for their own
consumption. No food or drink of any kind is permitted in any raised
floor environment. Tenant shall not cause or permit any unusual or
objectionable odor to be produced upon or emanate from the
Premises.
[*****]. Tenant
shall not place on any floor a load exceeding the floor load per square foot
which such floor was designed to carry. Landlord shall have the right
to repair at Tenant’s expense any damage to the Premises or the Building caused
by Tenant’s moving property into or out of the Premises or to require Tenant to
do the same, in accordance with the terms and provisions of the
Lease.
Except as
otherwise provided herein, Tenant shall not place additional locks or bolts of
any kind on any of the doors or windows, and shall not make any change in any
existing lock or locking mechanism therein, without Landlord’s prior written
approval, which shall not be unreasonably withheld or delayed. Tenant
shall keep doors leading to a corridor or main hall closed at all times except
as such doors may be used for ingress or egress and shall lock such doors during
all times the Premises are unattended. Tenant shall, upon the
termination of its tenancy: (a) restore to Landlord all keys and security cards
to the Building and the Premises which were either furnished to, or otherwise
procured by, Tenant, and in the event of the loss of any keys so furnished,
Tenant shall pay the replacement cost thereof; and (b) inform Landlord of the
combination of any lock, safe and vault in the Premises. Tenant’s key
system shall be consistent with that for the rest of the Building.
Subject
to the terms and provisions of Article V of the Lease, Landlord shall require
all persons not having permanent Access Badges admitted to the Building to show
government-issued identification and to sign a register.
Tenant
shall not permit or encourage any loitering in or about the Premises and shall
not use or permit the use of the Premises for lodging, dwelling or
sleeping.
Tenant
shall not request Landlord’s employees to perform any work or do anything
outside of such employees’ regular duties without Landlord’s prior written
consent. Tenant’s special requirements will be attended to only upon
application to Landlord, and any such special requirements shall be billed to
Tenant in accordance with the schedule of charges maintained by Landlord from
time to time or as is agreed upon in writing in advance by Landlord and
Tenant. Tenant shall not employ any of Landlord’s employees for any
purpose whatsoever without Landlord’s prior written consent. Except
as otherwise expressly provided herein, only Approved Contractors, Approved
Vendors and/or Approved Fiber Providers, as applicable, will be
E-2
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
permitted
to furnish services to Tenant which require entry upon the Property, and only in
accordance with the terms and provisions of the Lease and these Rules and
Regulations.
There
shall not be used in any space, or in the public halls of the Building, either
by any tenant or by jobbers or others in the delivery or receipt of merchandise,
any hand trucks, except those equipped with rubber tires and side
guards. Tenant shall be responsible for any loss or damage resulting
from any deliveries made by or for Tenant.
Tenant
shall not remove, alter or replace the ceiling light diffusers, ceiling tiles or
air diffusers in any portion of the Premises without the prior consent of
Landlord.
Tenant
shall not in any manner deface any part of the Premises or the
Building. Except as otherwise expressly provided herein and/or in the
Lease, no stringing of wires, boring or cutting shall be permitted except with
Landlord’s prior written consent.
Tenant
shall not bring or keep, or permit to be brought or kept, in the Building any
weapon or, except as otherwise provided herein, flammable, combustible or
explosive fluid, chemical or substance.
Tenant
shall comply with all workplace smoking Laws. There shall be no
smoking in the Premises, the Building and the Common Areas.
Subject
to the terms and provisions of Articles I and XXVI of the Lease, Tenant shall
have no right of access to the roof of the Building and shall not install,
repair or replace any satellite dish, antennae, fan, air conditioner or other
devices on the roof of the Building without prior written consent of
Landlord. Any such device installed without such written consent
shall be subject to removal, at Tenant’s expense, without notice, at any
time.
Landlord
may refuse admission to the Building to all persons except as otherwise provided
in Section V of the Lease.
The
Building loading docks, shall be used pursuant to procedures reasonably
designated by Landlord. Without limiting the generality of the
foregoing, the Building loading docks may only be used for loading and
unloading. Tenants may not place any dumpsters or other trash
receptacles at the loading docks or any other portion of the Building without
prior approval of Landlord.
Except in
the event of an emergency, Tenant shall not turn on, shutdown, adjust or permit
to be turned on, shutdown or adjusted any PDUs, computer room air conditioners,
fire alarm systems, security systems or other systems within the Premises
without Landlord’s prior written approval and, in all cases, Tenant shall
promptly notify Landlord’s Emergency Contacts in accordance with Section 5.3 of
the Lease. To the extent possible, a shutdown or adjustment shall be
subject to the supervision of the Building engineer.
Tenant
shall not install Direct Current {DC} power plants within the leased premises
without Landlords prior written approval.
E-3
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
Tenant
shall not remove, alter or replace any equipment associated with the electrical,
communications, mechanical, fire protection, security and all other facility
infrastructure. This shall include, without limitation, conduits,
cable trays, cabling or other pathways which pass through the Premises but,
subject to Article IX of the Lease, shall not include Tenant’s own
conduits, cable trays, cabling or other pathways used exclusively by
Tenant.
Tenant
shall not install wiring below the raised floor without Landlord’s prior written
approval in accordance with Section 9.2 of this Lease.
[*****].
Except as
otherwise expressly provided herein, Tenant’s contractors or vendors may not use
any space within the Building or Property for the storage or moving of materials
or equipment (except on a temporary basis, as approved by Landlord in its
reasonable discretion, to provide services to allow Tenant to operate in the
Premises in accordance with the Permitted Uses) or for the location of a field
office or facilities for the employees of any such contractor or vendor without
Landlord’s prior written consent. Landlord reserves the right to
restrict the use of certain materials in the Building or on the Property if
Landlord, in its reasonable discretion, determines that such materials are
unsafe, provided Landlord shall not unreasonably interfere with Tenant’s use of
the Premises for the Permitted Uses.
Trucks
using the Building loading dock located on the lower level of the Building will load and discharge
at the place or places designated by the duly authorized representative of
Landlord in charge of such operation.
The
Building loading dock is intended to be used for transferring freight to and
from the Building. The use of the Building loading dock by Tenant or
any of its agents, servants, employees, representatives or contractors will be
confined to such purpose, under the direction of, and pursuant to procedures
established by, a duly authorized representative of Landlord in charge of such
operation. No storage or holding of freight at the loading dock
awaiting the arrival of trucks, or awaiting transfer by Tenant from the loading
dock to the Premises, will be permitted. No automobiles of Tenant or
any employee, agent, or invitee of Tenant may enter on or be stored in any
portion of the Property, except in areas designated by Landlord. Any
violation of this rule or disregard of directions issued by Landlord will give
Landlord the right, upon notice to Tenant’s Emergency Contacts, to transfer,
remove or store the applicable freight or automobile. When such
transfer, removal or storage is performed by or for Landlord in accordance with
this provision, any and all expense associated therewith will be at Tenant’s
sole cost and expense. Landlord will not be responsible for any loss
or damage to any freight or automobile as a result of such transfer, removal, or
storage except to the extent the same arises as a result of Landlord’s
negligence or willful misconduct.
Tenant
shall not, under any circumstances, permit the accumulation of sweepings or any
other rubbish in the expansion joints of those portions of the Building located
outside of the Premises, and all such sweepings or rubbish shall be removed
daily by Tenant in such manner as Landlord shall reasonably
direct. Except as otherwise expressly provided herein, Tenant will
not place machinery or equipment in a position so that such machinery or
equipment straddles an
E-4
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
All
damage to the Building caused by Tenant moving or using any heavy equipment or
other office equipment or furniture shall be repaired by Tenant or otherwise at
the expense of Tenant.
The
moving of all heavy equipment and furniture may occur only with Landlord’s prior
approval, which approval shall not be unreasonably withheld, conditioned, or
delayed. Safes and other heavy equipment, furniture and machinery
must be moved through the halls and corridors on plywood or, depending on the
weight, steel bearing plates. No oversized or bulky freight will be
received into the Building or carried in the elevators except as approved in
advance by Landlord.
Tenant
shall have the right to receive or ship fixtures, equipment or articles related
to the Permitted Uses 24 hours a day, 7 days a week through facilities, doors
and elevators designated by Landlord.
Tenant
will, at its expense, comply with Landlord’s reasonable waste management,
disposal and recycling requirements Landlord may, upon request of Tenant, waive
Tenant’s compliance with any of these Rules and Regulations, provided that (a)
no waiver shall be effective unless signed by Landlord, (b) no waiver shall
relieve Tenant from the obligation to comply with such Rules and Regulations in
the future unless otherwise agreed in writing by Landlord, and (c) no waiver
shall relieve Tenant from any liability for any loss or damage resulting from
Tenant’s failure to comply with any of these Rules and Regulations.
E-5
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
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Exhibit
F
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Services
Exhibit
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A. DEFINITIONS
All
capitalized terms not defined herein shall have the meanings ascribed to them in
the Lease.
(a) “Building Management System”
(the “BMS”) shall refer
to an environmental diagnostic system for power, temperature and humidity, with
remote sensors located in the Tenant Space and capable of providing monitoring
at the level specified herein.
(b) “CBEMA Curve” means 208V AC
line voltage, as measured at the PDU and maintained within the “No Interruption
in Function Region” described in the ITI CBEMA Curve in Appendix 1 attached
hereto.
(c) “Computer Room Air Conditioning
Unit(s)” or “CRAC(s)” shall mean the
individual air conditioning/cooling devices that regulate temperature within the
Premises raised floor space.
(d) “Environmental Conditions”
means the temperature and humidity conditions in the Tenant Space as described
in Section B.i.
(e) “HVAC” shall mean the heating,
ventilation, and air conditioning system used for regulation of the
Environmental Conditions and air filtering.
(f) “HVAC Deficiency” is defined in
Section B.i. A momentary interruption resulting from a switch from
utility power to back-up or generator power shall not constitute a HVAC
Deficiency.
(g) “HVAC Demand” shall mean the
quantity of HVAC required to reject the heat generated by the consumption of
electricity within a Pod in order for Tenant to sufficiently conduct its
business operations in such Pod.
(h) “Power Deficiency” is defined
in Section B.ii.
(i) “Power Distribution Unit”
(“PDU”) is defined as an
electrical distribution component that steps down the building distribution
voltage to the 120/208V level for use as branch circuit distribution to the
computing equipment.
(j) “Service Deficiency” means a
Power Deficiency or a HVAC Deficiency.
F-1
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
(k) “Tenant Space” is the Premises,
as defined in the Lease, which includes the Pods and Office Space.
B. DESCRIPTION
OF SERVICES
i. Environmental
Conditions
Landlord
shall, at all times throughout the Lease Term, use commercially reasonable,
diligent efforts to maintain environmental conditions for temperature and
humidity (“Environmental
Conditions”) in accordance with those described in the “Recommended”
range for a Class 1 Data Center Environment as defined by ASHRAE TC 9.9 “Thermal
Guidelines for Data Processing Environments,” as such guidelines may be
modified, revised and supplemented from time to time (the “ASHRAE Guidelines”), and
Landlord shall at all times throughout the Lease Term, maintain Environmental
Conditions in accordance with those described in the “Allowable” Range for a
Class 1 Data Center Environment under the ASHRAE Guidelines. Landlord
will place up to ten (10) temperature sensors at various locations around each
1.3 megawatt Pod, and five (5) temperature sensors in each .433 megawatt Pod, in
amounts, at locations and at times during the Phasing Period reasonably agreed
upon by both the Landlord and Tenant. Sensors shall be monitored 24x7
by the BMS.
Landlord
shall use the BMS to proactively and continuously monitor Environmental
Conditions at the sensor locations within each Pod. These monitors or
data collection points shall be dispersed within the Pod to record rack inlet
Environmental Conditions and not be limited to collection of return air at the
CRAC units. [*****].
In the
event that any BMS monitor or data collection point detects an Environmental
Condition reading outside the “Recommended Range” per the ASHRAE Guidelines in
any of the Pods of the Premises, an alarm will be triggered within the BMS
specifying the Pod and location of the fault and Landlord shall immediately
undertake all commercially reasonable action to cure the event and resolve the
issue, which Landlord shall pursue diligently until the Environmental Condition
is within the Recommended Range. [*****]. Furthermore, in
the event of a HVAC Deficiency, Landlord shall immediately undertake all
commercially reasonable, best efforts to cure such HVAC Deficiency and resolve
such HVAC Deficiency, which Landlord shall pursue diligently until the HVAC
Deficiency is cured. Landlord shall immediately notify Tenant’s
Emergency Contacts in the event of a HVAC Deficiency in accordance with Article
V of the Lease, and Landlord will maintain periodic contact with Tenant until
the HVAC Deficiency is cured.
ii. Power
Quality and Power Availability
Landlord
shall provide continuous electrical power, at all times to the load side of each
PDU in accordance with recommendations for the AC power input envelope or curve
formerly known as “CBEMA,” published by the TC3
of the Information Technology Industry Council in 2000 and attached as Appendix
1 hereto. Voltage shall remain within
F-2
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
the
region identified as the “No Interruption In Function
Region.” Landlord shall maintain a BMS with event capture
capabilities that will track compliance with this provision of CBEMA at the PDU
level.
Tenant
may, at its own expense and with Landlord’s consent (which may not be
unreasonably withheld), procure the installation of a Branch Circuit Monitoring
system (BCM) to allow
for monitoring power quality and availability of each circuit on the load side
of the PDU.
[*****].
Landlord
will provide Tenant annually with a maintenance schedule for the current Lease
Year that targets the calendar month(s) in which Landlord will perform planned
standard electrical maintenance and major power maintenance. [*****]
Landlord shall in all events provide Tenant with at least two (2) Business Days’
advance notice of the date of performance of any such planned standard
electrical maintenance or major power maintenance. Landlord may
deviate from the maintenance schedule, provided that such changes shall not
unreasonably interfere with Tenant’s beneficial use of the
Premises.
In the
event of a Power Deficiency for any reason, Landlord shall use all commercially
reasonable, best efforts to immediately return all Critical Load Power to
[*****]. Landlord will immediately notify Tenant’s Emergency Contacts of any
Power Deficiency in accordance with Article V of the Lease, and Landlord will
maintain periodic communication until all Critical Load Power is returned to
[*****].
iii. Maintenance
and Operations
(a) 24x7
On-site Facilities Engineering Staff
As part
of Landlord’s Repair and Maintenance Obligations, Landlord shall maintain
[*****] onsite 24 hours a day, 7 days per week, who is qualified in their
respective craft, and trained in systems, operations, procedures, and policies
that are specific to the Building.
(b) System
Tests
As part
of Landlord’s Repair and Maintenance Obligations, Landlord shall perform and
document manufacturer recommended and all industry standard maintenance, repairs
and confidence tests on all building systems and back-up systems to ensure
ongoing operation and to validate that they operate properly under their rated
load and design conditions as often as is recommended by the manufactures or is
customary in the industry for first-class data centers, whichever is more
frequent. All such maintenance, repairs and tests shall be conducted
in accordance with best industry practices, and at such intervals recommended by
the original equipment manufacturers and recognized industry
F-3
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
experts. Under
normal conditions, Landlord shall not utilize Tenant’s equipment as the test
load when troubleshooting or performing functional testing following maintenance
activities. [*****]. Landlord shall in all events provide Tenant with
at least two (2) Business Days’ advance notice of the actual date on which
maintenance or testing that will subject Tenant’s circuits to intentional power
source transfers shall be performed.
iv. Notifications
Notifications
and alerts related to Service Deficiencies, whether generated electronically by
the BMS, other electronic means or manually by security staff will be
communicated in accordance with Sections B.i. and B.ii. above, as
applicable.
C. [*****]
D. GENERAL
Notwithstanding
any provision to the contrary contained in this Exhibit F, neither
Landlord nor the Management Company shall be obligated to perform any services
requested by Tenant in addition to the services Landlord is obligated to provide
or perform pursuant to the terms and provisions of the Lease, to the extent such
additional services are beyond, or in conflict with, the documented design
parameters of the Building and any industry-standard equipment, fixtures and
installations thereto or thereon. Any and all costs and expenses that
are approved by Tenant in writing and incurred by Landlord and/or the Management
Company in performing the services required hereunder shall be included in
Operating Expenses under the Lease.
E. [*****]
F-4
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
EXHIBIT
G
Subordination,
Non-disturbance and Attornment Agreement
Recorded
at the Request of and After Recording Return to:
▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇
Long & ▇▇▇▇▇▇▇▇ LLP
▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇
SUBORDINATION,
NON-DISTURBANCE
AND ATTORNMENT
AGREEMENT
Grantor
#1
(Landlord): TARANTULA
VENTURES LLC, a Delaware limited liability company
Grantor
#2
(Tenant):
RACKSPACE US, INC., a Delaware corporation
Grantee
(Lender):
KEYBANK NATIONAL ASSOCIATION, AS AGENT
Abbreviated
Legal Description:
Official
Legal Description on Exhibit A
Assessor’s
Tax Parcel ID
# 08-34-402-058-0000
Reference
No.
N/A
G-1
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
SUBORDINATION,
NON-DISTURBANCE AND ATTORNMENT AGREEMENT
THIS SUBORDINATION, NON-DISTURBANCE AND
ATTORNMENT AGREEMENT (the “Agreement”) is made as of the ____ day of
_________________, 2009 by and between:
KEYBANK
NATIONAL ASSOCIATION,
a
national banking association, as Agent
having an
address at
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇▇▇ ▇▇▇▇▇
(“Lender”),
and
RACKSPACE
US, INC., a Delaware corporation
having an
address at
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(“Tenant”).
RECITALS:
A. Tenant
is the holder of a leasehold estate in a portion of those certain premises
located in the County of ▇▇▇▇, State of Illinois, and more particularly
described on Exhibit A attached hereto and made a part hereof (the “Property”)
under and pursuant to the provisions of a certain lease (as amended, the
“Lease”) dated July ____, 2009 by and between Tarantula Ventures LLC, a Delaware
limited liability company, as landlord (“Landlord”), and Rackspace US, Inc., a
Delaware corporation, as tenant (“Tenant”);
B. Landlord
is the owner in fee simple of the Property and the landlord under the Lease;
and
C. Lender
is the agent for lenders which have made a loan to Grizzly Ventures LLC, a
Delaware limited liability company, as borrower (“Borrower”), an affiliate of
Landlord, having its principal place of business at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇, evidenced or to be evidenced by a
promissory note or notes made by Borrower to the order of such lenders
(collectively, the “Note”) and secured or to be secured by that certain
Construction Mortgage, Assignment of Leases and Rents, Security Agreement and
Fixture Filing dated as of December 20, 2007 (as modified, amended or restated
from time to time, the “Security Instrument”), and that certain Assignment of
Leases and Rents granted by Landlord to or for the benefit of Lender and
encumbering the Property (the “Assignment of Rents”) granted by Landlord to or
for the benefit of Lender and encumbering the Property; and
D. Tenant
has agreed to subordinate the Lease to the lien of the Security Instrument and
Lender has agreed to grant non-disturbance to Tenant under the Lease on the
terms and conditions hereinafter set forth.
AGREEMENT:
For good
and valuable consideration, Tenant and Lender agree as follows:
1. SUBORDINATION. Subject
to the terms hereof, Tenant agrees that the Lease and all of the terms,
covenants and provisions thereof and all rights, remedies and options of Tenant
thereunder are and shall at all times continue to be subject and subordinate in
all respects to the lien of the Security Instrument and to all renewals,
increases, modifications, spreaders, consolidations, replacements and extensions
thereof, to the extent of all sums
G-2
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
secured
thereby and advances made thereunder with the same force and
effect as if the Security Instrument had been executed, delivered and recorded
prior to the execution and delivery of the Lease.
2. NON-DISTURBANCE. If
any action or proceeding is commenced by Lender for the foreclosure of the
Security Instrument or the sale of the Property, Tenant shall not be named as a
party therein unless such joinder shall be required by law, provided, however,
such joinder shall not result in the termination of the Lease or disturb the
Tenant’s possession or use of the premises demised thereunder, and the sale of
the Property in any such action or proceeding and the exercise by Lender of any
of its other rights under the Note or the Security Instrument shall be made
subject to all rights of Tenant under the Lease and shall not disturb Tenant’s
right of possession or use of the premises demised thereunder, provided that at
the time of the commencement of any such action or proceeding or at the time of
any such sale or exercise of any such other rights Tenant shall not be in
default under any of the terms, covenants or conditions of the Lease or of this
Agreement on Tenant’s part to be observed or performed beyond any applicable
notice or grace period.
3. ATTORNMENT. If
Lender or any other subsequent purchaser of the Property shall become the owner
of the Property by reason of the foreclosure of the Security Instrument or the
acceptance of a deed or assignment in lieu of foreclosure or by reason of any
other enforcement of the Security Instrument (Lender or such other purchaser
being hereinafter referred to as “Purchaser”), and the conditions set forth in
Section 2 above have been met at the time Purchaser becomes owner of the
Property, the Lease shall not be terminated or affected thereby but shall
continue in full force and effect as a direct lease between Purchaser and Tenant
upon all of the terms, covenants and conditions set forth in the Lease and in
that event, Tenant agrees to attorn to Purchaser and Purchaser by virtue of such
acquisition of the Property shall be deemed to have agreed to accept such
attornment, whereupon, subject to the observance and performance by Tenant of
all the terms, covenants and conditions of the Lease on the part of Tenant to be
observed and performed, Purchaser shall recognize the leasehold estate of Tenant
under all of the terms, covenants and conditions of the Lease for the remaining
balance of the term with the same force and effect as if Purchaser were the
lessor under the Lease subject to the terms of Section 4 of this Agreement;
provided, however, that Purchaser shall not be:
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(a)
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liable
for the failure of any prior landlord (any such prior landlord, including
Landlord and any successor landlord, being hereinafter referred to as a
“Prior Landlord”) to perform any of its obligations under the Lease which
have accrued prior to the date on which Purchaser shall become the owner
of the Property, provided that the foregoing shall not limit Purchaser’s
liability for, and obligations under the Lease to correct, any conditions
that (i) existed as of the date Purchaser shall become the owner of the
Property and (ii) violate Purchaser’s obligations as landlord under the
Lease; provided further, however, that Purchaser shall have received
written notice of such omissions, conditions or violations and has had an
opportunity to cure the same as provided in Section 5 below, all pursuant
to the terms and conditions of the
Lease;
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(b)
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subject
to any offsets, defenses, abatements or counterclaims which shall have
accrued in favor of Tenant against any Prior Landlord prior to the date
upon which
Purchaser shall become the owner of the Property, except for (i) the right
to recapture from rent any reasonable amounts expended by Tenant to cure a
default of any Prior Landlord for which Lender had received a copy of
notice pursuant to the terms hereof and would have been required to cure
upon succeeding to the interest of Prior Landlord, and (ii) any rental
abatements and/or credits available to Tenant pursuant to Section 3.1,
Article 16 or Article 17 of, or the Services Exhibit attached as Exhibit F to,
the Lease;
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(c)
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liable
for damages for any breach, act or omission of any Prior Landlord which
have accrued prior to the time Purchaser succeeded to any Prior Landlord’s
interest under the Lease by reason of the foreclosure of the Security
Instrument or the acceptance of a deed or assignment in lieu of
foreclosure or by reason of any other enforcement of the Security
Instrument;
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(d)
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liable
for the return of rental security deposits, if any, paid by Tenant to any
Prior Landlord in accordance with the Lease unless such sums are actually
received by Purchaser;
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G-3
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
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(e)
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bound
by any obligation which may appear in the Lease to perform any initial
improvement work to the Property to prepare the premises demised under the
Lease for occupancy by Tenant;
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(f)
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bound
by any payment of rents, additional rents or other sums which Tenant may
have paid more than one (1) month in advance to any Prior Landlord unless
(i) such sums are actually received by Purchaser or (ii) such prepayment
shall have been expressly approved of by
Purchaser;
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(g)
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subject
to the terms and provisions of Section 7 below, bound by any obligation to
make any payment to Tenant which was required to be made prior to the time
Purchaser succeeded to any Prior Landlord’s interest under the Lease by
reason of the foreclosure of the Security Instrument or the acceptance of
a deed or assignment in lieu of foreclosure or by reason of any other
enforcement of the Security Instrument, except for any payments resulting
from any rental abatements and/or credits available to Tenant pursuant to
Section 3.1, Article 16 or Article 17 of, or the Services Exhibit attached
as Exhibit
F to, the Lease;
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(h)
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bound
by any amendment or modification of the rent, term or other material term
of the Lease made without Lender’s or Purchaser’s prior written consent
prior to the time Purchaser succeeded to Landlord’s interest, provided,
however, that no consent from Lender or Purchaser shall be required to any
amendment or modification (including, without limitation, termination) of
the Lease either expressly provided for in the Lease or entered into as a
result of Tenant’s exercise of any renewal, expansion, first refusal,
first offer or other options or rights contained in the Lease;
or
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(i)
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responsible
for the making of repairs in or to the Property in the case of damage or
destruction to the Property or any part thereof due to fire or other
casualty or by reason of condemnation unless Purchaser is obligated under
the Lease to make such repairs and Purchaser receives insurance proceeds
(or would have received insurance proceeds if Purchaser maintained the
insurance required of Landlord under Article XII of the Lease) or
condemnation awards sufficient to finance the completion of such
repairs.
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In the
event that any liability of Purchaser does arise pursuant to this Agreement,
such liability shall be limited and restricted to Purchaser’s interest in the
Property (and the rents, issues and profits derived therefrom and, in the event
of a sale thereof, the proceeds of any such sale) and shall in no event exceed
such interest.
4. NOTICE TO
TENANT. After written notice is given to Tenant by Lender that
the Landlord is in default under the Note and the Security Instrument and that
the rentals under the Lease should be paid to Lender pursuant to the terms of
the Assignment of Rents executed and delivered by Landlord to Lender in
connection therewith, Tenant shall thereafter pay to Lender or as directed by
the Lender, all rentals and all other monies due or to become due to Landlord
under the Lease and Landlord hereby expressly authorizes Tenant to make such
payments to Lender and hereby releases and discharges Tenant from any liability
to Landlord on account of any such payments.
5. NOTICE TO LENDER AND RIGHT
TO CURE. Subject to the terms and provisions of this Section 5
contained herein below, Tenant further agrees that, notwithstanding any
provisions of the Lease other than the Services Exhibit attached as Exhibit F to the
Lease and except as otherwise expressly provided herein below, no cancellation
or termination of the Lease and no abatement or reduction of the rent or
management fees payable thereunder due to a default on the part of Landlord
under the Lease shall be effective unless Lender has received notice of the same
and has failed within thirty (30) days after both Lender’s receipt of said
notice and the time when Lender shall have become entitled under the Security
Instrument to remedy the same, to commence to cure the default which gave rise
to the cancellation or termination of the Lease or abatement or reduction of the
rent or management fee payable thereunder and thereafter fails to diligently
prosecute such cure to completion, provided that in the event Lender cannot
commence such cure without possession of the Property, no cancellation or
termination of the Lease and no abatement or reduction of the rent or management
fees payable thereunder shall be effective if Lender commences judicial or non
judicial proceedings to obtain possession within such thirty (30) day period and
thereafter diligently prosecutes such efforts and cure to
completion. Notwithstanding the foregoing, Lender shall have no
obligation to cure any default by Landlord except as provided in Section 3 above
in the event
G-4
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
Lender
shall become the owner of the Property by reason of the foreclosure of the
Security Instrument or the acceptance of a deed or assignment in lieu of
foreclosure or by reason of any other enforcement of the Security
Instrument. Furthermore, notwithstanding anything to the contrary
contained herein, the requirements of notice and an opportunity to cure afforded
to Lender as set forth in this Section 5 shall not apply to any rent abatements
and/or credits or termination rights: (a) set forth in Part C. of the Services
Exhibit attached as Exhibit F to the
Lease or (b) (i) that do not arise from a default on the part of the “Landlord”
under the Lease and/or (ii) for which such a right or remedy in favor of Tenant
ensues without the requirement of notice and an opportunity to cure being
afforded to Landlord; provided, however Tenant agrees to notify Lender as
provided in Section 8 below of any default on the part of Landlord under the
Lease which would entitle Tenant to cancel or terminate the Lease or to ▇▇▇▇▇ or
reduce the rent or management fees payable thereunder.
6. CASUALTY AND
CONDEMNATION. Tenant understands and agrees that if the
Property or any portion thereof are damaged by fire or other casualty, or are
taken by eminent domain proceedings, any insurance proceeds or condemnation
awards attributable to such casualty or condemnation proceeding shall be subject
to, and shall be distributed in accordance with, the terms of the Security
Instrument and other documents relating to the Loan.
7. OFFICE SPACE
ALLOWANCE. Notwithstanding anything to the contrary contained
herein, in the event Purchaser shall become the owner of the Property by reason
of the foreclosure of the Security Instrument or the acceptance of a deed or
assignment in lieu of foreclosure or by reason of any other enforcement of the
Security Instrument and Tenant provides Purchaser written notice that Landlord
failed to pay or credit when due all or any portion of the Office Space
Allowance (as defined in the Lease) (“Tenant Allowance Notice”), then, within
thirty (30) days of its receipt of the Tenant Allowance Notice, Purchaser shall
issue a credit(s) against monthly Base Rent due under the Lease in an amount
equal to the total amount of the Office Space Allowance due Tenant as required
under Sections 9.1(b) and 9.1(c) of the Lease (“Build-out Rental
Credits”). The total of Build-out Rental Credits to be credited by
Purchaser to Tenant in a single calendar month for such month shall not exceed
one hundred percent (100%) of the Base Rent due under the Lease for such month
and any unapplied balance of the Build-out Rental Credits shall be carried
forward to the next month for which Base Rent is payable. Landlord
hereby acknowledges and agrees to provide Lender with copies of any written
correspondence from Landlord to Tenant regarding the credit or application of
the Office Space Allowance, provided, that, Landlord’s failure to so provide any
such copies of written correspondence to Lender shall in no way affect or impair
Tenant’s rights and entitlements under this Section 7.
8. NOTICES. Any notice,
demand, request or other communication which any party hereto may be required or
may desire to give hereunder shall be in writing and shall be deemed to have
been properly given (a) if hand delivered, when delivered; (b) if mailed by
United States Certified Mail (postage prepaid, return receipt requested), three
Business Days after mailing (c) if by Federal Express or other reliable
overnight courier service, on the next Business Day after delivered to such
courier service or (d) if by telecopier on the day of transmission if confirmed
receipt is obtained:
If to
Tenant: Rackspace
US, Inc.
▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:
General Counsel
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
With a
copies
to:
Rackspace US, Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention:
Director of Real Estate
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Smith, Robertson, ▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇▇▇▇ & ▇▇▇▇, L.L.P.
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
G-5
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
Attention:
▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to
Lender: KeyBank
National Association, as Agent
▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Attention: Real
Estate Capital Services, ▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile:
(▇▇▇) ▇▇▇-▇▇▇▇
or
addressed as such party may from time to time designate by written notice to the
other parties. For purposes of this Section 8, the term “Business Day” shall
mean a day on which commercial banks are not authorized or required by law to
close in the state where the Property is located. Either party by notice to the
other may designate additional or different addresses for subsequent notices or
communications.
9. SUCCESSORS AND
ASSIGNS. This Agreement shall be binding upon and inure
to the benefit of Lender, Tenant and Purchaser and their respective successors
and assigns.
10. GOVERNING
LAW. This Agreement shall be deemed to be a contract
entered into pursuant to the laws of the State of Illinois and shall in all
respects be governed, construed, applied and enforced in accordance with the
laws of the State of Illinois.
11. MISCELLANEOUS. This
Agreement may not be modified in any manner or terminated except by an
instrument in writing executed by the parties hereto. If any term, covenant or
condition of this Agreement is held to be invalid, illegal or unenforceable in
any respect, this Agreement shall be construed without such provision. This
Agreement may be executed in any number of duplicate originals and each
duplicate original shall be deemed to be an original. This Agreement may be
executed in several counterparts, each of which counterparts shall be deemed an
original instrument and all of which together shall constitute a single
Agreement. Whenever the context may require, any pronouns used herein shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns and pronouns shall include the plural and vice
versa. Landlord and Lender each acknowledge and agree that neither
the Security Instrument nor any other instrument evidencing, securing or
relating to Lender’s interest in the Property does or shall cover, or be
construed as subjecting in any manner to the liens thereof, any of the
improvements, personal property, trade fixtures, equipment or facilities located
in or about the Property that is owned, financed, licensed and/or leased by
Tenant. Subject to the terms and provisions of Section 3(h) above
regarding amendments or other modifications to the Lease, Lender agrees that
this Agreement satisfies any condition or requirement in the Security Instrument
relating to the approval by Lender of the Lease. Tenant, Landlord and
Lender each represents and warrants to the other that the individual signing on
its behalf hereinbelow has the right, power and authority to so execute this
Agreement.
[REMAINDER
OF PAGE INTENTIONALLY LEFT BLANK]
G-6
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
IN
WITNESS WHEREOF, Lender and Tenant have duly executed this Agreement as of the
date first above written.
LENDER:
KEYBANK
NATIONAL ASSOCIATION, a national banking association, as Agent
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By:
|
_____________________ |
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Name:
_____________________
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Its:
|
_____________________ |
STATE
OF _____________________ )
COUNTY
OF ___________________ )
On
_____________, 2009 before me, ,
Notary Public, personally appeared ,
personally known to me to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their capacity as ______________ of KeyBank National Association, a
national banking association, as Agent, and that by his/her/their signature(s)
on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
WITNESS
my hand and official seal.
| Notary Public | |||
| My commission expires: |
[SIGNATURES
CONTINUE ON FOLLOWING PAGE]
G-7
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
TENANT:
RACKSPACE
US, INC., a Delaware corporation
By: ____________________________________
Name:
__________________________________
Its: ____________________________________
STATE
OF _____________________ )
COUNTY
OF ___________________ )
On
_____________, 2009 before me, ,
Notary Public, personally appeared ,
personally known to me to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their capacity as ____________________ of Rackspace US, Inc., a
Delaware corporation, and that by his/her/their signature(s) on the instrument
the person(s), or the entity upon behalf of which the person(s) acted, executed
the instrument.
WITNESS
my hand and official seal.
| Notary Public | |||
| My commission expires: |
[SIGNATURES
CONTINUE ON FOLLOWING PAGE]
G-8
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
The
undersigned hereby joins in the execution of this Agreement in order to evidence
its acceptance of, and agreement to, the provisions of Section 4
hereof.
LANDLORD:
TARANTULA VENTURES LLC, a
Delaware limited liability company
By: Tarantula
Interests LLC, a Delaware limitedliability company, its Managing
Member
By: Safari
Ventures LLC, a Delaware limited liabilitycompany, its Managing
Member
By: DuPont
Fabros Technology, Inc., aMaryland corporation, its Managing Member
By: ____________________________________
Name:
___________________________________
Title:
____________________________________
Dated:
___________________________________
STATE OF
_____________________ )
COUNTY
OF _____________________ )
On
_____________, 2___ before me, ,
Notary Public, personally appeared ,
personally known to me to be the person(s) whose name(s) is/are subscribed to
the within instrument and acknowledged to me that he/she/they executed the same
in his/her/their capacity as _____________ of DuPont Fabros Technology, Inc., a
Maryland corporation, the Managing Member of Safari Ventures LLC, a Delaware
limited liability company, the Managing Member of Tarantula Interests LLC, a
Delaware limited liability company, the Managing Member of Tarantula Ventures
LLC, a Delaware limited liability company, and that by his/her/their
signature(s) on the instrument the person(s), or the entity upon behalf of which
the person(s) acted, executed the instrument.
WITNESS
my hand and official seal.
| Notary Public | |||
| My commission expires: |
G-9
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
Exhibit
“A”
Legal
Description
LOT 1 IN
ENESCO IMPORTS CORP. SUBDIVISION, A RESUBDIVISION OF LOTS 1 AND 2 IN GREAT-WEST
INDUSTRIAL SUBDIVISION, A RESUBDIVISION OF PART OF ▇▇▇ ▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇, ▇ SUBDIVISION IN THE SOUTHEAST ¼ OF SECTION 34, TOWNSHIP 41
NORTH, RANGE 11, EAST OF THE THIRD PRINCIPAL MERIDIAN, ACCORDING TO THE PLAT
THEREOF RECORDED FEBRUARY 13, 1986 AS DOCUMENT 86063318, IN ▇▇▇▇ COUNTY,
ILLINOIS.
Permanent
Tax/Assessor Parcel Number: 08-34-402-058-0000
G-10
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
EXHIBIT
H
Form
of Guaranty
THIS GUARANTY is made as of January
____, 2009, by RACKSPACE HOSTING, INC., a Delaware corporation, having an
address at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ("Guarantor"), to TARANTULA
VENTURES LLC, a Delaware limited liability company ("Landlord"), having an address
at ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇.▇., ▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇.
WHEREAS, Landlord has leased to
Rackspace US, Inc., a Delaware corporation ("Tenant"), certain space (the
"Premises") in the data
center facility known as CH1 and located in Elk Grove Village, Illinois,
pursuant to that certain Deed of Lease by and between Landlord and Tenant dated
as of _______________, 2009 (the "Lease");
WHEREAS, Guarantor is materially
benefited by the Lease, and Guarantor’s executing this Guaranty is a material
inducement to Landlord to enter into the Lease.
NOW THEREFORE, in consideration of the
premises, and of other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, Guarantor agrees with Landlord as
follows:
1. Guarantor
unconditionally and irrevocably guarantees that all sums stated in the Lease to
be payable by Tenant shall be promptly paid in full when due in accordance with
the Lease and that Tenant shall perform and observe its covenants
thereunder. If any such sum or covenant is not timely paid, performed
or observed, then Guarantor shall, within ten (10) business days of receipt of
written demand from Landlord, pay the same regardless of (a) whether Landlord
shall have taken any steps to enforce any rights against Tenant or any other
person, (b) termination of the Lease as a result of Tenant’s default, or (c) any
other condition or contingency; provided that no such demand shall be made
unless (i) with respect to payments of Base Rent and/or Additional Rent, an
Event of Default has occurred, or (ii) with respect to payment of other sums,
Tenant has defaulted in the payment of such sum, both Tenant and Guarantor have
received written notice from Landlord of such default and such defaults shall
have remained uncured for a period of twenty (20) days after both Tenant and
Guarantor have received notice. Guarantor shall also pay all
reasonable expenses of collecting such sum or any part thereof or of otherwise
enforcing this Guaranty, including reasonable attorneys’ fees. This
Guaranty is irrevocable, unconditional and absolute.
2. Guarantor’s
obligations and covenants under this Guaranty shall in no way be affected or
impaired by reason of the happening from time to time of any of the following,
whether or not Guarantor has been notified thereof or consented thereto: (i)
Landlord’s waiver of the performance or observance by Guarantor or any other
party (other than Tenant) of any covenant or condition contained in the Lease or
this Guaranty; (ii) any extension, in whole or in
H-1
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
part, of the time for payment by Tenant or Guarantor of any sums
owing or payable under the Lease or this Guaranty, or of any other sums or
obligations under or arising out of or on account of the Lease or this Guaranty,
or the renewal of the Lease or this Guaranty; (iii) any assignment of the Lease
or subletting of the Premises or any part thereof; provided, that, in the event
Tenant assigns all of its interest in the Lease or subleases its interest in the
Premises in its entirety, other than to an Affiliate, Guarantor shall not be
liable hereunder for any option periods, renewals, extensions or modifications
of the Lease negotiated or effected between Landlord and any such
assignee/sublessee, unless Guarantor otherwise agrees in writing; (iv) any
modification or amendment (whether material or otherwise) of any of the
obligations of Tenant or Guarantor under the Lease or this Guaranty; (v) the
doing or the omission of any act referred to in the Lease or this Guaranty
(including the giving of any consent referred to in the Lease or this Guaranty);
(vi) Landlord’s failure or delay to exercise any right or remedy available to
Landlord or any action on the part of Landlord granting indulgence or extension
in any form whatsoever; (vii) the voluntary or involuntary liquidation,
dissolution, sale of any or all of the assets, marshaling of assets and
liabilities, receivership, conservatorship, insolvency, bankruptcy, assignment
for the benefit of creditors, reorganization, arrangement, composition or
readjustment of, or other similar proceeding affecting, Tenant or Guarantor or
any of Tenant’s or Guarantor’s assets; or (viii) the release of Guarantor from
the performance or observation of any covenant or condition contained in the
Lease or this Guaranty by operation of law.
3. To
the extent not prohibited by law, Guarantor hereby expressly waives (a) any
right Guarantor may now or hereafter have to any hearing prior to the attachment
of any real or personal property to satisfy Guarantor’s obligations, and (b) the
benefits of any present or future constitution, statute or rule of law which
exempts property from liability for debt.
4. No
rejection, disaffirmance or termination of the Lease by Tenant or Tenant’s
trustee in bankruptcy pursuant to bankruptcy law or any other law affecting
creditors’ rights, shall be effective to release and/or terminate the continuing
liability of Guarantor to Landlord under this Guaranty.
5. Notice
of acceptance of this Guaranty and notice of any obligations or liabilities
contracted or incurred by Tenant are hereby waived by
Guarantor. Guarantor hereby waives presentment, notice of dishonor,
protest and notice of non-payment or non-performance.
6. This
Guaranty shall be construed in accordance with the laws of the jurisdiction in
which the Premises are located, without giving reference to conflict of law
principles.
7. This
Guaranty may not be modified or amended except by a written agreement duly
executed by Guarantor and Landlord.
8. Subject
to Guarantor’s right to avail itself of any defenses available to Tenant,
Guarantor’s liability shall be primary and joint and several with that of
Tenant. Landlord may proceed against Guarantor under this Guaranty
without initiating or exhausting any remedy against Tenant, and may proceed
against Tenant and Guarantor separately or concurrently. If Guarantor
consists of more than one person or entity, the liability of each person
H-2
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
or entity
comprising Guarantor shall be joint and several with that of all other persons
or entities comprising Guarantor, and Landlord may proceed separately or
concurrently against any or all persons or entities comprising
Guarantor.
9. Within
ten (10) business days after Landlord’s written request, Guarantor shall execute
and deliver to Landlord a written statement certifying any reasonable matter
concerning this Guaranty or the Lease as Landlord may reasonably
request.
10. Any
notice which Landlord may elect to send shall be binding upon Guarantor if
delivered by overnight delivery by a nationally recognized carrier, or if sent
by certified or registered mail, return receipt requested, postage prepaid, to
Guarantor’s address as set forth in Section 24.6 of the Lease, .
11. All
actions or proceedings arising in connection with this Guaranty shall be
litigated only in a court of competent jurisdiction in the jurisdiction in which
the Premises are located. Each person or entity comprising Guarantor
consents to the jurisdiction of the courts of such jurisdiction, waives any
objection to the venue of any action filed in any court situated in such
jurisdiction, and waives any right under the doctrine of forum non-conveniens,
or otherwise, to transfer any such action filed in any such court to any other
court.
12. This
Guaranty shall be binding upon, and inure to the benefit of, the parties hereto
and their respective heirs, personal representatives, successors and
assigns.
13. Capitalized
terms not otherwise defined herein shall have the same meaning as set forth in
the Lease.
14. THE
UNDERSIGNED HEREBY WAIVES TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM BROUGHT EITHER BY LANDLORD OR THE UNDERSIGNED (OR ANY OF THEM)
AGAINST THE OTHER WITH RESPECT TO ANY MATTERS WHATSOEVER ARISING OUT OF OR IN
ANY WAY CONNECTED TO THE LEASE OR THIS GUARANTY.
IN WITNESS WHEREOF, Guarantor has
caused this Guaranty to be executed under seal as of the date first above
written.
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WITNESS:
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GUARANTOR:
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a
Delaware corporation
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By:
Name:
Title:
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H-3
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
EXHIBIT
I
OFFICE
BUILDING SERVICES AND UTILITIES
1. Water
service for use in the lavatories on the floor on which the Office Space is
located and cold water service at the riser for use in the Office Space,
including any kitchenette located therein.
2. Heat
and air conditioning in season 24 hours per day, 7 days per week, at such
temperatures and in such temperature ranges and at such humidity levels as are
consistent with comparable office buildings in the Chicago, Illinois
metropolitan area. Tenant shall have the right, at Tenant’s sole cost
and expense, to install one (1) or more supplemental HVAC units to service the
Office Space.
3. Maintenance
and repair of the Office Building as described in Section 8.2 of the
Lease.
4. Janitorial
service customarily provided by owners of comparable office buildings in the
Chicago, Illinois metropolitan area, five days per week (excluding
Holidays).
5. Exterior
window washing at such intervals as reasonably determined by
Landlord.
6. Electricity
to the Office Space at a rate of 8 ▇▇▇▇▇ per rentable square feet.
7. Security
for the Office Building in accordance with Article V of the Lease.
8. Use
of Office Space Conduits in accordance with Section 11.3 of the
Lease.
I-1
CONFIDENTIAL
MATERIAL HAS BEEN OMMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISION. BOXES AND ASTERIXES DENOTE SUCH OMISSION
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Table
of Contents
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Page
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ARTICLE
I THE PREMISES
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1
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ARTICLE
II TERM
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3
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ARTICLE
III BASE RENT
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5
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ARTICLE
IV ADDITIONAL RENT
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6
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ARTICLE
V SECURITY
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11
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ARTICLE
VI USE OF PREMISES
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13
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ARTICLE
VII ASSIGNMENT AND SUBLETTING
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16
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ARTICLE
VIII MAINTENANCE AND REPAIRS
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21
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ARTICLE
IX ALTERATIONS
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23
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ARTICLE
X SIGNS
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26
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ARTICLE
XI LANDLORD ACCESS
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26
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ARTICLE
XII INSURANCE
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28
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ARTICLE
XIII SERVICES AND UTILITIES
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30
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ARTICLE
XIV LIABILITY OF LANDLORD
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35
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ARTICLE
XV RULES AND REGULATIONS
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37
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ARTICLE
XVI DAMAGE OR DESTRUCTION
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37
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ARTICLE
XVII CONDEMNATION
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41
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ARTICLE
XVIII DEFAULT
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42
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ARTICLE
XIX BANKRUPTCY
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46
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ARTICLE
XX SUBORDINATION MORTGAGES
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47
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ARTICLE
XXI HOLDING OVER
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49
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ARTICLE
XXII COVENANTS OF LANDLORD
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49
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ARTICLE
XXIII PARKING
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49
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ARTICLE
XXIV GENERAL PROVISIONS
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50
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ARTICLE
XXV RENEWAL
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54
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ARTICLE
XXVI COMMUNICATIONS EQUIPMENT
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55
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ARTICLE
XXVII GUARANTOR
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59
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[*****]
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i