SUBLEASE AGREEMENT BETWEEN DATA CENTER 101, LLC (SUBLANDLORD) AND IBEAM SOLUTIONS LLC (SUBTENANT)
BETWEEN
DATA
CENTER 101, LLC
(SUBLANDLORD)
AND
IBEAM
SOLUTIONS LLC
(SUBTENANT)
TABLE OF
CONTENTS
|
§
1.
|
SUBLEASE
OF LEASED PREMISES
|
1
|
|
§
2.
|
TERM;
OPTION TERMS
|
2
|
|
§
3.
|
BASE
RENT
|
2
|
|
§
4.
|
ADDITIONAL
RENT, PERCENTAGE RENT & SECURITY DEPOSIT
|
4
|
|
§
5.
|
INTENTIONALLY
OMITTED.
|
7
|
|
§
6.
|
INSURANCE
|
7
|
|
§
7.
|
QUIET
ENJOYMENT
|
8
|
|
§
8.
|
USE
OF LEASED PREMISES; COMPLIANCE WITH LAWS
|
8
|
|
§
9.
|
BUILD
OUT OF SUBTENANT IMPROVEMENTS; PUNCHLIST ITEMS
|
9
|
|
§
10.
|
FORCE
MAJEURE
|
10
|
|
§
11.
|
MAINTENANCE
AND REPAIRS
|
11
|
|
§
12.
|
XXXXXXXXXXX
|
00
|
|
§
00.
|
DAMAGE
OR DESTRUCTION TO LEASED PREMISES
|
12
|
|
§
14.
|
XXXXXXXXXXXX
|
00
|
|
§
00.
|
SERVICES
PROVIDED BY XXXXXXXXXXX
|
00
|
|
§
00.
|
SUBORDINATION
OF SUBLEASE
|
16
|
|
§
17.
|
ESTOPPEL
CERTIFICATES
|
16
|
|
§
18.
|
XXXXXXXXXXXXXXX
|
00
|
|
§
00.
|
LIMITATION
OF LIABILITY
|
18
|
|
§
20.
|
PERSONAL
PROPERTY
|
18
|
|
§
21.
|
LIABILITY
RELATING TO SUBTENANT’S OPERATIONS
|
18
|
|
§
22.
|
EVENTS
OF DEFAULT/REMEDIES UPON DEFAULT
|
18
|
|
§
23.
|
RIGHT
TO CURE DEFAULTS
|
20
|
|
§
24.
|
CUMULATIVE
RIGHTS AND XXXXXXXX
|
00
|
|
§
00.
|
HOLDING
OVER
|
21
|
|
§
26.
|
SUBLETTING
& ASSIGNMENT
|
21
|
|
§
27.
|
ACCESS
AND OTHER RIGHTS OF SUBLANDLORD
|
22
|
|
§
28.
|
FINANCIAL
STATEMENTS
|
22
|
|
§
29.
|
HAZARDOUS
MATERIALS
|
23
|
|
§
30.
|
SIGNAGE
|
25
|
|
§
31.
|
NOTICES
|
25
|
|
§
32.
|
SURVIVAL
OF OBLIGATIONS
|
26
|
|
§
33.
|
MEMORANDUM
OF XXXXXXXX
|
00
|
|
§
00.
|
XXX-XXXXXX
|
00
|
|
§
00.
|
NO
THIRD PARTY BENEFIT
|
26
|
|
§
36.
|
SEVERABILITY
|
26
|
|
§
37.
|
GOVERNING
LAW; XXXXX
|
00
|
|
§
00.
|
XXXXXXXX
|
00
|
|
§
00.
|
COMPLETE
AGREEMENT
|
27
|
|
§
40.
|
COUNTERPARTS
|
27
|
|
§
41.
|
GENDERS
AND NUMBERS
|
27
|
|
§
42.
|
TIME
OF THE XXXXXXX
|
00
|
|
§
00.
|
XXXXXXXX
|
00
|
|
§
00.
|
SUCCESSORS
IN XXXXXXXX
|
00
|
|
§
00.
|
RIGHT
OF FIRST REFUSAL
|
28
|
|
§
46.
|
SUBLANDLORD’S
XXXXXXXXXX
|
00
|
|
§
00.
|
ASSIGNMENT
AND ASSUMPTION OF SERVICE CONTRACTS
|
29
|
|
LIST OF
EXHIBITS
|
||
| EXHIBIT A | DRAWING OF LEASED PREMISES | |
| EXHIBIT B | DESCRIPTION OF REAL PROPERTY | |
| EXHIBIT C | RULES AND REGULATIONS | |
| EXHIBIT D | COMPLETION OF SUBTENANT IMPROVEMENT PLANS | |
| EXHIBIT E | INTENTIONALLY OMITTED | |
| EXHIBIT F | ASSIGNMENT AND ASSUMPTION OF SERVICE CONTRACTS | |
| EXHIBIT G | THE LEASE | |
| EXHIBIT H | LANDLORD’S ACKNOWLEDGEMENT OF AND CONSENT TO SUBLEASE | |
This
sublease agreement (“Sublease”) is made effective February 10, 2009 (the
“Effective Date”) between Data
Center 101, LLC, a limited liability company organized under the laws of
the State of Ohio, and having an office and place of business located at 0000
Xxxx Xxxxx Xxxxxx, Xxxxxxxx, Xxxx 00000-0000 (“Sublandlord”), and iBeam Solutions LLC a limited
liability company organized under the laws of the State of Ohio, and having an
office and place of business located at 00 Xxxxx Xxxx Xxxxxx, Xxxxx Xxxxxxxxxx,
XX 00000 (“Subtenant”). Sublandlord and Subtenant are sometimes
individually referred to as “Party” or collectively referred to as
“Parties”.
BACKGROUND
INFORMATION
Sublandlord
is the current tenant of approximately 12,500 square feet of space comprising
the entire third floor (the “Premises”) of the office building located at 000
Xxxx Xxxx Xxxxxx, Xxxxxxxx, Xxxx 00000 (the “Building”). The Building is located
upon the real property described in Exhibit B (the “Real Property”). In
addition, the term Premises shall include the non-exclusive use of and access to
the lobby, common restrooms, hallways, elevators, stairways, courtyards,
walkways, and other common areas (the “Common Areas”) within or immediately
outside of the Building.
Sublandlord
leased the Premises from Landlord pursuant to that certain Lease Agreement dated
August 23, 2007 (the “Lease”), which agreement governs all of Sublandlord’s
rights, duties and obligations relative to the Real Property, the Building and
the Premises.
Sublandlord
desires to sublease approximately 5,000 square feet located on the third (3rd) floor
of the Building representing a portion of the Premises (the “Leased Premises”)
to Subtenant on the terms and conditions set forth herein. A physical
depiction of the Leased Premises is attached hereto as Exhibit A.
In
addition to the sub-leasing of the Leased Premises, Sublandlord desires to
assign to Subtenant, and Subtenant desires to assume from Sublandlord, certain
data hosting service contracts associated with the Leased Premises (the “Service
Contracts”) pursuant to that certain Assignment and Assumption of Service
Contracts of even date herewith, a copy of which is attached as Exhibit
F.
AGREEMENT
Now,
therefore, in consideration of the mutual covenants contained herein and
specifically incorporating the Background Information the Parties hereby agree
as follows:
|
§1.
|
SUBLEASE
OF LEASED PREMISES
|
On the
terms and subject to the conditions described in this Sublease, Sublandlord
hereby subleases to Subtenant, and Subtenant hereby subleases from Sublandlord,
the Leased Premises.
This
Sublease and Subtenant’s rights hereunder are subject to (a) the lien of real
estate taxes and installments of assessments; (b) building and zoning laws,
ordinances and regulations; (c) legal highways; (d) any first mortgage on the
Real Property granted by Landlord and any other mortgages heretofore or
hereafter granted by Landlord as contemplated in §16 below; (e) covenants,
conditions and restrictions of record and (f) the terms and conditions of the
Lease between Landlord and Sublandlord granting Sublandlord its rights to use
and sublease the Leased Premises.
Subtenant
acknowledges that Sublandlord has provided and/or Subtenant has received and
reviewed a copy of the Lease (together with all amendments, modifications,
supplements and material correspondence related thereto). This
Sublease, with respect to the Building, Real Property and Leased Premises, is
subject and subordinate in all respects to the Lease. Each
Sublandlord and Subtenant agree that it shall not take any action or fail to
take any action in connection with the Leased Premises which is a violation of
or default under any of the provisions of the Lease. Subtenant hereby
assumes and shall fully perform and discharge, with respect to the Leased
Premises, all the obligations of Sublandlord as “Tenant” under the Lease during
the Term (as defined below) and shall abide by and adhere to all restrictions
contained in, and all other terms, covenants and conditions of the Lease, and,
except as otherwise provided herein, Subtenant acknowledges that Sublandlord
shall have no duty to take any action to comply with the obligations of
Sublandlord as “Tenant” under the Lease, relative to the Leased Premises,
arising during the Term (as hereinafter defined).
|
§2.
|
TERM;
OPTION TERMS
|
A. Term. The
term of this Sublease (the “Term”) shall be for a period of ten years commencing
on the Effective Date and expiring on January 31, 2018 (the “Expiration
Date”). In the event the Effective Date is not the first day of a
calendar month, the first year of this Sublease and thus the Term shall be
extended for the number of days left in that first partial month.
B. Option
Terms. Provided Subtenant is not in default, Sublandlord hereby
grants to Subtenant the option to extend the Term of this Sublease for Two (2)
option term(s) of Five (5) years (hereinafter the "Option
Term"). Each succeeding Option Term shall commence at the expiration
of the Original Term or prior Option Term, whichever the case may be, upon the
same terms and conditions as contained in this Sublease except for the amount of
Base Rent (defined below) which shall increase by three percent (3%) per
calendar year over the previous calendar year during each Option
Term. Each Option Term shall be exercisable by Subtenant upon giving
the Landlord and Sublandlord written notice at least one hundred eighty (180)
days prior to the expiration of the Term or first Option Term, as
applicable.
|
§3.
|
BASE
RENT
|
During
the Term, Subtenant shall pay to Sublandlord base rent in United States dollars
(the “Base Rent”) in the following amounts as provided herein:
|
Annual
|
Monthly
|
||||
|
Year
1
|
$ | 360,000.00 | |||
|
Month
1-3
|
- | $ | 0.00 | ||
|
Month
4-12
|
- | $ | 40,000.00 | ||
|
Year
2
|
$ | 660,000.00 | $ | 55,000.00 | |
|
Year
3
|
$ | 756,300.00 | $ | 63,025.00 | |
|
Year
4
|
$ | 778,989.00 | $ | 64,915.75 | |
|
Year
5
|
$ | 802,358.67 | $ | 66,863.22 | |
|
Year
6
|
$ | 826,429.43 | $ | 68,869.11 | |
|
Year
7
|
$ | 851,222.31 | $ | 70,935.19 | |
|
Year
8
|
$ | 876,758.98 | $ | 73,063.24 | |
|
Year
9
|
$ | 903,061.75 | $ | 75,255.14 | |
|
Year
10
|
$ | 930,153.60 | $ | 77,512.80 | |
Subtenant acknowledges that certain
recurring customer revenue (“Customer Recurring Revenue”) is being assigned to
Subtenant from Sublandlord and that such Customer Recurring Revenue is as of the
Effective Date of this Sublease equal to
$25,000.00/month. Sublandlord and Subtenant acknowledge that
Sublandlord may refer additional customers to Subtenant for services at the
Leased Premises at any time during the Term. As a result of the
foregoing, Sublandlord and Subtenant agree that beginning with the third lease
year (Year 3 as stated in the chart above) and for every lease year thereafter
that Subtenant’s monthly Customer Recurring Revenue exceeds $25,000.00 per month
(“Customer Recurring Revenue Baseline”) that Subtenant’s monthly Base Rent shall
increase in an amount equal to every dollar in excess of the Customer Recurring
Revenue Baseline, however in no lease year shall Subtenant’s monthly Base Rent
increase by more than $6,375.00 over the monthly Base Rent amount as provided in
the Chart above. By way of example but not by way of limitation, to
the extent that the monthly Customer Recurring Revenue during any month in lease
year three (3) is in excess of the monthly Customer Recurring Revenue Baseline
by more than $10,000.00 then Subtenant’s monthly Base Rent during lease year
three (3) shall equal $69,400.00.
Sublandlord
and Subtenant agree that Subtenant shall receive a Base Rent Credit towards the
amount of Subtenant’s Base Rent as provided herein equal to the actual rent
credit received by Yourcolo, LLC which as of the Effective Date equals
$3,850.00/month.
All
payments of Base Rent due under this Sublease shall be due and payable monthly
in advance on or before the first day of each calendar month during the Term
commencing on the Effective Date, shall be made by normal business methods
without demand, set-off, or deduction whatsoever, and shall be paid and
addressed to Sublandlord at 000 Xxxx Xxxx Xxxxxx, Xxxxx 000, Xxxxxxxx, XX 00000,
or at such other address as Sublandlord may designate in writing to Subtenant
from time to time. If the Effective Date is not the first day of a
calendar month, the Base Rent for the first partial month of the Term shall be
prorated on a daily basis and due on the Effective Date.
|
§4.
|
ADDITIONAL
RENT, PERCENTAGE RENT & SECURITY
DEPOSIT
|
A. Additional
Rent. Sublandlord and Subtenant agree that it is the intention of
Sublandlord and Subtenant to pass all of Sublandlord’s monetary obligations
(without premium or xxxx-up) incurred under the Lease during the Term with
respect to the Leased Premises to Subtenant, and Subtenant agrees to pay or
otherwise reimburse Sublandlord for all of Sublandlord’s monetary obligations
incurred with respect to the Lease. To this end, in addition to the
Base Rent, Subtenant shall pay to Sublandlord as Additional Rent (as defined in
the Lease) in the manner provided for below, in United States dollars, during
the Term, its pro rata share (“Subtenant’s Pro Rata Share”) of the Additional
Rent (as defined in the Lease) relating to the Building and the Real
Property.
1. Commencing
on and after the Effective Date and relative to the Leased Premises, Subtenant
shall pay Subtenant’s Pro Rata Share of Sublandlord’s Additional Rent obligation
under the Lease relative only to the Leased Premises (the Parties acknowledge
that Subtenant is subleasing only a portion of the Premises) applicable to the
Term.
2. At the
commencement of each calendar year, Sublandlord shall furnish Subtenant with
Landlord’s estimate of the monthly Additional Rent amount for such calendar
year. All Additional Rent with respect to the Leased Premises shall
be paid in lawful money of the United States to Sublandlord in immediately
available funds with each monthly payment of Base Rent. Sublandlord
and Subtenant agree that it is the intention of Sublandlord and Subtenant to
pass all of Sublandlord’s obligations (without premium or xxxx-up) for
Additional Rent incurred under the Lease during the Term with respect to the
Leased Premises to Subtenant, and Subtenant agrees to pay or otherwise reimburse
Sublandlord for Subtenant’s Pro Rata Share of Sublandlord’s obligations for
Additional Rent incurred with respect to the Lease; provided, however, that
Sublandlord acknowledges and agrees that Subtenant’s obligation to pay
Additional Rent hereunder shall in no event include amounts charged by Landlord
as late fees and/or attorney’s fees for Sublandlord’s breach of, or failure to
abide by, any of the terms of the Lease. Subsequent to the end of each calendar
year Sublandlord shall furnish Subtenant with a statement of the actual amount
of Subtenant's proportionate share of such cost and expenses for such
period. If the total amount paid by Subtenant under this section for
any such year shall be less than the actual amount due from Subtenant for such
year as shown on such statement, Subtenant shall pay to Landlord the difference
between the amount paid by Subtenant and the actual amount due, such deficiency
to be paid within thirty (30) days after the furnishing of each such statement,
and if the total amount paid by Subtenant hereunder for any such year shall
exceed such actual amount due from Subtenant for such year, such excess shall be
credited against the next installment due from Subtenant to Sublandlord under
this section, or promptly refunded to Subtenant if Sublandlord is holding any
excess following expiration of the Term. When adjustments between
actual and estimated Additional Rent are made under the Lease, the obligations
of Sublandlord and Subtenant hereunder shall be adjusted accordingly; and if any
such adjustment shall occur after the expiration or
earlier
termination of the Term, then the obligations of Sublandlord and Subtenant under
this Section 4.1 shall survive such expiration or earlier
termination.
The
Parties agree that Subtenant’s Pro Rata Share shall be 14%. Landlord’s estimate
of Additional Rent for the calendar year 2009 is $1.22 per square
foot.
During
any calendar year, or portion thereof in which less than 95% of the total
leasable square footage of the Building is leased, Subtenant acknowledges that
Landlord, pursuant to the Lease with Sublandlord, may gross-up all Additional
Rent which vary with the level of occupancy (e.g. management fees) for the
Building for that calendar year or portion thereof to reflect what such
Additional Rent would have been had the Building been fully
leased. The intent of the foregoing is that Subtenant shall be
responsible for its Pro Rata Share of all such Additional Rent relating to the
Leased Premises based upon the ratio of the Additional Rent relating to the
Leased Premises as to the entire Building and Real Property. All obligations of
Sublandlord and Subtenant under this Section 4 shall survive the termination of
the Lease or this Sublease.
B. Percentage
Rent. Commencing on the Effective Date, and in addition to Base Rent
and Additional Rent, Subtenant agrees to pay to Sublandlord quarterly percentage
rent (“Percentage Rent’) in arrears during the Term hereof in an amount equal to
four percent (4%) of Subtenant’s Gross Revenue (as hereinafter defined) during
such calendar quarter.
Within
thirty (30) days following the end of each calendar quarter, Subtenant shall
furnish to Sublandlord an accurate statement of Gross Revenue for the
immediately preceding calendar quarter (January-March, April-June,
July-September and October-December) and Subtenant shall remit payment of such
quarterly Percentage Rent at such time as Subtenant furnishes its statement of
Gross Revenue. Additionally, Subtenant shall furnish to Sublandlord,
within thirty (30) days immediately following the end of each calendar year, a
statement of the Gross Revenue for the preceding calendar year, certified by an
independent certified public accountant or an officer, director or member of
Subtenant, in such form and with such detail as shall be reasonably satisfactory
to Sublandlord, and shall therewith pay to Sublandlord, any Percentage Rent then
due. Should Subtenant fail to furnish to Sublandlord such quarterly statement of
Gross Revenue, annual statement of Gross Revenue, and Percentage Rent payment
within the period required, Sublandlord may upon thirty (30) days’ written
notice from Sublandlord and providing Subtenant a reasonable time to provide the
same, charge Subtenant interest at ten percent (10%) per annum on the amount of
Percentage Rent owed for the period that such payment is delinquent and
Subtenant shall be deemed to be in default under the Lease.
The term
"Gross Revenue" as used in this Sublease shall mean the full amount of all
hosting services invoiced from all hosting business conducted, sold or rendered
in, on, about or from the Leased Premises by Subtenant to any customers
currently designated on the Customer Services contracts and/or any future
customers of Subtenant signed to like or similar Customer Service contract (it
being the express intent of the Parties that any customers of Subtenant that use
and/or utilize “hosting” services from Subtenant as of the Effective Date of
this Sublease and during the entire Term of this Sublease that any
revenue
generated from such “customers” shall be included in Gross Revenue) and any
Subtenant’s, licensees or concessionaires, whether for cash or on a charge,
credit or time basis, without reserve or deduction for inability or failure to
collect, including but not limited to Gross Revenue generated for: use of space
within the Leased Premises, use of power within the Leased Premises, use of
electricity within the Leased Premises, server hosting and rack
hosting.
Sublandlord
and Subtenant agree that certain revenue generated by Subtenant during the Term
of this Sublease shall not be included within Gross Revenue. It is
the Parties intent that hardware and/or equipment and/or software which is
typically sold by Subtenant to its customers is not a revenue generating source
of income for Subtenant as the same relates to its “web-hosting” services (which
is Gross Revenue as set forth above) and is commonly passed through to
Subtenant’s customers at cost. Additionally, Subtenant currently uses certain
equipment and space within the Leased Premises under a contract with a third
party and therefore desires to exclude the same from Gross Revenue as it is
currently paying such third party for the same services. Therefore, Subtenant
and Sublandlord agree that the following shall be excluded from Gross
Revenue: (i) any revenue generated from Cabinets 4 and 5 in row 2
currently located in the Leased Premises and used by Subtenant, provided however
that Subtenant’s current contract with the third party is in force and effect
and to the extent that such contract expires, then this exclusion from Gross
Revenue shall be void and to the extent that Subtenant generates Gross Revenue
from Cabinets 4 and 5 in row 2 after the expiration of its current contract with
such third party, then such Gross Revenue shall be included within the
definition of Gross Revenue; (ii) any revenue generated from “managed” service
contracts or contracts for the sale of “non-hosting” type service to Subtenant’s
customers whereby such sales of service are not directly linked to Subtenant’s
use of the Leased Premises; (iv) all hardware sales; (v) late fees, interest,
and/or penalties
C. Security
Deposit. To secure the faithful performance by Subtenant of all of the
covenants, conditions and agreements in this Sublease set forth and contained on
the part of the Subtenant to be fulfilled, kept, observed and performed,
including, but without limiting the generality of the foregoing, such covenants,
conditions and agreements in this Sublease which become applicable upon the
termination of the same by re-entry or otherwise, Subtenant shall deposit
herewith the sum of Forty Thousand Dollars ($40,000.00) with Sublandlord,
payable as follows: (i) Twenty Thousand Dollars ($20,000.00) upon execution of
this Sublease by Subtenant and (ii) Twenty Thousand Dollars ($20,000.00) upon
occupancy of the Leased Premises, as a security deposit (“Security Deposit”) on
the understanding: (a) that such deposit or any part or portion
thereof not previously applied, or from time to time, such one or more parts or
portions thereof, may be applied to the curing of any default that may then
exist without prejudice to any other remedy or remedies which the Sublandlord
may have on account thereof, and upon such application Subtenant shall pay
Sublandlord, within ten (10) business days of its receipt of written notice
therefore, the amount so applied which shall be added to the Security Deposit so
the same may be restored to its original amount; (b) that should the Leased
Premises be conveyed by Sublandlord, the deposit or any portion thereof not
previously applied may be turned over to Sublandlord’s grantee, and if the same
be
turned
over as aforesaid, the Subtenant hereby releases Sublandlord from any and all
liability with respect to the Security Deposit and/or its application or return,
and the Subtenant agrees to look to such grantee for such application or return;
(c) that Sublandlord, the beneficiaries of Sublandlord and partners thereof, and
their respective successors and assigns shall have no responsibilities with
respect to said sum except as specifically set forth herein; (d) that
Sublandlord shall not be obligated to hold said Security Deposit as a separate
fund, but on the contrary may commingle the same with its other funds; (e) that
if Subtenant shall faithfully fulfill, keep, perform and observe all of the
covenants, conditions and agreements in this Sublease set forth and contained on
the part of Subtenant to be fulfilled, kept, performed and observed, the sum
deposited or the portion thereof not previously applied, shall be returned to
the Subtenant without interest no later than thirty (30) days after expiration
of the Term of this Sublease or any renewal or extension thereof, provided
Subtenant has vacated the Leased Premises and surrendered possession thereof to
the Sublandlord at the expiration of said term or any extension or renewal
thereof in accordance with the provisions hereof; and (f) in the event any
bankruptcy, insolvency, reorganization or other creditor-debtor proceedings
shall be instituted by or against Subtenant, or its successors or assigns, the
Security Deposit shall be deemed to be applied first to the payment of any rents
and other charges due Sublandlord for all periods prior to the institution of
such proceedings, and the balance, if any, of the Security Deposit may be
retained or paid to Sublandlord in partial liquidation of Sublandlord’s damages;
(g) that Sublandlord reserves the right, at its sole option, to return to
Subtenant said Security Deposit or what may then remain thereof, at any time
prior to the date when Sublandlord is obligated hereunder to return the same,
but said return shall not in any manner be deemed to be a waiver of any default
of the Subtenant hereunder then existing nor to limit or extinguish any
liability of Subtenant hereunder.
|
§5.
|
INTENTIONALLY
OMITTED.
|
|
§6.
|
INSURANCE
|
A. Landlord
Requirements. Subtenant acknowledges that pursuant to the
Lease, Landlord maintains an amount reasonably acceptable to Landlord from time
to time all of the following insurance coverages: (i) special form
property coverage insuring the full replacement value of the Building and all
other improvements to the Real Property, (ii) commercial general liability
insurance having a combined limit of not less than $2,000,000, per occurrence,
and (iii) during the construction of the Subtenant Improvements, builder’s risk
insurance.
B. Subtenant
Requirements. At all times during the Term, Subtenant shall
maintain such insurance as Sublandlord may reasonably require, including without
limitation personal property, liability, plate glass, business interruption, and
workers compensation insurance. Specifically, Subtenant shall obtain
and maintain, during the Term, commercial general liability insurance written on
an occurrence basis (including bodily injury, broad form property damage and
blanket contractual liability), insuring Subtenant’s
liability
for loss of, or damage to, property and injury to or death of third parties with
a limit of at least $2,000,000 combined single limit bodily injury and
$1,000,000 property damage for each such occurrence. All such
insurance must be issued by reputable insurance companies licensed to sell such
insurance in the State of Ohio and be in amounts satisfactory to Landlord and
Sublandlord in their reasonable discretion, include waivers of subrogation,
provide that it may not be canceled except upon at least thirty (30) days prior
written notice to Landlord and Sublandlord, and name Landlord and Sublandlord
(and, if requested by Landlord or Sublandlord, any mortgagee of the Building) as
an additional insured or loss payee, as appropriate. Evidence of such
insurance must be delivered to Sublandlord before Subtenant is permitted to
enter the Leased Premises and must be provided not less frequently than annually
thereafter upon the request of Sublandlord.
If
Subtenant does or permits anything to be done in the Leased Premises, Building,
or Real Property, or brings or keeps anything therein, which may in any way
increase the rate of fire or other insurance thereon, or conflict with any
insurance policy upon the Building or any part thereof, or with any statutes,
rules or regulations enacted or established by the appropriate governmental
authorities, then Subtenant shall pay to Sublandlord as Additional Rent all
amounts necessary to reimburse Landlord for such increase or otherwise remedy
such situation.
C. Waiver of
Subrogation.
Notwithstanding
anything in this Sublease to the contrary, Sublandlord and Subtenant each hereby
waives all rights of recovery, claim, action or cause of action against the
other, its agents, officers, managers, directors, partners, members,
shareholders or employees, for any loss or damage that may occur to the Leased
Premises or any property therein, by reason of fire, the elements or any other
cause which is insurable special form property coverage insurance policies,
regardless of cause or origin, including negligence, and each covenants that no
insurer shall hold any right of subrogation against such other
party.
|
§7.
|
QUIET
ENJOYMENT
|
Provided
that Subtenant observes and performs the covenants and agreements under this
Sublease, Subtenant shall, at all times during the Term, peacefully and quietly
have and enjoy possession of the Leased Premises without encumbrance or
hindrance from Sublandlord.
|
§8.
|
USE
OF LEASED PREMISES; COMPLIANCE WITH
LAWS
|
Subtenant
shall use the Leased Premises for general office use and/or for use as a data
center only, including uses incidental or related thereto, and shall not permit
the Leased Premises to be used for any other purpose without the prior written
consent of Sublandlord to that specific use. Subtenant shall occupy
and use the Leased Premises only in a careful, safe, and proper manner and shall
not commit or permit any waste of or on the Leased
Premises. Subtenant shall comply with the Rules and Regulations
attached hereto as Exhibit C and with all reasonable modifications thereof
adopted by
Landlord
and/or Sublandlord and furnished to Subtenant from time to time; provided that
such rules and regulations do not unreasonably restrict or interfere with
Subtenant’s operations.
Subtenant
shall promptly comply or cause compliance with all laws, regulations, orders,
and requirements of all federal, state, and local governments, courts, or other
lawful authorities, which now or at any time hereafter may apply to or affect
Subtenant’s business operations to be conducted on the Leased Premises, whether
present or future, foreseen or unforeseen, ordinary or extraordinary, and
whether or not presently contemplated by Sublandlord or
Subtenant. Subtenant shall obtain, maintain, and comply with all
permits, licenses, and other authorizations required for any use then being made
of the Leased Premises.
No
abatement or interruption in Rent or other charges required to be paid by
Subtenant pursuant to this Sublease shall be claimed by or allowed to Subtenant
for any inconvenience or interruption or loss of business caused directly or
indirectly by any present or future laws, ordinances, regulations, requirements,
or orders of any lawful authority whatsoever, or by any other cause or causes,
unless directly resulting from the gross negligence or intentional or willful
misconduct of Sublandlord or Sublandlord’s employees, agents or invitees; and no
diminution in the amount of space used by Subtenant caused by legally required
changes in the Leased Premises shall entitle Subtenant to any abatement or
reduction in Rent or any other charges required to be paid by Subtenant under
this Sublease.
|
§9.
|
BUILD
OUT OF SUBTENANT IMPROVEMENTS; PUNCHLIST
ITEMS
|
Sublandlord
shall at its cost and expense complete all improvements to the Leased Premises
(the “Subtenant Improvements”) on or before April 10, 2009 (“Subtenant
Improvement Completion Date”) substantially in accordance with the final
Subtenant plans and specifications approved by Sublandlord and Subtenant (the
“Subtenant Improvement Plans”, a copy of which are attached hereto as Exhibit
D). In the event Subtenant Improvements are not substantially
complete on or before the Subtenant Improvement Completion Date then Subtenant
shall be entitled to receive one day of free Base Rent for each day the
Subtenant Improvements are not substantially complete on or after the Subtenant
Improvement Completion Date. In the event the Subtenant Improvement Plans have
not been fully completed and agreed upon by Sublandlord and Subtenant as of the
date of execution of this Sublease, Sublandlord and Subtenant shall develop and
complete the same in accordance with the provisions for Completion of Subtenant
Improvement Plans attached hereto as Exhibit D. Subtenant
acknowledges that the Base Rent contemplates an allowance for Subtenant relating
to completion of the Subtenant Improvements of $800,000.00 (Eight Hundred
Thousand Dollars) for the Leased Premises including any signs or other amenities
to the Real Property desired by Subtenant (the “Allowance”). In the
event the cost of completing such Subtenant Improvements is less than the
Allowance, Sublandlord shall credit the available funds to the payment of Base
Rent. In the event the cost of completing such Subtenant Improvements
is greater than the Allowance, Subtenant shall pay to Sublandlord within
thirty
(30) days after the Commencement Date a lump sum payment in the amount of such
difference. Failure to remit payment as provided herein shall
constitute and event of default under this Sublease. Subtenant shall
not do anything, or fail to do anything, that will cause a delay in the
completion of the construction of such Subtenant Improvements within the Leased
Premises or that will increase the costs of such construction. In the
event Subtenant fails to cooperate or comply with this section and such failure
results in a delay of completion of the construction of such Subtenant
Improvements by Sublandlord, Subtenant shall be responsible to Sublandlord for
all Rent that would have been due from Subtenant under this Sublease but for
such delay. Subject to Section 10 herein, and delays caused by
Subtenant failing to timely make selections, Sublandlord shall complete
construction of the Subtenant Improvements not later than one hundred eighty
(180) days after the issuance by the City of Columbus, Ohio of a building permit
for the Subtenant Improvements and Sublandlord shall notify Subtenant in writing
of such completion of construction (the date of Subtenant’s receipt of such
notice being referred to herein as the “Completion Date”). The
Completion Date shall be extended by the number of days attributable to any
delays caused by or attributable to Subtenant, including without limitation any
delays attributable to changes to the Subtenant Improvement Plans, and shall be
extended pursuant to Section 10 of this Sublease.
Within
five (5) business days after the Completion Date and in the event all of the
Subtenant Improvements are not substantially complete by Sublandlord, Subtenant
shall deliver to Sublandlord a written list of uncompleted items (the “Punch
List”) that Sublandlord has failed to so complete. Following receipt
of the Punch List, Sublandlord shall use commercially reasonable efforts to
complete all of the items on the Punch List as soon as reasonably possible
(subject to the availability of materials and appropriate weather
conditions).
If, on or
before the expiration of the third full lease year, for any reason this Sublease
is terminated prior to the Expiration Date of the initial Term, then the
unamortized portion of the Allowance which was theretofore disbursed by
Sublandlord to Subtenant (amortized on a straight-line basis over the initial
Term) shall become immediately due and payable to Sublandlord from Subtenant and
any portion of the Allowance which had not been disbursed by Sublandlord to
Subtenant , if any, as of such date shall be retained by Sublandlord and
Subtenant shall have no right or claim thereto.
|
§10.
|
FORCE
MAJEURE
|
In the
event either party shall be delayed or hindered or prevented in the performance
of any obligations (other than Subtenant’s obligation to pay the Rent to
Sublandlord) required under this Sublease by reason of strike, lockout,
inability to procure labor or materials, failure of power, fire, or acts of God,
restrictive governmental laws or regulations, riots, insurrection, war or any
other reason not within the reasonable control of such party, the performance of
such obligations shall be excused for a period of such delay and the period for
the performance of any such act shall be extended for a period equivalent to the
period of any such delay.
|
§11.
|
MAINTENANCE
AND REPAIRS
|
Subtenant
acknowledges that certain equipment and mechanicals, including but not limited
to, HVAC Equipment and related ductwork, power distribution units, ladder tray,
cabling, grounding terminals, which are located in the Leased Premises or
exclusively serving the Leased Premises are highly technical and imperative to
the operation of the third (3rd) floor
of the Building. Subtenant agrees that it shall not alter, amend,
repair and/or replace of the equipment and/or mechanicals nor shall Subtenant
contract for and/or hire any third party to alter, amend, repair and/or replace
any of the equipment or mechanicals.
Except as
specifically provided herein, Subtenant shall maintain the interior of the
Leased Premises and all fixtures, signs, and personal property therein in good
order and condition of repair, safety, cleanliness, and appearance, ordinary
wear and tear excepted, and shall promptly make all repairs and replacements
necessary or appropriate to so maintain the Leased Premises and such fixtures,
signs, equipment, and personal property including without limitation repairs or
replacements of plate glass, windows, doors, fixtures, equipment, furniture, and
appliances. At the expiration or other termination of this Sublease,
Subtenant shall surrender and deliver up the Leased Premises in good order and
condition as it is (or shall be upon completion of construction of the Subtenant
Improvements), ordinary wear and tear and damage by fire or other casualty
excepted.
Subject
to the reimbursement obligation of Subtenant under Section 4, above, Landlord
shall maintain the Building (excluding the Leased Premises) and Common Areas
available for use by all tenants of the Building and their invitees on a
non-exclusive basis in good order and condition of repair, safety, cleanliness,
and appearance, ordinary wear and tear excepted.
|
§12.
|
ALTERATIONS
|
Subtenant
shall not in any circumstances alter, amend, repair and/or replace any of the
mechanical equipment located within the Building or on the third (3rd) floor
of the Building or contained within the Leased Premises. No
alteration, addition, improvement, or other change in or to the Leased Premises
(hereinafter an “Alteration”) shall be made by Subtenant except under the
following circumstances: (a) no Alteration shall be made without the
prior written consent of Landlord and Sublandlord to the specific Alteration
(which consent shall not be unreasonably withheld, delayed, or conditioned),
except usual nonstructural interior remodeling which enhances the value of the
Leased Premises; (b) no Alteration shall be commenced until Subtenant has first
obtained and paid for all required permits and authorizations of all
governmental authorities having jurisdiction; (c) any Alteration shall be made
promptly and in a good and workmanlike manner and in compliance with all laws,
ordinances, regulations, and requirements of all governmental authorities; (d)
the cost of any such Alteration shall be paid in cash or its equivalent, so that
the Leased Premises shall at all times be free of liens and claims for work,
labor, or materials supplied or claimed to have been supplied to the Leased
Premises and, if Landlord and Sublandlord at any time so requests, no Alteration
shall commence or proceed unless Subtenant gives evidence satisfactory to
Landlord and Sublandlord that
such
Alteration will be fully paid for upon completion; and (e) any Alteration shall
immediately become and remain the property of Landlord, unless Landlord
otherwise agrees, in writing, subject to the rights of Subtenant under this
Sublease provided that upon termination of this Sublease.
|
§13.
|
DAMAGE
OR DESTRUCTION TO LEASED PREMISES
|
If at any
time during the Term the Leased Premises are damaged or destroyed to the extent
that Subtenant is unable to operate its business from the Leased Premises,
Sublandlord shall repair or restore the Leased Premises (subject to the
following paragraph) to the condition that existed immediately prior to such
damage or destruction unless such repair or restoration cannot be reasonably
completed within one hundred eighty (180) days after such damage or destruction
occurred, in which event either Sublandlord or Subtenant may terminate this
Sublease, within ten (10) business days after the later of: (i) the date on
which such damage or destruction occurred, or (ii) the date on which Sublandlord
notifies Subtenant in writing that it cannot repair and/or restore the Leased
Premises within one hundred eighty (180) days from the date of such damage or
destruction. Upon such termination, the rent payable by Subtenant
shall be apportioned as of the date of such damage or destruction. In
the event this Sublease is not so terminated by either Sublandlord or Subtenant
within that ten (10) day period, the Rent payable by Subtenant shall be abated
during the period of any restoration or repair of the Leased Premises but only
in such proportion that the floor area of the Leased Premises of which Subtenant
is deprived of using (as a result of such damage or destruction or the repair or
restoration necessitated thereby) bears to the total floor area of the Leased
Premises. In the event the Leased Premises are damaged or destroyed
to the extent that Subtenant is only able to operate its business partially out
of the Leased Premises, neither Sublandlord nor Subtenant shall have the right
to terminate this Sublease; provided that the Rent payable by Subtenant shall be
partially abated (as of the date of such damage) until repaired based upon the
square footage of the Leased Premises which Subtenant is able to use for
purposes of operating its business operations. Notwithstanding
anything in this paragraph to the contrary, in the event the Leased Premises are
damaged to an immaterial or nonsubstantial degree and the balance of the
Building has not been materially damaged (i.e. Subtenant is able to
substantially perform its business operations from the Leased Premises
uninterrupted), Sublandlord shall cause the Leased Premises to be repaired and
restored as soon as reasonably possible after the date of such damage; provided
that in such event, Rent shall not be abated or reduced.
Unless
this Sublease is terminated as provided above in this section, this Sublease
shall remain in full force and effect and Sublandlord shall proceed with due
diligence to restore, repair, and replace the Leased Premises to substantially
the same condition as they were in prior to such damage or
destruction. Sublandlord shall be under no duty to restore any
Alterations, improvements or additions made by Subtenant or by Sublandlord at
Subtenant's request after the Commencement Date, unless covered by proceeds of
insurance designated for such Alterations, improvements, or additions and
available to Sublandlord. In all cases, allowances for the completion
of the repairs shall be given to Sublandlord for any reasonable delays caused by
adjustment of insurance loss, strikes,
labor
difficulties, inability to obtain supplies or materials or any cause beyond
Sublandlord's control.
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§14.
|
CONDEMNATION
|
If all or
a material part of the Leased Premises are taken by any condemning authority
under the power of eminent domain or by any purchase or other acquisition in
lieu thereof, this Sublease shall terminate as of the date possession is
required by the condemning authority. In addition, if any portion of
the Real Property (other than the Leased Premises) is so taken, Sublandlord and
Subtenant (provided that such a taking materially affects Subtenant’s business
operations) shall each have the option to terminate this Sublease at any time
prior to or within thirty (30) days after the date possession is required by the
condemning authority. In the event of any such termination, the Rent
payable by Subtenant shall be apportioned as of the termination
date. In any event, Landlord or Sublandlord shall be entitled to
receive the entire appropriation award or consideration paid by the condemning
authority without any deduction therefrom for any leasehold estate or interest
of Subtenant. However, Subtenant shall not be prevented from making a
claim in its own name against such condemning authority with respect to any
trade fixtures, trade equipment, merchandise or personal property of Subtenant
which shall be subject to such taking and for Subtenant’s moving and relocation
cost.
For
purposes of this section, any negotiated sale to a public or quasi-public
authority under the threat of condemnation shall be deemed to constitute a
taking by such public or quasi-public authority under the power of eminent
domain.
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§15.
|
THIRD
FLOOR SERVICES PROVIDED BY SUBLANDLORD/THIRD FLOOR CAM
CHARGE
|
During
the Term and provided that Subtenant is not in default under any of the
covenants or provisions of this Sublease, Sublandlord shall at all times
hereunder, subject to the reimbursement obligation of Subtenant under Section 4,
above, maintain the third (3rd)
floor of the Building in good order and condition except for damage occasioned
by
the actions or inactions of Subtenant, its employees, agents or invitees, and
Sublandlord shall also maintain and provide the following
services:
(a) all mechanicals
servicing the third (3rd) floor
exclusively of the Building, including, without limitation, HVAC;
(b) all generators serving the third
(3rd) floor
exclusively of the Building;
(c) all
security systems serving the third (3rd) floor
exclusively of the Building;
(d)
provide antistatic flooring serving the third (3rd) floor
exclusively of the Building; and
(e)
24/7/365 access to the Leased Premises.
(f) not
less than two (2) independent electric and/or power sources serving the third
(3rd) floor
exclusively of the Building;
(g) not
less than two (2) independent bandwidth carriers or providers for the purpose of
providing internet service.
In
addition to the foregoing, Sublandlord shall provide the following services for
the third (3rd) floor
of the Building identified below in this paragraph only up to the Point of
Demarcation. “Demarcation” or “Point of Demarcation” has a separate
meaning for each Service provided [i.e. space, power, Ethernet, or fiber
(GigE)]. For space the Point of Demarcation is at the perimeter of the Customer
Specific Datacenter101 Premises. For power the Point of Demarcation is the
panels A and B inside of power distribution units (PDU) A and B located on the
third floor of the Building. For Ethernet the Point of Demarcation is
the designated patch panels installed in racks 1 through 4 inside the Leased
Premises marked “meet me room” on the floor layout. For fiber (GigE)
the Demarcation Point is the designated fiber patch panels installed in racks 1
and 3 inside the Leased Premises marked “meet me room” on the floor
layout.
Subtenant
hereby acknowledges that certain equipment, mechanicals and electricity sources
specifically and separately serve only the third (3rd) floor
of the Building where the Leased Premises is located. As a result, it is
necessary to specifically assess Subtenant and the other users of the third
floor of the Building certain common area costs and expense that are only
attributable to the third floor of the Building. Subtenant acknowledges that
such third floor specific costs and expenses are in addition to the costs and
expenses set forth in Section Four (4) of this Sublease. Subtenant and
Sublandlord agree that the following shall be “Third Floor CAM” costs and
expenses to be paid by Subtenant to Sublandlord as provided herein: (1) all
electricity provided to the Leased Premises at the rate of $0.114 per kw (as
increased or decreased as provided herein); (2) all bandwidth provided to the
Leased Premises; (3) the use of generators and security systems that mutually
benefit all tenants or customers of the third (3rd) floor
of the Building; (4) certain wages and salaries of Sublandlord and/or its
personnal relative to the operation and maintenance of the third floor of the
Building; (5) the cost of all supplies, tools, equipment and
materials used in the operation and maintenance of the third floor of the
Building; (6) the cost of all maintenance and service agreements for the third
floor of the Building and the equipment therein, including but not limited to
alarm service, security service, access control; (7) amortization (together with
reasonable financing charges) of the cost, over the useful life thereof, of
capital investment items to the third floor of the Building, including, but not
limited to HVAC, power, electricity, etc.) which are installed for the purpose
of updating and/or maintaining a data center of the type and quality necessary
to serve the industry and/or to comply with governmental requirements or laws to
the extent such regulations or laws are amended, become effective, or are
reinterpreted or enforced differently after the Effective Date of this
Sublease.
Subtenant
and Sublandlord acknowledge that Sublandlord is providing certain third floor
electricity and bandwith to Subtenant and that Sublandord, as of the Effective
Date, is charged a cost for providing the same in accordance with the bandwith
chart, attached hereto and incorporated herein. In the event of a
change in law, regulatory change (including state, local or Federal), an
administrative ruling, change in policy or enactment by a third party provider
to Sublandlord which affects the cost of providing services, including, but not
limited to electricity or bandwith to the Building, or in the event, or a change
in costs of goods for services provided to Sublandlord from third party
providers including by way of example, but not by way of limitation, changes,
increases or decreases in rates from AEP, Time Warner or others beyond the
reasonable control of Sublandlord, Sublandlord reserves the right, upon thirty
(30) days' notice to Subtenant, to at the option of Sublandlord either
discontinue the third party service or increase/decrease, as applicable,
Sublandlord’s pricing to Subtenant to include the actual increase/decrease in
the charges incurred by Sublandlord. Sublandlord agrees that
it shall separately meter the Leased Premises to record the direct usage of the
electricity and bandwidth by Subtenant and to provide usage and/or submeter
reports for each to Subtenant on a monthly basis which set forth Subtenant’s
electricity and bandwidth usage for the immediately preceding
month. Sublandlord will invoice Subtenant for its actual
use of electricity and bandwith, on a monthly basis, and Subtenant shall remit
payment to Sublandlord within ten (10) days of the date of such
invoice.
Subtenant agrees that, in addition to
Additional Rent, it shall be responsible to pay its pro rata share of such Third
Floor CAM in an amount equal to the total costs of the Third Floor CAM
multiplied by a quotient, the numerator of which is the number of square feet of
the Leased Premises and the denominator of which is the number of square feet of
the third (3rd) floor
of the Building. Such Third Floor Cam shall be billed along with the
Additional Rent and due and payable in accordance with such Additional
Rent. Subtenant’s pro rata share for purposes of calculating its
share of Third Floor CAM is 24%. Sublandlord’s estimate of Third Floor CAM costs
for the calendar year 2009 is $1.22 per square foot/monthly. During
the first six months of the first lease year of the Term, Sublandlord will
invoice Subtenant the amount Subtenant owes for Third Floor CAM, on a monthly
basis based on Subtenant’s actual use, and Subtenant shall remit payment to
Sublandlord within ten (10) days of the date of such
invoice. Commencing with month seven of the first year of the Term
and thereafter, Sublandlord shall furnish Subtenant with Sublandlord’s estimate
of the monthly Third Floor CAM. Subsequent to the end of each calendar year,
Sublandlord shall furnish Subtenant with a statement of the actual amount of
Subtenant's proportionate share of such cost and expenses for such
period. Sublandlord agree that it shall make Xxxxxxx Xxxxxxx or
someone of like or similar experience of Sublandlord reasonably available to
closely collaborate with Xxxxxx Xxxxxxx, or someone of like or similar
experience from Subtenant to examine and review the Third Floor
CAM. If the total amount paid by Subtenant under this section for any
such year shall be less than the actual amount due from Subtenant for such year
as shown on such statement, Subtenant shall pay to Landlord the difference
between the amount paid by Subtenant and the actual amount due, such deficiency
to be paid within thirty (30) days after the furnishing of each such statement,
and if the total amount paid by
Subtenant
hereunder for any such year shall exceed such actual amount due from Subtenant
for such year, such excess shall be credited against the next installment due
from Subtenant to Sublandlord under this section, or promptly refunded to
Subtenant if Sublandlord is holding any excess following expiration of the
Term. When adjustments between actual and estimated Third Floor CAM
are made under the Lease, the obligations of Sublandlord and Subtenant hereunder
shall be adjusted accordingly; and if any such adjustment shall occur after the
expiration or earlier termination of the Term, then the obligations of
Sublandlord and Subtenant under this Section shall survive such expiration or
earlier termination.
To the
extent reasonably feasible, Sublandlord may arrange Third Party Services (as
defined below) requested by Subtenant, but in no event shall Sublandlord be
liable for claims, actions, or other damages, of whatever type or nature
including but not limited to any incidental or consequential damages, arising
directly or indirectly from said Third Party Services. "Third Party Services"
means services provided by any person or entity other than Sublandlord or its
Affiliates to Subtenant.
The terms and conditions of any Third Party Services, including any
service level parameters and related warranties (if any), pricing, surcharges,
outage credits, required commitments, termination liability, and other
service-specific terms, will be those of the third party provider and not
provided by Xxxxxxxxxxx.
|
§00.
|
SUBORDINATION
OF SUBLEASE
|
This
Sublease and Subtenant’s rights under this Sublease are and shall at that time
be subject and subordinate to all mortgages now encumbering or that may
hereafter encumber the Building and/or the Real Property and to all advances
made or to be made thereon and all renewals, modifications, consolidations,
replacements or extensions thereof to the full extent of all sums secured
thereby. This provision shall be automatic and self-operative and no
further instrument of subordination shall be necessary to effectuate such
subordination and the recording of any such mortgage shall have preference and
precedence and be superior and prior to this Sublease, irrespective of the date
of recording; provided that Subtenant’s right under this Sublease shall not be
disturbed so long as Subtenant complies with its obligations under this
Sublease. However, Subtenant shall upon request of Sublandlord, or
the holder of any such mortgage, execute and deliver to Sublandlord within ten
(10) business days after Sublandlord’s request an instrument that would effect
such a subordination and would contain such other requirements reasonably
required by Sublandlord or such holder; provided that Subtenant complies with
all of its obligations under this Sublease treating such mortgagee as
Sublandlord; provided further that any such instrument also contain
non-disturbance language to Subtenant’s reasonable satisfaction.
|
§17.
|
ESTOPPEL
CERTIFICATES
|
Sublandlord
and Subtenant shall from time to time during the Term promptly following the
request of the other, but not later than ten (10) business days after such
request, execute and deliver to the other a statement certifying that this
Sublease is in full force and effect,
the date
through which Base Rent, Additional Rent, and other charges under this Sublease
have been paid, and any other factual matter reasonably requested by the
other. Upon request Subtenant shall further endeavor in good faith to
obtain from any sublessee of Subtenant an Estoppel Certificate confirming as to
such sublease that the sublease is in full force and effect, the date through
which Base Rent, Additional Rent, and other charges under the such sublease have
been paid, and any other factual matter reasonably requested by
Xxxxxxxxxxx.
|
§00.
|
INDEMNIFICATION
|
Subtenant
shall indemnify and save harmless Sublandlord against and from any and all
claims, liabilities, losses, damages, injuries, costs, and expenses that
hereafter may occur or arise from or out of: (a) any failure by
Subtenant to make any payment (including the payment of Rent) to be made by
Subtenant hereunder or fully to perform or observe any obligation or condition
to be performed or observed by Subtenant hereunder, (b) subject to the following
paragraph and §6(c), above, any cause whatsoever in, on, about, or relating to
the Leased Premises during the Term, however caused, including without
limitation any use, misuse, possession, occupancy, or unoccupancy of the Leased
Premises by Subtenant, its shareholders, directors, officers, employees,
contractors, subcontractors, licensees, guests, invitees, successors,
affiliates, agents or assigns, during the Term, or any failure by Subtenant or
its shareholders, directors, officers, employees, contractors, subcontractors,
licensees, guests, invitees, successors, affiliates, agents or assigns to
perform and observe all obligations and conditions to be performed and observed
by Subtenant under this Sublease, and (c) any costs or expenses incurred or paid
by Sublandlord in connection with the foregoing, including reasonable attorneys’
fees and other costs and expenses in prosecuting or defending any of the
foregoing whether litigated or unlitigated.
Sublandlord
shall indemnify and save harmless Subtenant against and from any and all claims,
liabilities, losses, damages, injuries, costs, and expenses that hereafter may
occur or arise from or out of: (y) any failure by Sublandlord to
perform fully or observe any obligation or condition to be performed or observed
by Sublandlord under the Lease and this Sublease, and (z) any costs or expenses
incurred or paid by Subtenant in connection with the foregoing, including
reasonable attorneys’ fees and other costs and expenses in prosecuting or
defending any of the foregoing whether litigated or unlitigated.
Sublandlord
and Landlord shall not be liable to Subtenant for any losses, damages, injuries,
costs, or expenses whatsoever relating to the Leased Premises, including without
limitation any interruption or cessation of the business of Subtenant or loss
incurred as a consequence of damage to or destruction of the Leased Premises,
interruption or cessation of business of Subtenant caused by hackers or third
parties, or the failure of any such occupant or user to obtain power, internet
access, or other telecommunication services, unless any such losses, damages,
injuries, costs, expenses or failures are incurred through the negligence or
willful misconduct of Sublandlord or Landlord, or through Sublandlord’s default
under Sections 46(i) or 46(j) of this Sublease.
Sublandlord
and Subtenant shall defend all lawsuits (including without limitation
arbitrations and administrative proceedings) with respect to claims for losses,
costs,
expenses,
or damages for which it has indemnification obligations under this §18, and
shall pay all judgments and settlements relating thereto.
|
§19.
|
LIMITATION
OF LIABILITY
|
Notwithstanding
any provision in this Sublease to the contrary or any general rule of law, in no
event whatsoever shall either party or any shareholder, member, partner,
director, manager, officer, employee, agent, or other principal have any
personal liability whatsoever with respect to this Sublease. Any
liability of Sublandlord under this Sublease shall be enforced solely against
Sublandlord’s leasehold interest in the Real Property and no other assets of
Sublandlord shall be subject to this Sublease.
|
§20.
|
PERSONAL
PROPERTY
|
All
personal property of Subtenant used or located within the Leased Premises or in
the Building shall be at the sole risk of Subtenant. Sublandlord
shall not be liable for any accident or damages to property of Subtenant
resulting from the use or operation of elevators or of the heating, cooling,
electrical, mechanical, hydraulic, plumbing or other Building systems or
components, unless the same are caused by the negligence or willful misconduct
of Sublandlord. Sublandlord shall not be liable for damages to
property resulting from water, steam, or other causes, unless the same are
caused by the negligence or willful misconduct of Sublandlord.
Subtenant
shall pay, prior to delinquency, all taxes assessed against or levied upon its
occupancy of the Leased Premises or upon the fixtures, furnishings, equipment
and other personal property of Subtenant used or located within the Leased
Premises.
|
§21.
|
LIABILITY
RELATING TO SUBTENANT’S OPERATIONS
|
Sublandlord
assumes no liability or responsibility whatsoever with respect to the conduct
and operation of the business to be conducted in the Leased
Premises. Sublandlord shall not be liable for any accident or injury
to any person(s) or property in or about the Leased Premises which are caused by
the conduct and operation of that business or by virtue of equipment or property
of Subtenant in the Leased Premises. Subtenant agrees to defend,
indemnify and hold harmless Sublandlord and Sublandlord’s mortgagees against and
from all such claims (including reasonable attorneys’ fees). The
foregoing does not exculpate Sublandlord from its gross negligence, intended or
willful misconduct, or from Sublandlord’s breach or violation of Sections 46(i)
or 46(j) of this Sublease.
|
§22.
|
EVENTS
OF DEFAULT/REMEDIES UPON DEFAULT
|
Subtenant
hereby acknowledges that Sublandlord shall have any and all rights of default
that are granted to Landlord under the Lease to the extent of a default by
Subtenant under the terms and conditions of this Sublease which may include, but
are not limited to, the following:
|
(a)
|
failure
by Subtenant to make any payment of Rent to Sublandlord on or before the
date it is due and failure to cure such failure within five (5) days after
notice (which must be in writing as required under §31, below) from
Sublandlord to Subtenant describing such
failure;
|
|
(b)
|
failure
by Subtenant to make any other payment or perform or observe any other
obligation or condition to be performed or observed by Subtenant under
this Sublease and failure by Subtenant to correct such default within
thirty (30) days after Sublandlord gives Subtenant notice to do so or, if
because of the nature of such default it cannot be corrected within such
30-day period, failure by Subtenant to commence correction within such
30-day period and thereafter to expeditiously and continuously prosecute
the correction to completion;
|
|
(c)
|
assignment
or Sublease of any interest or rights of Subtenant under this Sublease,
except as permitted under §26; or
|
|
(d)
|
the
filing or execution or occurrence of any one or more of the
following:
|
|
(i)
|
petition
in bankruptcy by or against (which is not dismissed within sixty (60) days
after its filing) Subtenant;
|
|
(ii)
|
petition
or answer against Subtenant seeking a reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or relief relating
thereto, under any provision of the Bankruptcy Act or any statute of like
tenor or effect;
|
|
(iii)
|
adjudication
of Subtenant as a bankrupt or
insolvent;
|
|
(iv)
|
assignment
for benefit of creditors of Subtenant, whether by trust, mortgage, or
otherwise, or the execution of a composition agreement with Subtenant’s
creditors;
|
|
(v)
|
petition
or other proceeding by or against (which is not dismissed within sixty
(60) days after its filing) Subtenant for the appointment of a trustee,
receiver, guardian, conservator, or liquidator of Subtenant, with respect
to all or substantially all of Subtenant’s
property;
|
|
(vi)
|
petition
or other proceeding by or against (which is not dismissed within sixty
(60) days after its filing) Subtenant resulting in the dissolution or
termination of existence of Subtenant;
or
|
|
(vii)
|
the
creation of a lien upon Subtenant’s leasehold interest under this
Sublease, or any part thereof or any property of Subtenant materially
affecting or used in connection with Subtenant’s business located therein
upon execution, attachment, or other process of law or equity which is not
removed or bonded off within ten (10) business days of Subtenant’s receipt
of notice of same.
|
Immediately
upon the occurrence of any event of default or at any time thereafter, unless
that event of default has been cured prior to the expiration of any applicable
cure period or waived by Sublandlord in writing, Sublandlord may at its option
elect either to: (a)
continue
this Sublease in full force and effect notwithstanding the occurrence of such
event of default; (b) terminate this Sublease; or (c) continue this Sublease and
immediately re-enter and repossess (with or without a court order) the Leased
Premises including using so-called “self help” and recover from Subtenant an
amount equal to: (i) all unpaid Rent accruing hereunder prior to Sublandlord’s
actual recovery of possession of the Leased Premises, (ii) all other unpaid
amounts which were to have been paid by Subtenant to anyone hereunder prior to
Sublandlord’s actual recovery of possession of the Leased Premises, (iii)
Sublandlord’s costs of completing any improvements to the Leased Premises which
were uncompleted at the time of Subtenant’s default, (iv) Sublandlord’s damages
for Subtenant’s breach of this Sublease (including without limitation, damages
to Sublandlord resulting from lost rent during the remainder of what would
otherwise have been the Term, clean-up expenses, leasing commissions to real
estate brokers, legal expenses in connection with re-leasing the Leased
Premises, advertising and costs and expenses of any repair that may be
reasonably necessary (in Sublandlord’s opinion) in connection with re-leasing
the Leased Premises), (v) late charges, if any, due and unpaid under the
following paragraph, and (vi) interest on the foregoing amounts from the date of
Sublandlord’s election to terminate this Sublease until the date of payment at a
rate equal to four percent (4%) over the Prime Rate of Interest published in
The Wall Street
Journal (the “Default Rate”) from the date such payment was
due. Until such time as Sublandlord expressly elects to terminate
this Sublease as permitted under this section, this Sublease shall continue in
full force and effect notwithstanding the occurrence of such event of
default. In the event Sublandlord elects to so terminate this
Sublease, Subtenant thereupon shall be deemed to have assigned and transferred
to Sublandlord all unexpired insurance premiums, all deposits made with public
utilities, and all rights of Subtenant under all insurance
policies.
If
Subtenant fails to pay any Rent on or before the fifth day after notice from
Sublandlord to Subtenant stating such failure, Subtenant shall pay to
Sublandlord a late charge of five percent (5%) of the amount of such overdue
payment. In addition, any Rent not paid when due shall bear interest
at the Default Rate. Acceptance of the foregoing sums shall not
constitute a waiver of any event of default. Upon Sublandlord’s
receipt of any check from Subtenant which is dishonored for payment, Sublandlord
shall have the right to require Subtenant to make all future payments due to
Sublandlord hereunder by cash, certified or cashier’s check.
The
provisions of this section shall be cumulative in nature and nothing contained
in this section shall in any manner impair or otherwise affect adversely any
right, recourse, or remedy which otherwise would be available to Sublandlord at
law or in equity.
|
§23.
|
RIGHT
TO CURE DEFAULTS
|
If
Subtenant fails to perform and observe all obligations and conditions to be
performed and observed by it under this Sublease (after the expiration of any
applicable cure periods), then Sublandlord may, but shall not be obligated to,
cause the performance and observance of such obligations or conditions, and all
costs and expenses incurred by Sublandlord in connection therewith, including
without limitation reasonable attorneys’ fees, shall thereupon be due and
payable immediately from Subtenant to Sublandlord,
with
interest thereon from the time such costs and expenses were paid by Sublandlord
until Sublandlord is reimbursed in full by Subtenant at a rate equal to the
interest rate described in §22, above, which shall be deemed Additional Rent to
be paid by Subtenant to Xxxxxxxxxxx.
|
§00.
|
CUMULATIVE
RIGHTS AND REMEDIES
|
Each
right or remedy of Sublandlord under this Sublease or now or hereafter available
to Sublandlord by statute, at law, in equity, or otherwise shall be cumulative
and concurrent and shall be in addition to every other such right or remedy, and
neither the existence, availability, nor exercise of any one or more of such
rights or remedies shall preclude or otherwise affect the simultaneous or later
exercise by Sublandlord of any or all such other rights or
remedies.
|
§25.
|
HOLDING
OVER
|
If
Subtenant retains possession of the Leased Premises or any part thereof after
the expiration of the term of this Sublease, Subtenant shall pay to Sublandlord
Base Rent in an amount equal to one hundred fifty percent (150%) of the monthly
rate in effect immediately prior to the termination of the Term for the time
Subtenant remains in possession. Subtenant shall also pay the
Additional Rent as required under §4, above. In addition thereto,
Subtenant shall be liable to Sublandlord for all damages, incidental,
consequential, indirect, and direct sustained by reason of Subtenant's holding
over. The provisions of this section do not exclude Sublandlord's
rights of re-entry or any other right provided under this Sublease or available
at law or in equity. No such holding over shall be deemed to
constitute a renewal or extension of the term hereof; however, all other
provisions of this Sublease, including the payment of Additional Rent, shall
remain in full force and effect.
|
§26.
|
SUBLETTING
& ASSIGNMENT
|
Subtenant
may not assign or sublet the Leased Premises or any part thereof or transfer
possession or occupancy thereof to any person, firm or entity or transfer or
assign all or any part of this Sublease without Sublandlord’s prior consent,
which consent shall not be unreasonably conditioned, delayed or
withheld. To the extent Subtenant assigns, subleases or in any manner
transfer its interest under this Sublease without Sublandlord’s approval and
such transfer shall include the transfer of any shares of stock of the
shareholders of Subtenant or the transfer and sale of substantially all the
assets of Subtenant, Sublandlord shall have the right to declare Subtenant in
default under this Sublease.
Subtenant
acknowledges that Landlord shall have the right to assign or otherwise transfer
any or all of its rights under this Sublease without Subtenant’s
approval.
|
§27.
|
ACCESS
AND OTHER RIGHTS OF SUBLANDLORD
|
Emergency
situations notwithstanding, provided that during such time as Subtenant has an
individual or employee staffed and/or working at the Leased Premises,
Sublandlord agrees that it shall notify Subtenant’s employee or staff
representative upon entering or accessing the Leased Premises (the Parties
specifically agreeing that oral notification satisfies this notice requirement)
and Subtenant shall permit Sublandlord, its agents or employees, to enter the
Leased Premises at all times to examine, inspect or protect the Leased Premises
and to this end, Subtenant acknowledges that Sublandlord shall be permitted to
access the Leased Premises for the following: (i) to make such alterations,
inspections, perform inventory and make repairs to the mechanicals or equipment
servicing the Leased Premises; (ii) to exhibit the Leased Premises to
prospective subtenants during the last six (6) months of the Term ;(iii)
following the commencement of any action to evict Subtenant; (iv) to exhibit the
Leased Premises to prospective mortgagees, purchasers, brokers, and any other
interested parties at any time during the Term. Subtenant shall have
the right to accompany Sublandlord on each and every access to the Leased
Premises for any such reason provided however that in the event Subtenant is
unable or unavailable to accompany Sublandlord that Sublandlord shall have the
right to access the Leased Premises, and Sublandlord shall indemnify and hold
Subtenant harmless from any and all claims, actions, or damages only resulting
from any such entry into or on the Leased Premises by
Sublandlord. Sublandlord and Subtenant agree that to the extent
that Subtenant does not have an individual or employee staffed and/or working at
the Leased Premises, that Sublandlord is not obligated to notify Subtenant of
access to the Leased Premises for the foregoing items (i) to (iv) as provided in
this paragraph above.
In
addition to the foregoing, Subtenant acknowledges that Sublandlord shall have
the right at any time and without notice to Subtenant in the event of an
emergency to make all inspections, repairs, alterations, additions, and
improvements to the Building, including without limitation the Leased Premises,
as may be necessary or desirable for the safety, protection, or preservation of
the Leased Premises or the Building or Sublandlord’s interest therein or as may
be necessary or desirable for the operation or improvement of the
Building.
In
connection with this section, Subtenant acknowledges that Sublandlord shall have
the right to maintain a key (along with any key card or access codes) necessary
to access the Leased Premises and that Subtenant shall not change the locks or
other security access cards or codes to the Leased Premises without providing
Sublandlord with new keys and/or other access cards or codes necessary to enable
Sublandlord such access.
|
§28.
|
FINANCIAL
STATEMENTS
|
Not later
than thirty (30) days after written request from Sublandlord, Subtenant shall
deliver to Sublandlord and any prospective mortgagee or purchaser of the Real
Property, a copy of Subtenant’s financial statements for the most recently
completed fiscal year (“Subtenant’s Financial Statements”); provided, however,
that Subtenant shall not be required to provide Subtenant’s Financial Statements
to Sublandlord more than once per
calendar
year, unless the Subtenant’s Financial Statements are requested by Landlord or
Sublessor’s lender and/or requested by a potential purchaser of the Building, in
which case, Subtenant agrees to provide the same as
requested. Additionally, in the event Subtenant is in default of this
Sublease, Subtenant shall provide its Financial Statements upon demand from
Sublessor.
|
§29.
|
HAZARDOUS
MATERIALS
|
A. For
purposes of this Sublease: (i) “CERCLA” means The Comprehensive
Environmental Response, Compensation and Liability Act of 1980, as amended; (ii)
“Hazardous Material” or “Hazardous Materials” means and includes petroleum
(including, without limitation, gasoline, crude oil, fuel oil, diesel oil,
lubricating oil, sludge, oil refuse, oil mixed with wastes and any other
petroleum related product), flammable explosives, radioactive materials, any
substance defined or designated as a “hazardous substance,” under Sections
101(14) and 102 of CERCLA or any other materials defined or designated as
hazardous under any federal, state, or local statute, law, ordinance, code,
rule, regulation, order or decree; (iii) “Release” shall have the meaning given
such term, or any similar term, in Section 101(22) of CERCLA; and (iv)
“Environmental Law” or “Environmental Laws” shall mean any “Superfund” or “Super
Lien” law, or any other federal, state or local statute, law, ordinance, code,
rule, regulation, order or decree, regulating, relating to or imposing liability
or standards of conduct concerning any Hazardous Materials as may now or at any
time hereafter be in effect and as amended from time to time, including without
limitation, the following (amended or replaced from time to time) and all
regulations promulgated thereunder or in connection
therewith; CERCLA; the Superfund Amendments and Reauthorization Act
of 1986 (“XXXX”); The Clean Air Act (“CAA”); The Clean Water Act (“CWA”); The
Toxic Substances Control Act (“TSCA”); The Solid Waste Disposal Act (“SWDA”), as
amended by the Resource Conservation and Recovery Act (“RCRA”); and the
Occupational Safety and Health Act of 1970 (“OSHA”).
B. Subtenant
hereby covenants and agrees that (i) no activity shall be undertaken on the
Leased Premises, nor shall any activity be undertaken within the Building or on
the Real Property by Subtenant or its agents, employees, contractors, or
invitees, which would in any event cause (A) the Leased Premises or the Building
to become a hazardous waste treatment, storage or disposal facility regulated or
subject to regulation under any Environmental Law, (B) a Release of any
Hazardous Material into the environment at, on, in, under, above, through, or
surrounding the Leased Premises or the Building, or (C) the discharge of
pollutants or effluents into any water source or system, which would require a
permit under any federal law, state law, local ordinance or any other
Environmental Law pertaining to such matters; (ii) Subtenant shall at its sole
cost and expense comply with, and ensure compliance by its agents, employees,
contractors, or invitees with, all applicable Environmental Laws relating to or
affecting the Leased Premises, and Subtenant shall keep the Leased Premises free
and clear of any liens imposed pursuant to any applicable Environmental Laws
arising out of Subtenant’s use or occupancy of the Leased Premises, all at
Subtenant’s sole cost and expense; (iii) Subtenant will, at Subtenant’s sole
cost and expense, obtain and/or maintain all licenses,
permits
and/or other governmental or regulatory actions necessary to comply with all
applicable Environmental Laws (the “Permits”) and Subtenant at all times shall
remain in full compliance with the terms and provisions of the Permits; (iv)
Subtenant shall immediately give Sublandlord oral and written notice in the
event that Subtenant receives any communication from any governmental agency,
entity, or any other party with regard to Hazardous Materials on, from or
affecting the Leased Premises or the Building or on the Real Property or
otherwise with respect to Subtenant’s use and occupancy of the Leased Premises
or the operation of Subtenant’s business therein; and (v) Subtenant shall, at
Subtenant’s sole cost and expense, conduct and complete all investigations,
studies, sampling, and testing, and all remedial, removal, and other actions
necessary to clean up and remove all Hazardous Materials on, from or affecting
the Leased Premises or on the Real Property, or, where resulting from acts or
omissions of Subtenant or its agents, employees, contractors and invitees in
accordance with all applicable Environmental Laws.
C. Subtenant
hereby indemnifies Sublandlord and agrees to hold Sublandlord harmless from and
against any and all liens, demands, suits, actions, proceedings, disbursements,
liabilities, losses, litigation, damages, judgments, obligations, penalties,
injuries, costs, expenses (including, without limitation, attorneys’ and
experts’ fees) and claims of any and every kind whatsoever paid, incurred,
suffered by, or asserted against Sublandlord and/or the Leased Premises, the
Building or the Real Property for, with respect to, or as a direct or indirect
result of: (i) the Release or presence from, in, on, over or under
the Leased Premises of any Hazardous Materials regardless of quantity where
caused by Subtenant or its agents, employees or contractors; (ii) the Release or
presence from, in, on, over or under the Building or on the Real Property of any
Hazardous Materials regardless of quantity where caused by Subtenant or its
agents, employees or contractors; (iii) the violation of any Environmental Laws
relating to or affecting the Leased Premises, the Building or Real Property,
where caused by or within the control of Subtenant or its agents, employees,
contractors, invitees, or customers; and (iv) the failure by Subtenant to comply
fully with the terms and provisions of this section, provided that nothing
contained in this section shall make Subtenant liable or responsible for
conditions existing prior to the commencement of the Term of this Sublease or
first occurring after the expiration of the Term of this Sublease except where
caused by Subtenant or its agents, employees, contractors, invitees, or
customers.
D. Sublandlord
represents and warrants to the best of its knowledge that there are and will be
no Hazardous Materials in violation of any Environmental Laws in existence on
the Real Property or within the Building as of the Commencement
Date.
E. Sublandlord
hereby indemnifies Subtenant and agrees to hold Subtenant harmless against and
from any and all liens, demands, suits, actions, proceedings, disbursements,
liabilities, losses, litigation, damages, judgments, obligations, penalties,
injuries, costs, expenses (including without limitation, attorneys’ and experts’
fees) and claims of any kind whatsoever paid, incurred, suffered by, or asserted
against the Subtenant resulting from any Hazardous Materials: (i)
located on the Real Property or within the Building prior to the Commencement
Date, or (ii) disposed of or otherwise placed by Sublandlord, its employees,
agents, or contractors on the Real Property or within the Building during the
Term.
F. The
obligations and liabilities of Subtenant and Sublandlord under this section
shall survive the expiration of the Term or earlier termination of this
Sublease.
|
§30.
|
SIGNAGE
|
Subtenant
shall have the right to maintain signage on the door of the Leased Premises and
on the Building directory at Sublandlord’s cost and expense.
|
§31.
|
NOTICES
|
All
notices and other communications required or desired to be given to either party
under this Sublease shall be in writing and shall be deemed given when delivered
personally, telecopied (which is confirmed electronically) to that party at the
telecopy number for that party set forth below, three business days after having
been mailed by certified mail (return receipt requested) to that party at the
address for that party (or at such other address for such party as shall have
specified in a notice to the other party), or one day after having been
delivered to Federal Express, UPS, or any similar nationally-recognized express
delivery service for overnight delivery to that party at that
address:
If to
Subtenant: iBeam
Solutions LLC
00 Xxxxx
Xxxx Xxxxxx
Xxxxx
Xxxxxxxxxx, Xxxx 00000
Attention: Xxxx
X. Xxxxxxx
Telecopy
No. (000) 000-0000
with a
copy
to: Xxxxxxx
Xxxxxx LLC
000 Xxxxx
Xxxxxx Xxxxxx
Xxxxxxxx,
Xxxx 00000
Attention: Xxxxxxxxxxx
X. Xxxxxxxx
Telecopy
No. (000) 000-0000
If to
Sublandlord: Data
Center 101 LLC
000 X.
Xxxx Xx., Xxxxx 000
Xxxxxxxx,
Xxxx 00000
Attention: Xxxxxxxx
Xxxxxxxx
Telecopy
No. (000) 000-0000
with a
copy
to: Wiles,
Boyle, Xxxxxxxxxx & Bringardner, Co. L.P.A.
000
Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx,
Xxxx 00000
Attention: Xxxxx
X. Xxxxx
Telecopy
No. (000) 000-0000
|
§32.
|
SURVIVAL
OF OBLIGATIONS
|
No
termination of this Sublease and no repossession of the Leased Premises or any
part thereof shall relieve Sublandlord or Subtenant of their liabilities and
obligations hereunder, all of which shall survive such termination or
repossession.
|
§33.
|
MEMORANDUM
OF SUBLEASE
|
This
Sublease shall not be recorded; however, at the request of either Sublandlord or
Subtenant, the other party shall execute, acknowledge, and deliver a memorandum
of this Sublease (which would exclude all economic terms of this Sublease) for
purposes of giving public notice of the rights and obligations of Sublandlord
and Subtenant under this Sublease.
|
§34.
|
Non-Waiver
|
No
failure by Sublandlord or Subtenant to exercise any option hereunder or to
enforce its rights or seek its remedies upon any default, and no acceptance by
Sublandlord of any rent accruing before or after any default, shall effect or
constitute a waiver of Sublandlord’s rights to exercise that option, enforce
that right, or seek that remedy with respect to that default or any prior or
subsequent default.
|
§35.
|
NO
THIRD PARTY BENEFIT
|
This
Sublease is intended for the benefit of Landlord and Subtenant and, except as
otherwise provided in this Sublease, their respective successors and assigns,
and nothing contained in this Sublease shall be construed as creating any rights
or benefits in or to any third party.
|
§36.
|
SEVERABILITY
|
The
intention of the parties to this Sublease is to comply fully with all laws
governing leases, and this Sublease shall be construed consistently with all
such laws to the extent possible. If and to the extent that any court
of competent jurisdiction is unable to so construe part or all of any provision
of this Sublease, and holds that part or all of that provision to be invalid,
such invalidity shall not affect the balance of that provision or the remaining
provisions of this Sublease, which shall remain in full force and
effect.
|
§37.
|
GOVERNING
LAW; VENUE
|
This
Sublease has been negotiated and executed in the State of Ohio and relates to
real property located in the State of Ohio.
All
questions concerning the validity or intention of this Sublease shall be
resolved under the laws of the State of Ohio. The parties to this
Sublease hereby designate the Court
of Common
Pleas of Franklin County, Ohio, as the court of proper jurisdiction and
exclusive venue for any actions or proceedings relating to this Sublease; hereby
irrevocably consent to such designation, jurisdiction and venue; and hereby
waive any objections or defenses relating to jurisdiction or venue with respect
to any action or proceeding initiated in the Court of Common Pleas of Franklin
County, Ohio.
|
§38.
|
EXHIBITS
|
All
exhibits attached to this Sublease are incorporated herein by
reference.
|
§39.
|
COMPLETE
AGREEMENT
|
This
document (with its exhibits, which are hereby incorporated herein by reference)
contains the entire Sublease between the parties and supersedes any prior
discussions, representations, warranties, or agreements between them respecting
the subject matter. No changes, alterations, modifications,
additions, or qualifications to this Sublease shall be made or be binding unless
made in writing and signed by each of the parties.
|
§40.
|
COUNTERPARTS
|
This
Sublease may be executed in several counterparts and each executed counterpart
shall be considered an original of this Sublease.
|
§41.
|
GENDERS
AND NUMBERS
|
When the
context permits, each pronoun used in this Sublease includes pronouns of the
same person in other genders or numbers and each noun used in this Sublease
includes the same noun in different numbers. All references to
Subtenant under this Sublease shall mean, and be construed only in the context
of, Subtenant acting as a Subtenant of the Leased Premises and not in its
capacity as a member of Xxxxxxxxxxx.
|
§00.
|
TIME
OF THE ESSENCE
|
The time
for payment of Rent and all other amounts to be paid by Subtenant under this
Sublease and for performance and observance of all other obligations and
conditions to be performed or observed by Subtenant under this Sublease shall be
of the essence of this agreement.
|
§43.
|
CAPTIONS
|
The
captions at the beginnings of the sections of this Sublease are not part of the
context of this Sublease, but are merely labels to assist in locating those
sections, and shall be ignored in construing this Sublease.
|
§44.
|
SUCCESSORS
IN INTEREST
|
Except as
otherwise provided in this Sublease, all provisions of this Sublease shall be
binding upon, inure to the benefit of, and be enforceable by and against the
respective heirs, personal representatives, successors, and assigns of each
party to this Sublease.
|
§45.
|
RIGHT
OF FIRST REFUSAL
|
If
Sublandlord receives a bona fide offer from a third party to sublease all or any
part of the remainder of the Building during the Term of this Sublease, or any
extension or renewal hereof, which offer Sublandlord desires to accept,
Sublandlord shall, before accepting such offer, notify Subtenant in writing of
all the terms and conditions thereof, including, without limitation, the square
footage, term, base rent, and percentage rent of the proposed sublease, and
shall first offer to Subtenant that portion of the Premises identified in such
notice to Subtenant upon the same terms and conditions. Upon receipt
of any such notice and offer from Sublandlord, Subtenant shall have ten (10)
business days thereafter within which to accept the same. Should
Subtenant fail to accept any such offer within said ten (10) business day
period, Sublandlord shall be free to sublease the Premises to the sublessee
identified in its notice to Subtenant. In the event Subtenant
declines such right of first refusal for any portion of the Building and
Sublandlord subsequently fails to enter into a sublease on such terms and
conditions as conveyed to Subtenant, Subtenant’s right of first refusal shall
automatically renew and remain in effect thereafter.
|
§46.
|
SUBLANDLORD’S
WARRANTIES
|
Sublandlord
hereby represents and warrants to Subtenant as follows:
(a) Attached
hereto as Exhibit G is a true and accurate copy of the Lease, and the same has
not been amended, modified or terminated;
(b) Sublandlord
has received no notice of any claims by Landlord that Sublandlord is in default
or breach of any provision of the Lease, and the Lease is in full force and
effect;
(c) Sublandlord
has received no notice of any violation of any federal, state or local
ordinance, statute, law, rule, regulation or requirement (the “Laws”) affecting
the Premises, the Building or any portion thereof, nor does Sublandlord have
knowledge of any condition or circumstance which would constitute a violation of
the Laws;
(d) Sublandlord
shall: (i) perform and observe all of the terms, conditions, covenants,
provisions and agreements of the Lease on Sublandlord’s part to be performed,
and (ii) except as otherwise set forth in this Sublease to the contrary, not do
or not cause to be done or suffer or permit any act or thing to be done which
would or might cause the Lease or the rights of Sublandlord as tenant thereunder
to be cancelled, terminated or forfeited;
(e) Sublandlord
shall, upon its receipt of written notice from Subtenant of the exercise of
either or both of the Option Terms, timely and validly exercise its option to
extend the Term of the Lease for each corresponding time period;
(f) Sublandlord
has received written approval from Landlord of this Sublease, a copy of which is
attached hereto as Exhibit H;
(g) Sublandlord
has received no notice or claim that Sublandlord is in default or breach of any
provision of any of the Service Contracts, and all of the Service Contracts are
in full force and effect;
(h) Sublandlord
shall, from the date hereof until and including the Effective Date of the
Assignment and Assumption of Service Contracts attached hereto as Exhibit F, (i)
perform and observe all of the terms, conditions, covenants, provisions and
agreements of the Service Contracts, and (ii) not do or not cause to be done or
suffer or permit any act or thing to be done which would or might cause the
Service Contracts, or any of them, or the rights of Sublandlord thereunder to be
cancelled, terminated or forfeited;
(i) Sublandlord
shall, at all times hereunder, maintain and provide to the Leased Premises dual
power feeds from not less than two (2) independent sources/providers (i.e.,
American Electric Power and Columbus Public Utilities), and Sublandlord shall
present evidence of same upon written request by Subtenant; and
(j) Sublandlord
shall, at all times hereunder, maintain and provide to the Leased Premises not
less than three (3) independent carriers or providers of bandwidth for internet
access, and Sublandlord shall present evidence of same upon written request
by Subtenant.
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§47.
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ASSIGNMENT
AND ASSUMPTION OF SERVICE CONTRACTS
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In
addition to the sublease of the Leased Premises, Sublandlord shall assign to
Subtenant all of Sublandlord’s right, title, and interest in and to Service
Contracts associated with the Leased Premises pursuant to the terms and
conditions of that certain Assignment and Assumption of Service Contracts of
even date herewith, a copy of which is attached hereto as Exhibit
F. A true and accurate copy of each and every Service Contract is
attached to the Assignment and Assumption of Service Contracts, and the same are
incorporated herein by this reference. However, Subtenant and
Sublandlord agree that to the extent that Subtenant is in default under this
Sublease beyond all applicable cure periods, that the Service Contracts shall be
immediately assigned, transferred and conveyed from Subtenant to Sublandlord and
Subtenant agrees that Subtenant shall provide written notice to all parties to
the Service Contracts that Sublandord is the party to whom all payments shall be
made under the various Service Xxxxxxxxx.
§00 OBLIGATION
TO SUBLANDLORD OR LANDLORD’S LENDER.
Subtenant acknowledges that Sublandlord
is borrowing the funds necessary to complete Subtenant’s Improvements pursuant
to paragraph nine (9) of this Sublease and that Subtenant’s payment of all
monetary obligations in this Sublease may be used in part by Sublandlord to
remit payment to Sublandlord’s lending obligations relative to the funds
borrowed from Sublandlord’s lender to complete Subtenant’s
Improvements. To this end, in the event that Subtenant defaults on or before the
expiration of the third full lease year under
this Sublease, which directly causes Sublandlord to be in default of its loan
obligations with its lender relative to the Subtenant Improvements, then
Sublandlord’s lender shall have the right to seek payment from Subtenant and
pursue any claims necessary against Subtenant in an amount equal to the default
by Sublandlord with its lender as a result of the default of Subtenant under
this Sublease.
§49. SUBLANLDORD
CUSTOMERS.
Subtenant acknowledges that prior to
the execution of this Sublease that Sublandlord or Landlord have certain
contractual agreements with their customers whereby such customers use and have
access to the third floor of the Building, such customers of Sublandlord or
Landlord being, University Manors, LLC, 383, Inc. and Construction One,
Inc. Subtenant agrees that it shall not have the right to service the
aforementioned customers of Sublandlord and that it shall not have the right to
receive any revenue from the aforementioned customers and that the
aforementioned customers are that of Sublandlord. In the event
Subtenant violates this provision of the Sublease, the same shall constitute and
event of default herein. Sublandlord agrees to remove and relocate
University Manors, LLC, 383, Inc. and Construction One, Inc. on or before
occupancy of the Leased Premises by Subtenant and in the event University
Manors, LLC, 383, Inc. and Construction One, Inc. are not removed from the
Leased Premises on or before April 10, 2009 then Subtenant shall be entitled to
revenue generated to Sublandlord by University Manors, LLC, 383, Inc. and
Construction One, Inc. for each day University Manors, LLC, 383, Inc. and
Construction One, Inc. occupies the Leased Premises after April 10,
2009.
[Remainder of Page Intentionally Left
Blank]
IN
WITNESS WHEREOF, the parties have entered into this Sublease as of the date
first above written.
|
Data Center 101,
LLC,
an
Ohio limited liability company
|
iBeam Solutions
LLC,
an Ohio limited liability company
|
| By: | By: |
| Name: | Name: Xxxx X. Xxxxxxx |
| Title: | Title: President |
ACKNOWLEDGMENTS
|
STATE
OF
OHIO )
|
|
| )SS | |
|
COUNTY
OF )
|
The foregoing instrument was
acknowledged before me this ___ day of ________, 20 __ by
______________________, the _________________ of Data Center 101, LLC, an Ohio
limited liability company, on behalf of such company.
| Notary Public |
|
STATE
OF
OHIO )
|
|
| )SS | |
|
COUNTY
OF )
|
The foregoing instrument was
acknowledged before me this ___ day of ________, 20 __ by Xxxx X. Xxxxxxx,
President of iBeam Solutions LLC, an Ohio limited liability company, on behalf
of such company.
| Notary Public |
EXHIBIT
A – DRAWING OF LEASED PREMISES
[Upon
completion this Exhibit will contain a drawing depicting the location of the
Leased Premises]
EXHIBIT
B – DESCRIPTION OF REAL PROPERTY
[Upon
completion this Exhibit will contain the legal description of the Real
Property]
EXHIBIT
C - RULES AND REGULATIONS
The use
of the Leased Premises and the Common Areas by Subtenant and Subtenant's agents,
employees, servants, visitors, and invitees shall be subject to the following
rules and regulations:
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1.
|
All
loading and unloading of goods shall be done only at such times, in the
areas and through the entrances as shall be designated from time to time
for such purposes by Sublandlord as Sublandlord shall
designate.
|
|
2.
|
Except
as permitted in a Subtenant's Sublease of the Leased Premises or except as
permitted by Sublandlord's prior written consent, no person shall within
the Common Areas:
|
|
|
(a)
|
Vend,
peddle or solicit orders for sale or distribution of any merchandise,
device, service, periodical, book, pamphlet or other matter
whatsoever;
|
|
|
(b)
|
Exhibit
any sign, placard, banner, notice or other written
material;
|
|
|
(c)
|
Distribute
any circular, booklet, handbill, placard or other
materials;
|
|
|
(d)
|
Solicit
membership in any organization, group or association or contribution for
any purpose;
|
|
|
(e)
|
Parade,
patrol, picket, demonstrate or engage in any conduct that might tend to
interfere with or impede the use of the Common Areas by Sublandlord or any
occupant or any employee, or invitee of any occupant of the Building, Real
Property and Common Areas, create a disturbance, attract attention or
harass, annoy, disparage, or be detrimental to the interests of any
business establishments within the Building, Real Property and Common
Areas;
|
|
|
(f)
|
Use
the Common Areas for any purpose when none of the business establishments
within the Building, Real Property and Common Areas is open for business
or employment;
|
|
|
(g)
|
Throw,
discard or deposit any paper, glass or extraneous matter of any kind,
except in designated receptacles, or create litter or hazards of any kind
(Subtenant agrees to crush boxes and deposit in trash
container);
|
|
|
(h)
|
Deface,
damage or demolish any sign, light standard or fixture, landscaping
material or other improvements within, or property situated within the
Building, Real Property and Common Areas;
and
|
|
|
(i)
|
Solicit
any other business or display any
merchandise.
|
|
3.
|
No
portion of the Common Areas or the Building, Real Property shall be used
for any lodging or illegal
purposes.
|
|
4.
|
The
sidewalks, halls, passages, exits, entrances, and stairways of the Common
Areas or the Building and Real Property shall not be obstructed by any
Subtenant or used by any Subtenant for any purpose other than for ingress
to and egress from their respective Leased Premises. No Subtenant and no
employee or invitee of any Subtenant shall go upon the roof of any
building in the Building, Real Property and Common Areas except for the
sole purpose of servicing its air conditioning units or rooftop
equipment.
|
|
5.
|
In
the case of any invasion, mob, riot, public excitement or other
circumstances rendering such action advisable in Sublandlord's sole
discretion, Sublandlord reserves the right to prevent access to the Leased
Premises during the continuance of the same by such action as Sublandlord
may deem appropriate, including closing entrances to the Leased
Premises.
|
|
6.
|
No
Subtenant shall place or permit any radio or television antenna,
loudspeaker, amplifier or other device in the Common Areas or where the
same can be seen or heard in the Common Areas without the prior written
consent of Sublandlord.
|
|
7.
|
No
person shall use any part of the Common Areas for any purpose other than
those for which the Common Areas is
intended.
|
|
8.
|
No
Subtenant shall make any alteration, addition or improvement to or remove
any portion of the Common Areas.
|
|
9.
|
Sublandlord
may waive any one or more of these rules and regulations for the benefit
of any particular Subtenant or lessee, but no such waiver by Sublandlord
shall be construed as a waiver of such rules and regulations in favor of
any other Subtenant or lessee, nor prevent Sublandlord from thereafter
enforcing any such rules and regulations against any or all other
Subtenants of the Building and Common Areas. Sublandlord shall
at all times have the right to change these rules and regulations or to
promulgate other rules and regulations in such manner as may be deemed
advisable for safety, care, or cleanliness of the Building and Common
Areas, for preservation of good order therein, or for other purposes, all
of which rules and regulations, changes and amendments shall be carried
out and observed by Subtenant. Subtenant shall further be
responsible for the compliance with these rules and regulations by the
employees, servants, agents, visitors and invitees of
Subtenant. In the event any provisions of these rules and
regulations shall conflict with any specific provisions of the Sublease
Agreement to which this Exhibit is attached, the provisions of the
Sublease Agreement shall control.
|
EXHIBIT
D – COMPLETION OF SUBTENANT IMPROVEMENT PLANS
|
1.
|
Within
______ (__) days after the execution of this Sublease, Subtenant shall
notify Sublandlord in writing of the identity and mailing address of the
Subtenant Improvement Architect and the Subtenant Improvement Engineer, if
any, which Subtenant has engaged for the preparation of the Subtenant
Improvements Plans.
|
|
2.
|
Within
______ (__) days after the designation of the Subtenant Improvement
Architect and Subtenant Improvement Engineer, if any, Subtenant shall
submit to Sublandlord for Sublandlord’s approval, the Preliminary Plans
and Specifications for Subtenant Improvements showing the desired design
character and finish of the Subtenant Improvements. The Preliminary Plans
and Specifications for Subtenant Improvements and shall
include:
|
|
(a)
|
Floor/fixture
plan layout.
|
|
(b)
|
Concept
plan for HVAC system and equipment layout, duct distribution, system and
diffuser locations.
|
|
(c)
|
Concept
plan for power and lighting systems and equipment layouts, including
indication of system components.
|
|
3.
|
As
soon as reasonably practicable after receipt of the Preliminary Plans and
Specifications for Subtenant Improvements, Sublandlord shall return to
Subtenant written review comments and/or one set of prints with its
suggested modifications and/or approval, which approval shall not be
unreasonably withheld, conditioned or delayed. If Subtenant disagrees with
Sublandlord's comments, Subtenant may do so in writing within [fifteen
(15)] days of receipt of Sublandlord's comments. Unless Subtenant responds
within such fifteen [(15) day] period, Subtenant shall be deemed to have
accepted all suggested
modifications.
|
|
4.
|
If
the Preliminary Plans and Specifications for Subtenant Improvements is
returned to Subtenant with comments, Subtenant may elect to revise and
resubmit the Preliminary Plans and Specifications for Subtenant
Improvements to Sublandlord within [fifteen (15)] days of receipt by
Subtenant, or incorporate changes into its next
submittal.
|
|
5.
|
Promptly
following the date on which the Preliminary Plans and Specifications for
Subtenant Improvements bearing Sublandlord's approval (with or without
suggested modifications) are returned to Subtenant, Subtenant, at its sole
cost and expense, shall cause the Subtenant Improvement Architect or
designer (and if applicable the Subtenant Improvement Engineer) to prepare
working drawings and specifications for the Subtenant
|
Improvements based on the Preliminary Plans and Specifications for Subtenant
Improvements approved by Sublandlord.
|
6.
|
Upon
completion of the Subtenant Improvements Plans, the Subtenant Improvement
Architect or designer (and if applicable the Subtenant Improvement
Engineer) shall submit to Sublandlord three (3) sets of Plans and
Specifications for Subtenant Improvements for Sublandlord's final
approval, which Sublandlord agrees not to unreasonably withhold, delay or
condition provided the same are substantially in compliance with the
Preliminary Plans and Specifications for Subtenant
Improvements.
|
|
7.
|
Sublandlord
shall review the proposed final Plans and Specifications for Subtenant
Improvements and shall notify Subtenant, within [fifteen (15)] days of
receipt of the proposed final Plans and Specifications for Subtenant
Improvements, of the matters, if any, in which the proposed final Plans
and Specifications for Subtenant Improvements do not in a material or
substantial manner conform to the Preliminary Plans and Specifications
and/or Subtenant Design Criteria. Sublandlord's approval of the proposed
final Plans and Specifications for Subtenant Improvements shall not be
unreasonably withheld, conditioned or delayed and by agreement it is
stipulated it would be unreasonable for Sublandlord to withhold, condition
or delay its approval to the same unless the proposed final Plans and
Specifications for Subtenant Improvements vary in a material and/or
substantial manner for the Preliminary Plans and Specification and/or
Subtenant Design Criteria,. Subtenant shall, within [ten (10)]
days of receipt of Sublandlord's response, cause the proposed final Plans
and Specifications for Subtenant Improvements to be revised as required to
obtain Sublandlord's approval and shall resubmit the proposed final Plans
and Specifications for Subtenant Improvements for Sublandlord's approval
within such [ten (10)] day period. When Sublandlord has approved the
proposed final Plans and Specifications for Subtenant Improvements,
Sublandlord shall initial and return one (1) set of approved final Plans
and Specifications for Subtenant Improvements to Subtenant, which set
shall also show the date of Sublandlord's approval. Subtenant shall not
commence the Subtenant Work until Sublandlord has approved the final Plans
and Specifications for Subtenant
Improvements.
|
|
8.
|
In
the event after ______ (__) days following the day Subtenant notifies
Sublandlord of the designation of the Subtenant Improvement Architect and
Subtenant Improvement Engineer, if applicable Sublandlord and Subtenant
are unable in the exercise of good faith to come to an agreement on the
final Subtenant Improvements Plans, either Sublandlord or Subtenant may
terminate this Sublease by written notice to the other of such
election.
|
EXHIBIT E
– SUBLANDLORD WORK SCHEDULE
