LEASE
Exhibit
10.61
THIS
LEASE, made as of the 31st day of March, 2000, by and between the Landlord
and Tenant hereinafter defined in Sections 1(a) and 1(c),
respectively.
W
I T N E S S E T H:
1.Basic
Lease Provisions.
The
following sets forth basic data hereinafter referred to in this Lease and,
where
appropriate, constitute definitions of the terms hereinafter
listed:
(a)
Landlord:
FCN
Associates, L.L.C., a Michigan limited liability company.
(b)
Landlord's
Address:
00000
Xxxxxxxxxxxx Xxxxxxx, Xxxxx 000, X.X. Xxx 00, Xxxxxxxxxx, Xxxxxxxx
00000-0000.
(c)
Tenant:
MGC
Communications, Inc. d/b/a Mpower Communications Corp., a Nevada
corporation.
(d)
Tenant's
Address:
0000
Xxxxx Xxxxxxx Xxxxx, Xxx Xxxxx, Xxxxxx 00000
(e)
Building:
That
certain office building known as 300
Galleria Officentre
located
in the City of Southfield, County of Oakland and State of Michigan.
(f)
Demised
Premises:
The
premises known as Suite
100,
located
on the first
floor
of the
Building, containing approximately 12,079
square
feet of usable floor area and 13,529
square
feet of rentable floor area as shown on the floor plan attached hereto as
Exhibit "A".
(g
)
Commencement
Date:
June
1, 2000 (provided that in the event Tenant shall occupy the switch room area
prior to June 1, 2002, the Lease shall commence on a pro-rata basis as to the
switch room area and any ancillary areas used in connection therewith on the
date Tenant so occupies the switch room area).
(h)
Expiration
Date:
The
last day of the one
hundred twentieth (120th)
complete
calendar month following the Commencement Date.
(i)
Basic
Rental:
a.
For
the
period beginning on the Commencement
Date
and
ending on May
31, 2001,
Basic
Rental shall be $25,930.58
per
month
($23.00
per
square foot per annum), provided
in the event the Lease shall commence as to the switch room area and ancillary
areas prior to June 1, 2000 pursuant to Section 1(g) above, then the Basic
Rental payable for the period beginning on the Commencement Date and ending
on
May 31, 2000 shall be prorated based upon the total rentable area of the switch
room area and ancillary areas so occupied;
b.
For
the
period beginning on June
1, 2001
and
ending on May
31, 2002,
Basic
Rental shall be $26,494.29
per
month ($23.50
per
square foot per annum);
c.
For
the
period beginning on June
1, 2002
and
ending on May
31, 2003,
Basic
Rental shall be $27,058.00
per
month ($24.00
per
square foot per annum);
d.
For
the
period beginning on June
1, 2003
and
ending on May
31, 2004,
Basic
Rental shall be $27,621.71
per
month ($24.50
per
square foot per annum);
e.
For
the
period beginning on June
1, 2004
and
ending on May
31, 2005,
Basic
Rental shall be $28,185.42
per
month ($25.00
per
square foot per annum);
f.
For
the
period beginning on June
1, 2005
and
ending on May
31, 2006,
Basic
Rental shall be $28,749.13
per
month ($25.50
per
square foot per annum);
g.
For
the
period beginning on June
1, 2006
and
ending on May
31, 2007,
Basic
Rental shall be $29,312.83
per
month ($26.00
per
square foot per annum);
h.
For
the
period beginning on June
1, 2007
and
ending on May
31, 2008,
Basic
Rental shall be $29,876.54
per
month ($26.50
per
square foot per annum);
i.
For
the
period beginning on June
1, 2008
and
ending on May
31, 2009,
Basic
Rental shall be $30,440.25
per
month ($27.00
per
square foot per annum); and
j.
For
the
period beginning on June
1, 2009
and
ending on May
31, 2010,
Basic
Rental shall be $31,003.96
per
month ($27.50
per
square foot per annum).
(j)
Base
Expenses:
Expenses (as defined in Section 14.1(a) hereof) incurred for the 2000
calendar
year.
(k)
Deposit:
$31,003.96.
(m)
Tenant
Improvement Allowance.
$90,238.43
($6.67
per
rentable square foot).
2.
Demised
Premises.
2.1
Landlord,
in consideration of the rents to be paid and the covenants to be performed
by
Tenant, and upon and subject to the terms and provisions herein set forth,
does
hereby lease unto Tenant the demised premises described in Section 1(f) hereof
together with the non-exclusive right and easement to use the exterior and
interior common and public areas and facilities which may from time-to-time
be
furnished by Landlord, including parking areas and decks (other than the
enclosed parking garage), in common with Landlord and the tenants and occupants
(their agents, employees, customers and invitees) of the Building and of
adjacent buildings now or hereafter constructed (such exterior and interior
common areas and facilities to be hereinafter referred to as the "common
areas").
2.2
Landlord
reserves the right (a) to designate certain parking areas for the exclusive
use
of designated tenants or for short term parking, (b) to make changes,
alterations, additions, improvements, repairs or replacements in or to the
Building (including the demised premises) and the fixtures and equipment thereof
as well as the interior and exterior common areas, including the construction
of
additional buildings and parking decks; (c) to eliminate, substitute and/or
rearrange the interior and exterior common areas as Landlord deems appropriate
in its discretion, and (d) to erect, maintain and use pipes, ducts, conduits
and
wires in and through the demised premises in locations which will not materially
interfere with Tenant's use thereof.
3.
Term
and Construction.
3.1
The
term of this Lease shall commence on the Commencement Date (as defined in
Section 1(g) hereof) and expire on the Expiration Date (as defined in Section
1(h) hereof), subject to any extensions pursuant to Article 29
hereof.
3.2
Tenant shall accept the demised premises in their then "as is" condition as
of
the Commencement Date, and Tenant acknowledges that no representations as to
the
condition of the demised premises have been made by Landlord or its agents
(except as expressly set forth in this Lease), and no obligations as to
renovating, improving or adding to the same have been assumed by Landlord
(except as expressly set forth in this Lease). Any changes, alterations or
improvements which Tenant wishes to make to the demised premises shall be made
at Tenant's sole cost and expense and in accordance with Article 8 and Exhibit
“C” hereto. Landlord shall use its best efforts to substantially complete the
Tenant Improvement Work (as defined in Exhibit "C" attached hereto) and obtain
all governmental approvals required for the occupancy of the demised premises
within sixty
(60) days
following the approval by Tenant of the Tenant Improvement Cost (as defined
in
Exhibit "C") subject to any long lead items
4.
Basic
Rental.
Tenant
shall pay to Landlord as rent for the demised premises the Basic Rental set
forth in Section 1(i) hereof. The installment of Basic Rental payable with
respect to the first
month of
the term hereof shall be payable upon the execution of this Lease, and
thereafter the Basic Rental shall be paid, in advance, upon the first day of
each and every successive calendar month after the first
month
throughout the term of this Lease; provided, however, that if the Commencement
Date is other than the first day of a calendar month or the Expiration Date
is
other than the last day of a calendar month, then the rental for such first
or
last fractional month shall be such portion of the monthly rental then in effect
as the number of days in such fractional month bears to the total number of
days
in the calendar month.
5.
Use
and Occupancy.
6.
Utilities
and Services.
6.1
Landlord will arrange for the furnishing of electricity to the demised premises,
and Tenant shall pay for such electricity at the applicable secondary rates
dictated by Detroit Edison. Such charge to Tenant for electricity shall be
payable, as additional rent, in monthly installments payable within thirty
(30)
days following receipt of an invoice from Landlord.
6.2
Landlord shall furnish the demised premises with (a) heat, ventilation and
air
conditioning to the extent required for the occupancy of the demised premises
to
standards of comfort, and during such hours, as reasonably determined by
Landlord for the Building (which hours, until Landlord shall otherwise
designate, shall be from 7:00 a.m. to 7:00 p.m. on weekdays and from 8:00 a.m.
to 3:00 p.m. on Saturdays; in each case except holidays), or as may be
prescribed by any applicable policies or regulations adopted by any utility
or
governmental agency, provided Landlord shall not be required to provide
supplemental ventilation and air conditioning to the demised premises required
by reason of heat generating equipment or lighting other than building standard
lights, or if the demised premises shall be occupied by a number of persons
in
excess of the design criteria of the air conditioning system, or to accommodate
any other extraordinary ventilation or air conditioning requirements of Tenant,
and (b) elevator service. It
is understood and agreed that the Basic Rental does not include janitorial
services in the demised premises. In the event Tenant desires to receive
janitorial services in any portion of the demised premises, Tenant shall pay
the
cost of such services. In
addition, Landlord shall replace all burned out fluorescent (only) tubes,
ballasts and starters.
Landlord
shall not be in default hereunder or be liable for any damages directly or
indirectly resulting from, nor shall the rental herein reserved be abated or
an
actual or constructive eviction or partial eviction be deemed to have occurred
by reason of: (1) the installation, use or interruption of use, of any equipment
in connection with the furnishing of any of the foregoing services, (2) failure
to furnish or delay in furnishing any such services when such failure or delay
is caused by accident or any condition beyond the reasonable control of Landlord
or by the making of necessary repairs or improvements to the demised premises
or
to the Building, or (3) any limitation, curtailment, rationing or restriction
on
use of water, electricity, steam, gas or any other form of energy serving the
demised premises or the Building. Landlord shall use reasonable efforts
diligently to remedy any interruption in the furnishing of such
services.
Notwithstanding
the preceding paragraph, in the event that Tenant is prevented from using,
and
does not use, the demised premises or any portion thereof, for more than five
(5) consecutive business days as a result of any failure of Landlord to provide
services to the demised premises as a result of the negligence or willful act
of
Landlord, its agents, contractors or employees, then Tenant's Basic Rental
and
additional rent shall be abated or reduced, as the case may be, after expiration
of the 5-day period for such time that Tenant continues to be so prevented
from
using the demised premises or a portion thereof, in the proportion that the
rentable area of the portion of the demised premises that Tenant is prevented
from using, and does not use, bears to the total rentable area of the demised
premises.
7.
Repairs.
7.1
Landlord shall maintain (i) the common areas, including any lobbies, stairs,
elevators, corridors and restrooms, (ii) the windows and exterior walls, roofs,
foundations and structure of the Building, and (iii) the mechanical, plumbing
and electrical equipment servicing the Building, in good order and condition
as
reasonably determined by Landlord. Notwithstanding the foregoing, Tenant shall
pay the cost of any repairs occasioned by the act, neglect or default of Tenant,
its agents, employees, invitees and contractors.
7.2
Subject
to the provisions of Section 7.1 hereof, Tenant shall keep the demised premises
and every part thereof (including any special equipment installed in the demised
premises such as supplemental HVAC equipment, transformers, plumbing, and fire
extinguishers, and any other alterations, additions or improvements, whether
installed by Landlord or Tenant) in good condition and repair. All repairs
made
by or on behalf of Tenant shall be made and performed in such manner as Landlord
may designate, by contractors or mechanics approved by Landlord and in
accordance with the rules and regulations relating thereto annexed to this
Lease
as Exhibit "B" and all applicable laws, codes and regulations. Subject to the
provisions of Article 8 hereof regarding the obligation to restore improvements,
Tenant shall, at the end of the term hereof, surrender to Landlord the demised
premises in the same condition as when received, except for ordinary wear and
tear, repairs required to be made by Landlord, and damage by fire, earthquake,
act of God or the elements. Landlord has no obligation, and has made no promise,
to alter, remodel, improve, repair, decorate or paint the demised premises
or
any part thereof and no representations respecting the condition of the demised
premises or the Building have been made by Landlord to Tenant except as
expressly set forth herein.
8. Alterations.
9.
Insurance
and Indemnification.
9.1
Landlord
shall provide and keep in force, or cause to be provided or kept in force,
during the term hereof: (a) commercial general liability insurance with respect
to Landlord's operation of the Building and the common areas for bodily injury
or death and damage to property of others; (b) fire insurance (including
standard extended coverage endorsement perils and leakage from fire protection
devices) in respect of the Building and the common areas, excluding Tenant's
trade fixtures, equipment, personal property and leasehold improvements; and
(c)
loss of rental income insurance; together with such other insurance as Landlord,
in its sole discretion, elects to obtain. Insurance provided by Landlord shall
have such limits of liability, deductibles and exclusions, and shall otherwise
be on such terms and conditions as Landlord shall from time to time determine
reasonable and sufficient. Tenant acknowledges that Landlord's loss of rental
income insurance may provide that (i) payments thereunder by the insurer will
be
limited to a period of twelve (12) months following the date of any destruction
and damage, and (ii) no insurance proceeds will be payable thereunder in the
case of destruction or damage caused by any occurrence other than fire and
other
risks included in the standard extended coverage endorsement perils of a fire
insurance policy.
9.2
Tenant shall indemnify and hold Landlord harmless from any damage to any
property or injury to or death of any person occurring in, upon or about the
demised premises, unless caused by the negligence or willful act of Landlord,
its agents or employees. The foregoing indemnity obligation of Tenant shall
include reasonable attorney's fees, investigation costs and all other costs
and
expenses incurred from the first notice that any claim or demand is to be made
or may be made. The provisions of this Section 9.2 shall survive the termination
of this Lease with respect to any damage, injury or death occurring prior to
such termination.
9.3
Tenant
shall procure and keep in effect commercial general liability insurance,
including property damage and contractual liability, on an occurrence basis
with
bodily injury and property damage combined single limits of liability of not
less than Two Million Dollars ($2,000,000) per occurrence, insuring Landlord
and
Tenant against any liability arising out of the ownership, use, occupancy or
maintenance of the demised premises and all areas appurtenant thereto. From
time
to time, Tenant shall increase the limits of such policies to such higher limits
as Landlord shall reasonably require.
9.4
Tenant
shall procure and keep in effect fire insurance (including standard extended
coverage endorsement perils and leakage from fire protection devices) for the
full replacement cost of Tenant's trade fixtures, equipment, personal property
and any leasehold improvements installed by Tenant.
10.
Assignment
and Subletting.
10.1
Except as expressly permitted pursuant to this Article 10, Tenant shall not,
without the prior written consent of Landlord, which consent shall not be
unreasonably withheld, assign, transfer, hypothecate, or mortgage this Lease
or
any interest herein or sublet the demised premises or any part thereof, or
permit the use of the demised premises by any party other than Tenant. Any
assignment, transfer (including transfers by operation of law or otherwise),
hypothecation, mortgage, or subletting without such written consent shall give
Landlord the right to terminate this Lease and to re-enter and repossess the
demised premises, but Landlord's right to damages shall survive. No consent
by
Landlord to any assignment, transfer, hypothecation, mortgage or subletting
on
any one occasion shall be deemed a consent to any subsequent assignment,
transfer, hypothecation, mortgage or subletting by Tenant or by any successors,
assigns, transferees, mortgagees or sublessees of Tenant. The acceptance of
rental by Landlord from any other person shall not be deemed a waiver by
Landlord of any provision hereof. In the event of any such assignment, transfer,
hypothecation, mortgage or subletting (including pursuant to Section 10.3
hereof), Tenant shall remain fully and primarily liable to perform all of the
obligations of Tenant under this Lease and in the event of a default hereunder,
Landlord may proceed directly against Tenant without the necessity of exhausting
remedies against such assignee or successor.
10.2
If
at any time or from time to time during the term of this Lease, Tenant desires
to sublet all or any part of the demised premises or to assign this Lease,
Tenant shall give notice to Landlord ("Tenant's Subletting Notice") setting
forth the proposed subtenant or assignee and the terms of the proposed
subletting or assignment. Landlord shall have the option, exercisable by notice
given to Tenant within twenty (20) days after Tenant's Subletting Notice is
received, (a) to consent or refuse to consent thereto, (b) if Tenant's request
relates to a subletting, to terminate this Lease as to the portion of the
demised premises to be sublet, or (c) if Tenant's request relates to an
assignment, to terminate this Lease. In the event Landlord shall consent to
the
proposed subletting or assignment, Tenant shall be free for a period of one
hundred eighty (180) days thereafter to sublet such space or to assign this
Lease, provided that the subtenant or assignee and the terms of the sublease
or
assignment shall be as set forth in Tenant's Subletting Notice.
In
the
event Tenant shall so sublet a portion of the demised premises or assign this
Lease, fifty percent (50%) of all of the sums or other economic consideration
received by Tenant as a result of such subletting or assignment, whether
denominated rentals or otherwise under the sublease or assignment, which exceed,
in the aggregate, the total sums which Tenant is obligated to pay Landlord
under
this Lease (prorated to reflect obligations allocable to that portion of the
demised premises subject to such sublease for the period of time covered by
such
sublease and after deducting therefrom the costs incurred by Tenant in
connection with such sublease or assignment, such as brokerage commissions
and
tenant improvement costs) shall be payable to Landlord as additional rental
under this Lease without affecting or reducing any other obligation of Tenant
hereunder.
10.3
Notwithstanding the provisions of Sections 10.1 and 10.2 hereof, (i) Tenant
may
assign this Lease or sublet the demised premises or any portion thereof, without
Landlord's consent and without extending any option to Landlord, to any entity
which controls, is controlled by or is under common control with Tenant,
provided that said assignee assumes, in full, the obligations of Tenant under
this Lease, and (ii) Tenant shall have the right to enter into co-location
and
similar agreements, without Landlord’s consent and without extending any option
to Landlord, with certain suppliers, licensees and customers of Tenant to permit
such parties to install certain communications equipment in the demised premises
in order to interconnect with Tenant’s equipment or to permit Tenant to manage
or operate such parties’ equipment, or as may be required pursuant to applicable
law.
11.
Damage
or Destruction.
11.1
In
the event the demised premises or any portion of the Building necessary for
Tenant's use of the demised premises are damaged or destroyed in whole or in
part during the term hereof by fire or other casualty insured against by
Landlord's fire and extended coverage insurance policy covering the Building,
Landlord shall, at its own cost and expense, repair and restore the same to
tenantable condition with reasonable dispatch, and during such time as any
portion of the demised premises is unusable by reason of such damage, the rent
herein provided shall xxxxx in such proportion as that part of the demised
premises so rendered unusable bears to the entire demised premises.
11.2
Notwithstanding the provisions of Section 11.1 hereof, if, in the reasonable
opinion of Landlord, (i) the demised premises cannot be restored to tenantable
condition within a period of one hundred twenty (120) days following the
commencement of such restoration work, and/or (ii) the cost of performing such
restoration work exceeds the proceeds of such insurance by more than One Hundred
Thousand Dollars ($100,000), then Landlord shall not be required to make any
repairs and Landlord shall have the right to terminate this Lease upon written
notice to Tenant within sixty (60) days after the date of such fire or other
casualty, in which event (i) this Lease shall terminate ninety (90) days
following Tenant’s receipt of such notice and Landlord and Tenant shall be
released from any and all liability thereafter accruing hereunder, and (ii)
Tenant shall remove any equipment or personal property from the demised premises
within ninety (90) days following receipt of such notice.
11.3
If
the demised premises are to be repaired under this Article 11, Landlord shall
repair any injury or damage to the Building itself and the leasehold
improvements in the demised premises to be constructed or installed by Landlord,
excluding leasehold improvements in excess of building standard. Tenant shall
perform, and pay the cost of, repairing any other improvements in the demised
premises and shall be responsible for carrying such casualty insurance as it
deems appropriate with respect to such other improvements. Tenant shall, at
its
own cost and expense, remove such of its furniture and other belongings from
the
demised premises as Landlord shall require in order to repair and restore the
demised premises.
12.
Eminent
Domain.
13.
Rules
and Regulations.
14.
Expenses
and Taxes.
14.1
The
following terms shall have the following meanings:
(a)
The
term
"Expenses" shall mean the actual cost incurred by Landlord with respect to
the
operation, maintenance, repair, replacement and administration of the Building
and the common areas, including, without limitation, (i) the costs incurred
for
air conditioning, mechanical ventilation, and heating of the Building and the
common areas; cleaning (including
janitorial services, but
excluding janitorial services within premises leased to
tenants);
rubbish removal; snow removal; general landscaping and maintenance; window
washing; elevators; escalators; porters and matron services; electric current;
management fees; protection and security services; repairs, replacement, and
maintenance; insurance; supplies; wages, salaries and employee benefits
respecting service and maintenance employees and management staff; uniforms
and
working clothes for such employees and the cleaning thereof; expenses imposed
pursuant to any collective bargaining agreement with respect to such employees;
payroll, social security, unemployment and other similar taxes with respect
to
such employees and staff; sales, use and other similar taxes; Landlord's
Michigan Single Business Tax; water rates and sewer charges and personal
property taxes; depreciation of movable equipment and personal property which
is, or should be, capitalized on the books of Landlord, and the cost of movable
equipment and personal property which need not be so capitalized, as well as
the
cost of maintaining all such movable equipment and personal property; and any
other costs, charges and expenses which, under generally accepted accounting
principles and practices, would be regarded as maintenance and operating
expenses, (ii) the cost of any capital improvements made to the Building or
the
common areas by Landlord after the Commencement Date that are intended to reduce
other Expenses, or made to the Building or the common areas by Landlord after
the date of this Lease that are required under any governmental law or
regulation which was not applicable to the Building and the common areas as
of
the Commencement Date, such cost to be amortized over such reasonable period
as
Landlord shall determine, together with interest on the unamortized balance
at
the rate set forth in Section 14.4 hereof, and (iii) Taxes (as defined in
Section 14.1(b) hereof).
Expenses
shall not
include
depreciation on the Building or the common areas other than as set forth above;
costs of services or repairs, replacements and maintenance which are paid for
by
proceeds of insurance, by other tenants (in a manner other than as provided
in
this Article 14), or third parties; tenant improvements; real estate brokerage
commissions; interest; and capital items other than replacements and those
referred to in clause (ii) above. Those Expenses for a given calendar year
which
vary with the occupancy of the Building, shall be adjusted in accordance with
Landlord's reasonable estimate of what Expenses for such calendar year would
have been had the total Building been occupied and had the total Building been
furnished all services for the entire such calendar year. In the event any
common areas service more than one building in the Galleria
Officentre complex,
the Expenses relating to such common areas shall be allocated among the
buildings served thereby in a fair and equitable manner.
(b)
The
term
"Taxes" shall mean the amount of all ad valorem real property taxes and
assessments, special or otherwise, levied upon, or with respect to, the Building
and the common areas, or the rent and additional charges payable hereunder,
imposed by any taxing authority having jurisdiction. Taxes shall also include
all taxes, levies and charges which may be assessed, levied or imposed in
replacement of, or in addition to, all or any part of ad valorem real property
taxes as revenue sources and which in whole or in part are measured or
calculated by or based upon the Building, the freehold and/or leasehold estate
of Landlord or Tenant, or the rent and other charges payable hereunder. Taxes
shall include any expenses incurred by Landlord in determining or attempting
to
obtain a reduction of Taxes. Taxes shall be allocated to the calendar year
in
which same first become due.
(c)
The
term
"Base Expenses" shall mean Expenses incurred for the 2000
calendar
year.
(d)
The
term
"Additional Expenses" for any given calendar year shall mean the amount, if
any,
by which the Expenses incurred by Landlord in such calendar year shall exceed
Base Expenses.
(e)
The
term
"Tenant's Share" shall mean the percentage arrived at by dividing the total
square footage of rentable floor area in the demised premises by the total
square footage of rentable floor area in the Building (including the demised
premises). In the event the Building shall be increased or decreased during
the
term hereof, Tenant's Share shall be adjusted accordingly.
14.2
Tenant shall pay to Landlord, as additional rental, Tenant's Share of Additional
Expenses in the manner and at the times herein provided.
Prior
to
the beginning of each calendar year, or as soon thereafter as practicable,
Landlord shall give Tenant notice of Landlord's estimate of Tenant's Share
of
Additional Expenses for the ensuing calendar year. On or before the first day
of
each month during the ensuing calendar year, together with the payments of
Basic
Rental, Tenant shall pay to Landlord one-twelfth (1/12th) of such estimated
amount, provided that until such notice is given, Tenant shall continue to
pay
the amount currently payable pursuant hereto. Landlord, at its option, may
elect
to request quarterly or semi-annual estimated payments by Tenant in lieu of
monthly estimated payments.
Within
one hundred eighty (180) days after the close of each calendar year, or as
soon
after such one hundred eighty (180) day period as practicable, Landlord shall
deliver to Tenant a statement prepared by Landlord of Tenant's Share of
Additional Expenses. If on the basis of such statement, Tenant owes an amount
which is less than the estimated payments for such calendar year previously
made
by Tenant, Landlord shall credit such excess amount against the next payment(s)
due from Tenant to Landlord of Additional Expenses. If on the basis of such
statement, Tenant owes an amount which is more than the estimated payments
for
such calendar year with respect to Additional Expenses previously made by
Tenant, Tenant shall pay the deficiency to Landlord within fifteen (15) days
after delivery of such statement.
If
the
Commencement Date shall be other than the first day of a calendar year or the
Expiration Date shall be other than the last day of a calendar year, Tenant's
Share of Additional Expenses which is applicable to the calendar year in which
such commencement or termination shall occur shall be prorated on the basis
of
the number of calendar days within such year as are within the term
hereof.
14.3
In
addition to the monthly rental and other charges to be paid by Tenant hereunder,
Tenant shall pay (or reimburse Landlord if paid by Landlord) for any and all
taxes (other than net income taxes and taxes included within Taxes) whether
or
not now customary or within the contemplation of the parties hereto upon,
measured by or reasonably attributable to the cost or value of Tenant's
equipment, furniture, fixtures and other personal property located in the
demised premises or by the cost or value of any leasehold improvements made
in
or to the demised premises by or for Tenant (other than the Tenant Improvements)
regardless of whether title to such improvements shall be in Tenant or Landlord.
Tenant shall have the right to contest the amount of any taxes assessed upon
the
equipment, furniture, fixtures and personal property in the demised premises,
provided Tenant first pays the amount assessed in a timely manner.
14.4
Except as above provided, all rental and additional rental shall be paid to
Landlord without notice or demand and without deduction or offset, in lawful
money of the United States of America at Landlord's address for notices
hereunder or to such other person or at such other place as Landlord may from
time to time designate in writing. All amounts payable by Tenant to Landlord
hereunder, if not paid within ten (10) days following the date payment is due,
shall bear interest from the due date until paid at a rate equal to two percent
(2%) in excess of the then current "prime rate" of Michigan National Bank (or
one (1) of the other five (5) largest banks in the metropolitan Detroit area),
but not in excess of the highest rate permitted by applicable law. If no such
prime rate is announced by Michigan National Bank (or any of such five (5)
largest banks), the prime rate shall be deemed to be twelve percent (12%).
Any
and all money and charges required to be paid by Tenant pursuant to the terms
of
this Lease shall be paid as additional rental whether or not the same may be
designated "additional rental" herein.
15.
Quiet
Enjoyment.
16.
Subordination.
16.1
This
Lease is and shall be subject and subordinate, at all times, to the lien of
any
mortgage or mortgages which may now or hereafter be placed upon the demised
premises, the Building or the land, and to all advances made or hereafter to
be
made upon the security thereof and to the interest thereon, and to any
agreements at any time made modifying, supplementing, extending or replacing
any
such mortgages. At the option of a purchaser at a foreclosure sale, this Lease
shall remain in full force and effect after, and not be extinguished by, the
foreclosure of any such mortgage, and Tenant shall attorn to the purchaser
at
the foreclosure sale under all of the terms, conditions and covenants of this
Lease for the balance of the term hereof, provided if this Lease is deemed
terminated and extinguished by such a foreclosure, at the option of a purchaser
at a foreclosure sale, Tenant shall enter into a new lease with the purchaser
at
the foreclosure sale upon the same terms and conditions as this Lease, except
that the term of the new lease shall be equal to what would have been the
balance of the term of this Lease had it not been terminated. Notwithstanding
the foregoing, at the request of the holder of any of the aforesaid mortgage
or
mortgages, this Lease may be made prior and superior to such mortgage or
mortgages.
17.
Nonliability
of Landlord.
17.1
Landlord shall not be responsible or liable to Tenant for any loss or damage
that may be occasioned by or through the acts or omissions of persons occupying
adjoining premises or any part of the area adjacent to, or connected with,
the
demised premises or any part of the Building, or for any loss or damage
resulting to Tenant or its property from theft or a failure of the security
systems in the Building, or from burst, stopped or leaking water, gas, sewer
or
steam pipes, or for any damage or loss of property within the demised premises
from any cause whatsoever; and no such occurrence shall be deemed to be an
actual or constructive eviction from the demised premises or result in an
abatement of rental unless caused by the gross negligence or willful act of
Landlord, its agents or employees.
17.2
In
the event of any sale or transfer (including any transfer by operation of law)
of the demised premises, Landlord (and any subsequent owner of the demised
premises making such a transfer) shall be relieved from any and all obligations
and liabilities under this Lease except such obligations and liabilities as
shall have arisen during Landlord's (or such subsequent owner's) respective
period of ownership, provided that the transferee assumes in writing all of
the
obligations of Landlord under this Lease which arise subsequent to the transfer.
Tenant shall attorn to such new owner.
18.
Waiver.
19.
Bankruptcy.
19.1
In
the event (a) Tenant shall make a general assignment for the benefit of
creditors, or shall admit in writing its inability to pay its debts as they
become due or shall file a petition in bankruptcy, or shall be adjudicated
as
insolvent or shall file a petition in any proceeding seeking any reorganization,
arrangements, composition, readjustment, liquidation, dissolution or similar
relief under any present or future statute, law or regulation, or shall file
an
answer admitting or fail timely to contest or acquiesce in the appointment
of
any trustee, receiver or liquidator of Tenant or any material part of its
properties; (b) within ninety (90) days after the commencement of any proceeding
against Tenant seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution or similar relief under any present
or
future statute, law or regulation, such proceeding shall not have been
dismissed, or within ninety (90) days after the appointment, without the consent
or acquiescence of Tenant, of any trustee, receiver or liquidator of Tenant
or
of any material part of its properties, such appointment shall not have been
vacated; or (c) this Lease or any estate of Tenant hereunder shall be levied
upon under any attachment or execution and such attachment or execution is
not
vacated within ten (10) days, then, and in any of such events, Landlord may
terminate this Lease by written notice to Tenant; provided, however, if the
order of court creating any of such disabilities shall not be final by reason
of
the pendency of such proceedings, or appeal from such order, or if the petition
shall have been withdrawn or the proceedings dismissed within ninety (90) days
after the filing of the petition, then Landlord shall not have the right to
terminate this Lease so long as Tenant performs its obligations
hereunder.
20.
Landlord's
Remedies.
20.1
In
the event Tenant shall fail to pay the rent or any other obligations involving
the payment of money reserved herein when due, Landlord shall give Tenant
written notice of such default and if Tenant shall fail to cure such default
within ten (10) days after receipt of such notice, Landlord shall, in addition
to its other remedies provided herein or at law or in equity, have the remedies
set forth in Section 20.3 below.
20.2
If
Tenant shall be in default in performing any of the terms of this Lease other
than the payment of rent or any other obligation involving the payment of money,
Landlord shall give Tenant written notice of such default, and if Tenant shall
fail to cure such default within thirty (30) days after the receipt of such
notice, or if the default is of such a character as to require more than thirty
(30) days to cure, then if Tenant shall fail within said thirty (30) day period
to commence or thereafter proceed diligently to cure such default within a
reasonable period of time (not to exceed ninety (90) days after the receipt
of
such notice), then, and in either of such events, Landlord may (at its option
and in addition to its other remedies) cure such default for the account of
Tenant and any sum so expended by Landlord shall be additional rent for all
purposes hereunder, including Section 20.1 above, and shall be paid by Tenant
with the next monthly installment of rent.
20.3
If any rent or any other obligation involving the payment of money shall be
due
and unpaid or Tenant shall be in default upon any of the other terms of this
Lease, and such default has not been cured after notice and within the time
periods provided in Sections 20.1 and 20.2 above, or if the demised premises
are
abandoned or vacated, then Landlord, in addition to its other remedies, shall
have the immediate right to terminate this Lease and/or recover possession
of
the demised premises. Should Landlord elect to re-enter or take possession
pursuant to legal proceedings or any notice provided for by the law, Landlord
may relet the premises or any part thereof on such terms and conditions as
Landlord shall in its sole discretion deem advisable. The avails of such
reletting shall be applied first, to the payment of any indebtedness of Tenant
to Landlord other than rent due hereunder; second, to the payment of any
reasonable costs of such reletting, including the cost of any reasonable
alterations and repairs to the demised premises; third, to the payment of rent
due and unpaid hereunder; and the residue, if any, shall be held by Landlord
and
applied in payment of future rent as the same may become due and payable
hereunder. Should the avails of such reletting during any month be less than
the
monthly rent reserved hereunder, then Tenant shall during each such month pay
such deficiency to Landlord. The obligations of Tenant shall survive any
termination of this Lease pursuant to this Section 20.3.
20.4 All
rights and remedies of Landlord hereunder shall be cumulative and none shall
be
exclusive of any other rights and remedies allowed by law.
20.5
If
as a result of any breach or default in the performance of any of the provisions
of this Lease, either party uses the services of an attorney in order to secure
compliance with such provisions or recover damages therefor, or to terminate
this Lease or evict Tenant from the demised premises, the prevailing party
shall
be reimbursed by the other party upon demand for any and all attorneys' fees
and
expenses so incurred by the prevailing party.
21.
Holding
Over.
22.
Entire
Agreement.
23.
Notices.
All
notices, consents, requests, demands, designations or other communications
which
may or are required to be given by either party to the other hereunder shall
be
in writing and shall be deemed to have been duly given when personally delivered
or deposited in the United States mail, certified or registered, return receipt
requested, postage prepaid, or sent by U.S. Express Mail or any nationally
recognized overnight carrier with a signed receipt obtained upon delivery,
and
addressed as follows: (a) to Tenant at the address set forth in Section 1(d)
hereof with
a copy to Tenant at 171 Sully’s Trail, Suite 202, Pittsford, New York,
Attention: Legal Department,
or to
such other place as Tenant may from time to time designate in a notice to
Landlord, or delivered to Tenant at the demised premises, (b) to Landlord at
the
address set forth in Section 1(b) hereof, or to such other place as Landlord
may
from time to time designate in a notice to Tenant. Tenant hereby appoints as
its
agent to receive the service of all dispossessory or distraint proceedings
and
notices thereunder the person in charge of or occupying the demised premises
at
the time, and if no person shall be in charge of or occupying the demised
premises at the time, then such service may be made by attaching the same to
the
main entrance of the demised premises.
24.
Inability
to Perform.
25.
Security
Deposit.
26.
Liens.
27.
Entry
by Landlord.
27.1
Landlord and its designees may enter the demised premises at reasonable hours
and upon reasonable notice (except in the event of an emergency or any entry
to
perform janitorial services requested by Tenant) to (a) inspect the same, (b)
exhibit the same to prospective purchasers, lenders or tenants, (c) determine
whether Tenant is complying with all of its obligations hereunder, (d) supply
janitorial service and any other services to be provided by Landlord to Tenant
hereunder, (e) post notices of nonresponsibility, and (f) make repairs to the
demised premises, to any adjoining space or to any other portion of the
Building, provided that all such work shall be done as promptly as reasonably
possible. Tenant hereby waives any claim for damages for any injury or
inconvenience to, or interference with, Tenant's business, any loss of occupancy
or quiet enjoyment of the demised premises or any other loss occasioned by
such
entry.
28.
Estoppel
Certificate.
29.
Option
to Renew.
Provided
that Tenant is not in default under any of the terms and conditions of this
Lease, then Tenant shall have the right to extend the term of this Lease for
two
(2)
additional terms of five
(5) years each,
by
giving Landlord written notice of its intention to exercise such option right
not later than six (6) months prior to the expiration of the then current term.
In the event Tenant shall so exercise any such option to extend the term, then
the term of this Lease shall be extended for an additional five
(5) years
upon the
same terms and conditions stated herein, except that the Basic Rental payable
with respect to such option period pursuant to Article 4 hereof shall be the
prevailing rent in effect at the time such option is exercised for a term
beginning and ending at the same time as such renewal term for comparable space
in the Galleria
Officentre
complex,
provided
that in no event shall the annual Net Rental (as hereinafter defined) payable
for the renewal term be less than the Net Rental payable for the last year
of
the preceding term. The
term
"Net Rental" for a year shall mean the difference between the Basic Rental
payable for such year and the total dollar equivalent of Base Expenses
applicable for such year (assuming Tenant pays separately for certain services
as provided in Article 6 hereof).
30.
Emergency
Generator.
Tenant
shall have the right, at its sole cost and expense, to install an emergency
generator (the "Mpower Generator") in a location designated by Landlord, subject
to the following:
a.
Tenant
shall first obtain such governmental approvals, authorizations and permits
as
are required to install and operate the Mpower Generator.
b.
All
plans
and specifications for the installation of the Mpower Generator and its
connection to the demised premises must be approved, in advance, by Landlord.
The installation of the Mpower Generator shall be performed in a manner approved
by Landlord.
c.
Tenant
shall pay the entire cost of installing the Mpower Generator, including any
modifications to the generator area required to accommodate and screen the
Mpower Generator.
d.
Tenant
shall maintain the Mpower Generator and any related equipment, at its sole
cost
and expense, in good order and condition and will repair any damage to the
Building and/or any other equipment caused by the Mpower Generator and/or the
installation thereof. Landlord shall not be liable to Tenant or to any other
person for any loss or damage to the Mpower Generator regardless of cause,
other
than the negligence or acts of Landlord, its agents or employees.
e.
Tenant
shall have the right to install a diesel generator, provided (i) any fuel tank
shall be located above ground and within the frame of the generator, (ii) Tenant
shall install such spill protection and other tank monitoring devices as shall
be required by governmental codes and regulations, (iii) Tenant shall provide
Landlord with copies of all warranties and evidence of any testing required
by
law, and (iv) Tenant shall indemnify Landlord from and against any and all
costs
and liability arising from a leak from such fuel tank, including, without
limitations, any clean-up costs.
31.
Miscellaneous.
31.1
The
words "Landlord" and "Tenant" as used herein shall include the plural as well
as
the singular. If there is more than one Tenant, the obligations hereunder
imposed upon Tenant shall be joint and several.
31.2
Submission of this instrument for examination or signature by Tenant does not
constitute a reservation of, or option for, lease, and it is not effective
as a
lease or otherwise until execution and delivery by both Landlord and
Tenant.
31.3
The
agreements, conditions and provisions herein contained shall, subject to the
provisions of Articles 10 and 17 hereof, apply to and bind the heirs, executors,
administrators, successors and assigns of the parties hereto.
31.4
Tenant shall not, without the consent of Landlord, use the name of the Building
for any purpose other than as the address of the business to be conducted by
Tenant in the demised premises. Landlord reserves the right to select the name
of the Building and to make such changes of name as it deems appropriate from
time to time.
31.5
Tenant warrants and represents that it has had no dealings with any real estate
broker or agent in connection with the negotiation of this Lease, and it knows
of no real estate broker or agent who is entitled to a commission in connection
with this Lease, other than CB
Xxxxxxx Xxxxx.
Landlord and Tenant each agree to indemnify and hold the other harmless of
and
from any and all loss, cost, damage or expense (including, without limitation,
all counsel fees and disbursements) by reason of any claim of, or liability
to,
any other broker claiming through it and arising out of, or in connection with,
the execution and delivery of this Lease.
31.6
If
any provisions of this Lease shall be determined to be illegal or unenforceable,
such determination shall not affect any other provisions of this Lease and
all
such other provisions shall remain in full force and effect.
31.7
This
Lease shall be governed by, and construed in accordance with, the laws of the
State of Michigan.
IN
WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals
as
of the day and year first above written.
WITNESSES: FCN
ASSOCIATES, L.L.C.
By
Xxxxx
Management Co., Inc.
Managing
Agent
Xxxxxxx
Xxxxx By:
/s/ Xxxxxxx Xxxxx
Xxxxxxx
Xxxxx, President
(Landlord)
MGC
COMMUNICATIONS, INC. d/b/a MPOWER
COMMUNICATIONS
CORP.
By:/s/________________________
Title:
SVP - Engineering Operations
(Tenant)
EXHIBIT
"A"
Diagram
EXHIBIT
"B"
RULES
AND REGULATIONS
A. Wherever
the word "Tenant" or "Landlord" appears herein, it is understood and agreed
that
it shall mean their agents, associates, employees, customers, visitors and
invitees.
B. The
exterior and interior common areas of the Building, including all sidewalks,
entrances, corridors, elevators, stairways and the atrium, shall not be
obstructed or used for any purpose other than access to and from the demised
premises. Parking areas shall be used only for transient parking by tenants,
their employees and visitors and shall not be used for storage of vehicles,
for
parking vehicles during non-business hours or for parking large commercial
or
recreational vehicles. Tenant shall comply with all other restrictions on the
use of certain parking spaces, including spaces reserved for designated parties
or for short term parking. Landlord shall not be responsible or liable for
any
damage to, or theft of, vehicles parked in the parking area.
C. Landlord
has the right to control access to the Building and to refuse admittance during
non-business hours determined by Landlord to any person or persons without
satisfactory identification or a pass issued by Landlord. Tenant shall comply
with all regulations promulgated by Landlord regarding access to the Building
during non-business hours, including, without limitation, restrictions on use
of
certain entrances, registration and identification procedures, and alarm
procedures.
D. Landlord's
employees will not perform any work outside of their regular duties unless
specifically authorized to do so by Landlord.
E. No
person
shall disturb other occupants of the Building or other adjoining buildings
by
making loud or disturbing noises or by behaving in any other manner which would
disturb such other occupants. Tenant shall not cause or permit unusual or
objectionable odors to be produced upon or permeate from the demised premises,
including any equipment emitting noxious fumes.
F. Soliciting,
peddling and canvassing is prohibited in the Building and Tenant shall cooperate
to prevent the same. No vending machine shall be operated in the Building
without the prior written consent of Landlord.
G. All
deliveries and removals of furniture, equipment or other heavy or bulky items
must take place after notification to Landlord, during such hours and in such
a
manner as shall be determined by Landlord. Tenant shall be responsible for
all
damage or injury resulting from the delivery or removal of all such articles
into or out of the Building or the demised premises. Tenant must arrange for
the
removal of all cartons, large boxes and containers from the Building and such
items cannot be deposited in the dumpsters at the Building. No load shall be
placed on the floor of the demised premises or in elevators in excess of the
limits which shall be established by Landlord. Tenant's equipment shall be
placed and operated only in locations approved by Landlord.
H. Nothing
shall be attached to the interior or exterior walls of the Building or the
demised premises (other
than normal items weighing less than 20 pounds each)
without
the prior written consent of Landlord, which
consent will not be unreasonably withheld.
Building standard blinds shall be used in all windows and no other window
treatments or objects shall be attached to, hung in or used in connection with
any window or door of the demised premises without the prior written consent
of
Landlord. No article shall be placed on any window sill.
I. No
sign,
picture, lettering, notice or advertisement of any kind shall be painted or
displayed on or from the windows, doors, roof, or outside walls of the Building.
All of Tenant's interior sign painting or lettering shall be done in a manner
approved by Landlord, and the cost thereof shall be paid by Tenant. In the
event
of a violation of the foregoing by any Tenant, Landlord may remove same without
any liability and may charge the expense incurred for such removal to such
Tenant. Landlord will provide building standard tenant identification in the
building directories.
J. No
additional locks shall be placed on any door in the Building without Landlord's
prior written consent. All changes made to the locks on doors in the Building
must be approved by Landlord and performed by the locksmith designated by
Landlord. A reasonable number of keys will be furnished by Landlord and Tenant
shall not make or permit any duplicate keys to be made.
K. Tenant
shall not install or operate any steam or gas engine or boiler or carry on
any
mechanical business in the demised premises, or use oil, burning fluids,
camphene or gasoline for heating or lighting, or for any other purpose
(other
than the diesel fuel used to operate Tenant’s generator outside of the
Building).
No
article deemed extra hazardous on account of fire or other dangerous properties,
or any explosive, shall be brought into the demised premises or the Building.
Portable electric space heaters are prohibited.
L. No
bicycles, vehicles or animals of any kind shall be brought into or kept in
or
about the Building or the demised premises.
M. No
marking, painting, drilling, boring, wiring, cutting or defacing of the Building
or the demised premises shall be permitted without the prior written consent
of
Landlord. Plastic protective floor mats shall be maintained over all carpeted
areas under desk chairs with casters. Any carpeting cemented down shall be
installed with a releasable adhesive.
N. The
electrical system and lighting fixtures in the Building and the demised premises
shall not be altered or disturbed without Landlord's prior written consent
specifying the manner in which it may be done and by persons authorized by
Landlord. Extension cords shall not be used in the demised premises without
the
prior written consent of Landlord and shall, at a minimum, be 14-gauge, 3-wire,
grounded, UL approved with molded ends. Hot plates (cooking) are prohibited
and
only approved electric coffee percolators and microwave ovens shall be
permitted. Tenant shall not place any mechanical, electrical or telephone
equipment in any area outside of the demised premises without the prior written
consent of Landlord.
O. The
toilets and other plumbing fixtures shall not be used for any purpose other
than
those for which they are designed. No sweepings, rubbish or other similar
substances shall be deposited therein. Any repair or extra cleaning costs
resulting from any misuse of the plumbing fixtures or the restrooms shall be
paid by the Tenant who shall have caused the same. No person shall waste water
by interfering or tampering with the faucets or otherwise. Toilet tissue and
paper towels may not be removed from the restrooms.
P. Additional
security or janitorial service required by a Tenant will be contracted through
Landlord using the same company that the Landlord has under contract to provide
such service. Tenant shall not employ or contract with any person to do cleaning
or perform janitorial services in the demised premises without the prior written
consent of Landlord.
Q. Tenant
assumes responsibility for protecting the demised premises from theft, robbery
and pilferage. Tenant shall be responsible for locking all doors to the demised
premises.
R. No
area
outside of the demised premises shall be used for storage at any time. All
garbage shall remain within the demised premises until removal by janitorial
personnel. Tenant shall pay the cost of removing trash from the demised premises
in excess of that generated by normal office operations or at times other than
the normally scheduled cleaning of the demised premises.
S. Smoking
is prohibited in all common areas of the Building, including, without
limitation, lobbies, corridors, elevators, restrooms, stairwells and the
atrium.
CONSTRUCTION
Landlord
and Tenant shall comply with the following procedures regarding the Tenant
Improvements (which term shall be understood herein to mean any and all
construction and other work required to remodel the demised premises from their
“as-is” condition to be ready for occupancy by Tenant, excluding
any
furniture, data/telephone cable, fixtures, equipment or personal property of
Tenant):
(a) On
or
before March
28, 2000,
Tenant
shall, at its sole cost and expense, prepare complete architectural and
engineering working plans and specifications (sealed by an architect and
engineer licensed in the State of Michigan) for the construction of the Tenant
Improvements (the "Plans and Specifications").
(b) Within
three
(3) business days
after
receiving the Plans and Specifications, Landlord shall notify Tenant of its
approval or disapproval thereof, in the latter event specifying the reasons
therefor. Landlord agrees not to unreasonably withhold its approval of such
Plans and Specifications. In the event Landlord shall disapprove the Plans
and
Specifications, Landlord and Tenant shall meet to resolve same, and following
such meeting, Tenant shall cause such Plans and Specifications to be
appropriately modified to accommodate the reasonable objections of Landlord
discussed at such meeting.
(c) Within
five
(5) business days
after
receiving the final Design Plans and Specifications, Landlord shall cause its
designated general contractor to submit to Tenant a quotation for the cost
of
constructing the Tenant Improvements in accordance with the Plans and
Specifications, which quotation shall be reasonably itemized and shall include
(i) any and all costs incurred to perform the Tenant Improvements, including,
without limitation, the cost of any governmental permit and plan review fees,
plus
(ii) a
fee of twelve
percent (12%) of
such
total cost of the work for the general contractor's overhead, supervision and
insurance. Tenant shall have the right to reasonably approve all subcontractors
and subcontractor bids and to require Landlord to obtain competitive bids for
any subcontractor work from qualified subcontractors reasonably approved by
Landlord. It is understood that Tenant shall have the right to use the existing
improvements in the demised premises in their as-is condition free of
charge.
(d) Within
two
(2) business days
after
receiving Landlord's quotation, Tenant shall notify Landlord of its approval
thereof or suggest modifications to the Plans and Specifications to reduce
the
cost of constructing the Tenant Improvements. The cost of any subsequent change
orders to the original contract will be computed based upon the cost of the
work
plus twelve
percent (12%) of
such
cost as the general contractor's fee, provided no change orders shall be issued
without the prior written approval of Tenant. The total amount of the approved
quotation, as increased by subsequent change orders, will be referred to herein
as the "Tenant Improvement Cost". Upon receiving Tenant's approval of Landlord's
quotation, Landlord shall cause its designated general contractor to commence
construction of the Tenant Improvements and perform such work in a good and
workmanlike manner.
(e) The
Tenant Improvement Allowance set forth in Section 1(m) hereof, shall be paid
by
Landlord to the general contractor and subcontractors performing the work.
Tenant shall pay the amount, if any, by which the Tenant Improvement Cost shall
exceed the Tenant Improvement Allowance (as defined in Section 1(m) hereof),
such excess to be paid within thirty (30) days following receipt of invoices
to
be issued upon completion of phases of the Tenant Improvements (such
invoices to Tenant to be accompanied by copies of invoices from the
subcontractors together with appropriate lien waivers).