Exhibit 10.7
MAINSPRING CAPITAL, L.L.C.
COMMERCIAL LEASE
BEL DE MAR, L.L.C., an Arizona limited liability company
"Landlord"
AND
Limelight Networks, Inc. a Delaware Corporation
"Tenant"
SUMMARY OF LEASE TERMS*
Date: December 1, 2004
Lease Number: ______________________________________________
Project: Airway Corporate Center
Square Footage: 7,529 (approximately)
Address: 0000 X. 00xx Xxxxxx, Xxxxx, Xxxxxxx 00000
Term: Five (5) years
Base Rental Schedule: Rate
Months (per s.f.) Base Rent
------- ---------- ------------------------
1 - 6 $0.35 $2,635.15 per month NNN*
7 - 12 $0.70 $5,270.30 per month NNN*
13 - 24 $0.75 $5,646.75 per month NNN*
25 - 36 $0.80 $6,023.20 per month NNN*
37 - 48 $0.81 $6,098.49 per month NNN*
49 - 60 $0.83 $6,249.07 per month NNN*
* Plus applicable rental tax.
Current Rental Tax
Rate: 2.3%
Current Estimated
Operating Expenses: $0.22 per square foot per month
Other Items: ______________________________________________
______________________________________________
NOTE: This summary is provided for the Tenant's convenience only. It is not to
be construed as a part of the above referenced Lease Agreement. In the
event that there is a conflict between this summary of lease terms and the
Lease Agreement, the language in the Lease Agreement shall prevail.
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STANDARD LEASE AGREEMENT
PHXINDNII DATE December 23, 2004
LEASE AGREEMENT
THIS LEASE AGREEMENT, made and entered into by and between BEL DE MAR, L.L.C.,
AN ARIZONA LIMITED LIABILITY COMPANY, hereinafter referred to as "Landlord", and
LIMELIGHT NETWORKS, INC. A DELAWARE CORPORATION., hereinafter referred to as
"Tenant";
WITNESSETH:
1. PREMISES AND TERM. In consideration of the mutual obligations of Landlord and
Tenant set forth herein, Landlord leases to Tenant, and Tenant hereby takes from
Landlord the Premises situated within the County of MARICOPA, State of ARIZONA,
more particularly described on Exhibit "A" attached hereto and incorporated
herein by reference, (the "Premises"), together with all rights, privileges,
easements, appurtenances, and amenities belonging to or in any way pertaining to
the Premises, to have and to hold, subject to the terms, covenants and
conditions of this Lease. The term of this Lease shall commence on the
commencement date hereinafter set forth and shall end on JANUARY 31, 2010. If
this Lease is executed before the Premises become vacant or otherwise available
and ready for occupancy, or if any present Tenant or occupant of the Premises
holds over, and Landlord cannot acquire possession of the Premises prior to the
date recited as the commencement date of this Lease, Landlord shall not be
deemed in default hereunder, and Xxxxxx agrees to accept possession of the
Premises at such time as Landlord is able to tender the same, which date shall
thenceforth be deemed the "commencement date", and Landlord hereby waives
payment of rent covering any period prior to the tendering of possession to
Tenant hereunder.
A. EXISTING BUILDING. If no improvements are to be constructed to the
Premises, the commencement date shall be FEBRUARY 1, 2005. Tenant acknowledges
that, (i) it has inspected and accepts the Premises, (ii) the buildings and
improvements comprising the same are suitable for the purpose for which the
Premises are leased, (iii) the Premises are in good and satisfactory condition,
and (iv) no representations as to the repair of the Premises, nor promises to
alter, remodel or improve the Premises have been made by Landlord (unless
otherwise set forth in the Lease). In no event shall Landlord be liable for any
defects in the Premises or for any limitation on its use. Upon request by
Xxxxxxxx, Xxxxxx shall execute and deliver to Landlord a Letter of Acceptance of
delivery of the Premises.
B. BUILDING TO BE CONSTRUCTED OR SHELL SPACE. If the Premises or part
thereof are to be constructed, the commencement date shall be deemed to be the
sooner of the date upon which the Premises and other improvements to be erected
in accordance with the plans and specifications described on Exhibit "C"
attached hereto and incorporated herein by reference (the "Plans") have been
substantially completed or the date upon which the Tenant takes occupancy. As
used herein, the term "substantially completed" shall mean, that in the opinion
of the architect or space planner that prepared the Plans, such improvements
have been completed in accordance with the Plans and the Premises are in good
and satisfactory condition, subject only to completion of minor punch list
items. As soon as such improvements have been substantially completed, Landlord
shall notify Tenant in writing that the commencement date has occurred. Within
ten (10) days thereafter, Tenant shall submit to Landlord in writing a punch
list of items needing completion or correction. Landlord shall use reasonable
efforts to complete such items within thirty (30) days after the receipt of such
notice. In the event Tenant, its employees, agents or contractors cause
construction of such improvements to be delayed, the commencement date shall be
deemed to be the date that, in the opinion of the architect or space planner
that prepared the Plans, substantial completion would have occurred if such
delays had not taken place. The taking of possession by Tenant shall be deemed
to conclusively establish that the buildings and other improvements had been
completed in accordance with the Plans, that the Promises are in good and
satisfactory condition as of when possession was taken, and that Tenant has
accepted such buildings and other improvements without representation or
warrant) from Landlord. Upon Xxxxxxxx's request, Xxxxxx shall execute and
deliver to Landlord a Letter of Acceptance of delivery of the Premises.
2. BASE RENT, SECURITY DEPOSIT AND OPERATING EXPENSE PAYMENTS.
A. BASE RENT. Tenant agrees to pay Landlord base rent ("Base Rent") for the
Premises, in advance, without demand, deduction or set off, at the rate of TWO
THOUSAND SIX HUNDRED THIRTY-FIVE AND 15/100 DOLLARS ($2,635.15)* PER MONTH
DURING MONTHS ONE (1) THROUGH SIX (6) OF THE INITIAL LEASE TERM, FIVE THOUSAND
TWO HUNDRED SEVENTY AND 30/100 DOLLARS ($5,270.30)* PER MONTH DURING MONTHS
SEVEN (7) THROUGH TWELVE (12) OF THE INITIAL LEASE TERM, FIVE THOUSAND SIX
HUNDRED FORTY-SIX AND 75/100 DOLLARS ($5,646.75)* PER MONTH DURING MONTHS
THIRTEEN (13) THROUGH TWENTY-FOUR (24) OF THE INITIAL LEASE TERM, SIX THOUSAND
TWENTY-THREE AND 20/100 DOLLARS ($6,023.20)* PER MONTH DURING MONTHS TWENTY-FIVE
(25) THROUGH THIRTY-SIX (36) OF THE INITIAL LEASE TERM, SIX THOUSAND
NINETY-EIGHT AND 49/100 DOLLARS ($6,098.49)* PER MONTH DURING MONTHS
THIRTY-SEVEN (37) THROUGH FORTY-EIGHT (48) OF THE INITIAL LEASE TERM AND SIX
THOUSAND TWO HUNDRED FORTY-NINE AND _7/100 DOLLARS ($6,249.07)* PER MONTH DURING
MONTHS FORTY-NINE (49) THROUGH SIXTY (60) OF THE INITIAL LEASE TERM, per month
during the term hereof. One such monthly installment, plus the other monthly
charges set forth in Paragraph 2.C below,
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shall be due and payable on the date hereof and a like monthly installment shall
be due and payable on or before the first day of each calendar month succeeding
the commencement date, except that all payments due hereunder for any fractional
calendar month shall be prorated. The obligation of Tenant to pay Base Rent and
other sums to Landlord and the obligations of Landlord under this Lease are
independent obligations. Tenant shall have no right at any time to xxxxx,
reduce, or set-off any rent due hereunder except where expressly provided in
this Lease. Tenant waives and releases all statutory liens and off-set rights as
to rent.
B. SECURITY DEPOSIT. In addition, Xxxxxx agrees to deposit with Landlord on
the date hereof the sum of SEVEN THOUSAND THREE HUNDRED AND 00/100 DOLLARS
($7,300.00). which shall be held by Landlord, without obligation for interest,
as security for the performance of Tenant's obligations under the Lease, it
being expressly understood and agreed that this deposit is not an advance rental
deposit or a measure of Landlord's damages in case of Xxxxxx's default. Upon
each occurrence of an event of default, Landlord may use all or part of the
deposit to pay rent or other payments due Landlord under this Lease, and the
cost of any other damage, injury, expense or liability caused by such event of
default without prejudice to any other remedy provided herein or provided by
law. On demand, Tenant shall pay Landlord the amount that will restore the
security deposit to the full amount required by this Lease. If the Base Rent
increases during the term of this Lease, Tenant shall, upon written request from
Landlord, deposit additional monies with Landlord so that the total amount of
the Security Deposit shall at all times bear the same proportion to the
increased Base Rent as the initial Security Deposit bore to the initial Base
Rent. Should the Use be amended to accommodate a material change in the business
of Tenant or to accommodate a Tenant or assignee, Landlord shall have the right
to increase the Security Deposit to the extent necessary, in Landlord's
reasonable judgment, to account for any increased wear and tear that the
Premises may suffer as a result thereof. The security deposit shall be deemed
the property of Landlord and Landlord shall not be required to keep the Security
Deposit separate from its general accounts, but any remaining balance of such
deposit shall be returned by Landlord to Tenant within thirty (30) days from the
time Tenant's obligations under this Lease have been fulfilled, less a
refurbishment fee equal to fifteen percent of the total deposit.
C. OPERATING EXPENSE PAYMENTS. During each month of the Lease Term, on the
same date that Base Rent is due, Xxxxxx agrees to pay to Landlord as additional
rent an amount equal to one-twelfth of the amount, as estimated by Xxxxxxxx, of
Tenant's Proportionate Share (hereinafter defined) of Operating Expenses for the
Project. Payments thereof for any fractional calendar month shall be prorated.
The term "Operating Expenses" means all costs and expenses incurred by Landlord
with respect to the ownership, maintenance, and operation of the Project
including, but not limited to costs of Taxes (hereinafter defined) and fees
payable to tax consultants and attorneys for consultation and contesting taxes;
insurance; utilities (subject to the other provisions of this Lease regarding
utilities) maintenance, repair and replacement of all portions of the Project,
including without limitation, paying and parking areas, roads, roofs, alleys,
and driveways, mowing, landscaping, exterior painting, utility lines, mechanical
systems, and amounts paid to contractors and subcontractors for work or services
performed in connection with any of the foregoing; charges or assessments of any
association of which the Project is subject; property management fees payable to
a property manager, including any affiliate of Landlord, or if there is no
property manager, an administration fee of fifteen percent (15%) of Operating
Expenses payable to Landlord; security services, if any; trash collection,
sweeping and removal; and additions, alterations or replacements made by
Landlord at Landlord's sole discretion to the Project in order to comply with
applicable laws or codes as amended from time to time or that are appropriate to
the continued operation of the Project, provided that the cost of such
additions, alterations, or replacements that are required to be capitalized for
federal income tax purposes shall be amortized on a straight line basis over a
period equal to the lesser of the useful life thereof for federal income tax
purposes or ten (10) ten years. Operating Expenses do not include debt service
under mortgages or ground rent under ground leases, costs of restoration to the
extent of net insurance proceeds received by Landlord with respect thereto,
leasing commissions, renovating of space for tenants, or depreciation or
amortization except as provided above.
The monthly estimated Operating Expense payments may be increased or decreased
by Landlord from time to time to reflect the projected actual cost of all such
items. If the Tenant's total payments for any year are less that Tenant's
Proportionate Share of actual operating costs for such year, Tenant shall pay
the difference to Landlord within ten (10) days after demand. If the total
payments of Tenant for any year are more than Tenant's Proportionate Share of
actual operating costs for such year, Landlord shall retain such excess and
credit it against Tenant's next payments. For purposes of calculating Tenant's
Proportionate Share of Operating Expenses, a year shall mean a calendar year
except the first year, which shall begin on the Commencement Date, and the last
year, which shall end on the expiration of this Lease.
The Tenant's "Proportionate Share" shall be a fraction, having as its numerator
the floor area of the Premises and its denominator the total floor area of the
Project, all as determined by Landlord. Landlord may equitably increase Tenant's
Proportionate Share for any item of the Project that includes the Premises.
3. TAXES.
A. Subject to Xxxxxx's reimbursement obligation and Xxxxxxxx's right to
contest, Xxxxxxxx agrees to pay all taxes, assessments and governmental charges
of any kind and nature (collectively referred to herein as "Taxes") that accrue
against the
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Premises, and/or the land and/or improvements of which the Premises are a part.
Landlord shall have the right to contest by appropriate legal proceedings the
amount, validity, or application of any Taxes or liens thereof. The Landlord
shall have the right to employ a tax consulting firm and legal counsel to
attempt to assure a fair tax burden on the building and grounds within the
applicable taxing jurisdiction. Xxxxxx agrees to pay its proportionate share of
the cost of such consultant and legal counsel.
B. Tenant shall be liable for all taxes levied or assessed against any
personal property or fixtures placed in the Premises. If any such taxes are
levied or assessed against Landlord or Landlord's property and (i) Landlord pays
the same or (ii) the assessed value of Landlord's property is increased by
inclusion of such personal property and fixtures and Landlord pays the increased
taxes, then, upon demand Tenant shall pay to Landlord such taxes.
C. If at any time during the term of this Lease, there shall be levied,
assessed or imposed on Landlord a capital levy or other tax directly or
indirectly upon the rents received therefrom and/or a franchise tax, any excise,
transaction, sales or privilege tax, assessment, levy or charge measured by or
based, in whole or in part, upon such rents from the Premises and/or the land
improvements of which the Premises are a part, then all such taxes, assessments,
levies or charges, or the part, thereof so measured or based, shall be payable
to Landlord, monthly or upon demand, at the option of the Landlord, as
additional rent.
4. LANDLORD'S REPAIRS.
A. Landlord, at its own expense, shall maintain only the structural
soundness of the roof, foundation and exterior walls of the building of which
the Premises are a part in good repair, reasonable wear and tear and casualty
losses and damages caused by Tenant excluded. The term "walls" as used herein
shall not include windows, glass or plate glass, doors and overhead doors,
special store fronts, dock bumpers, dock plates or levelers, or office entries.
Tenant shall immediately give Landlord written notice of defect or need for
repairs, after which Landlord shall have reasonable opportunity to repair same
or cure such defect. Landlord's obligation to maintain the aforementioned items
shall be limited solely to the cost of such repairs or maintenance or the curing
of any defect in the same.
B. Landlord reserves the right to perform the paving maintenance, common
area and landscape replacement and maintenance, exterior painting, common water
and sewage line plumbing and any other items that are otherwise Tenant's
obligations under Paragraph 5.A, all of which are sometimes referred to herein
as common area charges, and Tenant shall be liable for its proportionate share
of the cost and expense of such repair, replacement, maintenance and other such
items.
C. Tenant agrees to pay its proportionate share of the cost of (i)
maintenance and/or landscaping of any property that is a part of the building
and/or project of which the Premises are a part, (ii) maintenance and/or
landscaping of any property that is maintained or landscaped by any property
owner or community owner association that is named in the restrictive covenants
or deed restrictions to which the Premises are subject, and (iii) operating and
maintaining any property, facilities or services provided for the common use of
Tenant and other tenants of any project or building of which the Premises are a
part.
D. Landlord reserves the right to alter or modify the building of which the
premises are a part and/or common areas associated therewith, when such
alterations or modifications are required by governmental laws, codes,
ordinances, regulations, or any other applicable authorities, including, without
limitation, the Americans with Disabilities Act of 1990 (the "ADA"), in which
event Tenant shall be liable for its proportionate share of such cost. If such
modification is a capital modification for the general benefit of the project,
and is required regardless of Tenant's particular use of the Premises, then the
cost shall be an operating expense allocated over the lesser of five (5) years
or the useful life of the modification. Notwithstanding the foregoing, if such
modification is predicated by Xxxxxx's particular use of the Premises or is
principally for the benefit of Tenant (and not other Tenants of the building)
the cost shall be borne entirely by Xxxxxx and Tenant shall reimburse Landlord
for same promptly upon demand.
X. Xxxxxx may audit Landlord's books relevant to the operating expenses
upon reasonable notice to Landlord; provided, however, Xxxxxx agrees to pay all
costs associated with or resulting from such audit, including reimbursement to
Landlord and Landlord's agents for time or costs incurred.
5. TENANT'S REPAIRS.
X. Xxxxxxxx reserves the prior right, exercisable at any time and in its
sole discretion, to coordinate, perform, or to contract of the performance of
Tenant's repair, maintenance and replacement obligations under this Paragraph 5.
Tenant shall reimburse Landlord upon demand for the costs of any such services
or repairs incurred by Landlord. Except only those repairs for which Landlord is
responsible under Paragraph 4.A, Tenant, at Tenant's sole cost and expense
shall: (i) maintain all parts of the Premises, landscape and grounds surrounding
the Premises and the building at which the Premises are a part, in good
condition, (ii) promptly make all necessary repairs and replacements, (iii) keep
the parking areas, driveways and alleys surrounding the Premises in a clean and
sanitary condition, and maintain any spur track servicing the Premises.
B. Tenant, at its own cost and expense, shall enter into and deliver to
Landlord a regularly scheduled preventative maintenance service contract with a
maintenance contractor approved by Landlord for servicing all hot water, heating
and air-conditioning systems and other equipment within the Premises. The
service contract must include all services required by the Landlord and must
become effective within thirty (30) days of the date Tenant takes possession of
the Premises. In the event Xxxxxx does not deliver said contract to Landlord
within thirty (30) days of the commencement date, the Landlord has the right to
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contract for said service without notice to Tenant, and Tenant shall upon demand
reimburse Landlord for the full cost thereof. Additionally Landlord, at any time
and in its sole discretion, reserves the right upon ninety (90) days written
notice to Tenant to enter into a regularly scheduled preventative maintenance
service contract covering the service, repair and/or replacement of any or all
such items for the entire building(s) of which the Premises are a part, in which
event Tenant shall be liable for its proportionate share of the cost and expense
of said preventative maintenance service contract in accordance with Paragraph 4
above.
C. Subject to the provisions of Paragraph 10, Tenant shall repair and pay
for any damage to the Premises or the Project caused by Tenant or Tenant's
employees, agents or invitees, or caused by Xxxxxx's default hereunder. Access
to the roof or the exterior walls of the Premises or Project for purposes of
repairs or otherwise by the Tenant shall be subject to Landlord's prior approval
and to such conditions as Landlord may require.
6. ALTERATIONS. Tenant shall not make any alterations, additions, partitions, or
other improvements to the Premises without the prior written consent of
Landlord. Tenant has conveyed to the Landlord its desire to make certain
alterations to the Premises as specified in Schedule "C" of this Agreement
("Specified Alterations"), and the Landlord has agreed in principle to allow the
Specified Alterations to be made by the Tenant subject to Landlord's approval of
plans and specifications to be submitted to Landlord by Xxxxxx and, provided
that Tenant complies with all other provisions of paragraph 6 herein. Tenant, at
its own cost and expense, may erect shelves, bins, machinery and trade fixtures
as it desires as well as alterations, additions, partitions, or other
improvements which have been specifically consented to in writing by Landlord,
provided that (i) such items do not alter the basic character of the Premises or
the building and/or improvements of which the Premises are a part, (ii) such
items do not overload or damage the same, (iii) such items may be removed
without injury to the Premises, and (iv) the construction, erection or
installation thereof complies with all applicable governmental laws, codes,
ordinances, regulations, or any other applicable authorities, including, without
limitation, the Americans with Disabilities Act of 1990 (the "ADA"), and with
Landlord's details, specifications and other requirements, (v) any
architectural, engineering, construction management, permits, inspections or
other cost or fee required to assure compliance with conditions set forth in
this Paragraph 6 shall be paid by Tenant promptly upon demand. All alterations,
additions, partitions, or other improvements erected by Tenant shall be and
remain the property of Tenant during the term of this Lease; provided however,
at the termination of this Lease, Landlord shall have the option, exercisable in
Landlord's sole discretion, to require Tenant either upon request to remove, at
Tenant's sole cost and expense, all or part of each alterations, additions,
partitions, or other improvements, at which time Tenant shall promptly restore
the Premises to its original condition, or to keep in place the same at which
time such alterations, additions, improvements, and partitions shall become the
property of Landlord. All shelves, bins, machinery and trade fixtures installed
by Tenant shall be removed on or before the earlier to occur of the date of
termination of this Lease or vacating the Premises, at which time Tenant shall
restore the Premises to their original condition. All alterations,
installations, removals and restoration shall be performed in a good and
workmanlike manner so as not to damage or alter the primary structure or
structural qualities of the buildings and other improvements situated on the
Premises or of which the Premises are a part.
7. SIGNS. Any signage Tenant desires for the Premises shall be subject to
Landlord's written approval and shall be submitted to Landlord prior to the
commencement date of this Lease. Tenant shall repair, paint and/or replace the
building facia surface to which its signs are attached upon vacation of the
Premises, or the removal or alteration of the signage. Tenant shall not (i) make
any changes to the exterior of die Premises, (ii) install any exterior lights,
decorations, balloons, flags, pennants, banners or painting, or (iii) erect or
install any signs, windows, or door lettering, placards, decorations or
advertising media of any type which can be viewed from the exterior of the
Premises, without Landlord's prior written consent. Tenant, at its sole cost,
shall obtain all applicable governmental permits and approvals for signage and
exterior treatments. All signs, decorations, advertising media, blinds,
draperies and other window treatment or bars or other security installations
visible from outside the Premises shall conform in all respects to the criteria
established by Landlord and any applicable governmental laws, ordinances,
regulations, or other requirements.
8. PARKING. Tenant shall be entitled to park in common with other tenants of the
Project in those areas designed for non-reserved parking. Xxxxxx agrees not to
burden the parking facilities and agrees to cooperate with Landlord and other
tenants in the use of the parking facilities. Landlord reserves the right, in
its absolute discretion, to determine whether parking facilities are becoming
crowded and, in such event, to allocate parking spaces among Tenant and other
tenants. Landlord shall not be responsible for enforcing Tenant's parking rights
against any third parties. No vehicle storage of any nature shall be allowed or
permitted in any parking area without Landlord's prior written consent.
9. UTILITIES.
X. Xxxxxxxx agrees to provide normal water and electricity connection to
the Premises as determined in Landlord's reasonable discretion. Tenant shall pay
for all water, gas, heat, light, power, telephone, sewer, sprinkler services,
refuse and trash collection, and other utilities and services used on or at the
Premises and any maintenance or inspection charges for utilities, together with
any taxes, penalties, surcharges or the like pertaining to the Tenant's use of
the Premises. Landlord shall have the right to cause any of said services to be
separately metered or charged to Tenant by provider, at Xxxxxx's expense. Tenant
shall
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pay its share of all charges for jointly metered utilities, based on consumption
as reasonably determined by Landlord. Landlord shall not be liable for any
interruption or failure of utility service on the Premises.
B. In the event water is not separately metered to Tenant, Xxxxxx agrees
that it will not use water for uses other than normal domestic restroom and
kitchen usage; and, Tenant does further agree to reimburse Landlord for the
entire amount of common water costs as additional rental if, in fact, Tenant
uses water for uses other than normal domestic restroom and kitchen uses without
first obtaining Landlord's written permission. Furthermore, Xxxxxx agrees in
such event to install at its own expense, a submeter to determine Tenant's
usage.
X. Xxxxxx agrees it will not use sewer capacity for any use other than
normal domestic restroom and kitchen use. Xxxxxx further agrees to notify
Landlord of any other sewer use ("excess sewer use") and also agrees to
reimburse Landlord for the costs and expenses related to Tenant's excess sewer
use, which shall include, but is expressly herein not limited to, the cost of
acquiring additional sewer capacity to service Tenant's Lease.
10. INSURANCE.
A. Subject to Xxxxxx's reimbursement obligation, Landlord shall maintain
such fire and extended coverage insurance covering the building situated on the
Premises or of which the Premises are a part as Landlord deems appropriate. Such
insurance may provide for a commercially reasonable deductive. Landlord may, but
is not obligated to, maintain such other insurance and additional coverage as it
may deem necessary, including but not limited to, comprehensive general
liability insurance, loss of rental insurance for up to 12 months rental, and
such additional insurance and coverage shall be reimbursable by Xxxxxx as
provided herein. The Project may be included in a blanket policy (in which case
the cost of such insurance allocable to the Project will be determined by
Landlord based upon insurer's cost calculations).
B. Tenant, at its own expense, shall maintain during the term of this Lease
a policy or policies of worker's compensation and comprehensive general
liability insurance, including personal injury and property damage, with
contractual liability endorsement, in the amount of One Million Dollars
($1,000,000.00) for property damage and Two Million Dollars ($2,000,000.00) per
occurrence for personal injuries or deaths of persons occurring in or about the
Premises. Tenant, at its own expense, also shall maintain during the term of
this Lease fire and extended coverage insurance covering the replacement cost of
(i) all alterations, additions, partitions and Xxxxxx's personal property
contained within the Premises by Tenant or by Landlord on behalf of Tenant and
(ii) all of Tenant's personal property contained within the Premises. Said
policies shall (i) name Landlord as an additional insured and insure Landlord's
contingent liability under this Lease (except for the worker's compensation
policy, which instead shall include waiver of subrogation endorsement in favor
of Landlord), (ii) be issued by an insurance company which is acceptable to
Landlord, (iii) provide that said insurance shall not be canceled unless thirty
(30) days written notice shall be given to Landlord, and (iv) provide primary
coverage to Landlord, when any policy issued to Landlord provides duplicate or
if similar coverage, Landlord's policy will be excess over Tenant's policies.
Said policies or certificates thereof shall be delivered to Landlord by Tenant
within ten (10) written days of the commencement of the term of the Lease and
upon each renewal of said insurance.
C. Tenant will not permit the Premises to be used for any purpose or in any
manner that would (i) void the insurance thereon, (ii) increase the insurance
risk, or (iii) cause the disallowance of any sprinkler credits, including
without limitation, use of the Premises for the receipt, storage or handling of
any product, material or merchandise that is explosive or highly flammable. If
any increase in the cost of any insurance of the Premises or the building of
which the Premises are a part is caused by Tenant's use of the Premises, or
because Tenant vacates the Premises, then Tenant shall pay the amount of such
increase to Landlord.
11. FIRE AND CASUALTY DAMAGE.
A. If the Premises or the building of which the Premises are a part should
be damaged or destroyed by fire or other peril, Tenant immediately shall give
written notice to Landlord. If the buildings situated on the Premises or of
which the Premises are a part should be totally destroyed by any peril covered
by insurance to be provided by Landlord under Paragraph 10.A above, or if they
should be so damaged thereby that, in the Landlord's estimation, rebuilding or
repairs cannot be completed within one hundred eighty (180) days after the date
of such damage, this Lease shall terminate and rent shall be abated during the
unexpired portion of this Lease, effective upon the date of the occurrence of
such damage, provided Xxxxxx has paid to Landlord the deductible or applicable
portion of the deductible, as the case may be, under the Landlord's insurance
policy.
B. If the buildings situated upon the Premises or of which the Premises are
a part, should be damaged by any peril covered by the insurance to be provided
by Landlord under Paragraph 10.A above, and in Landlord's estimation, rebuilding
or repairs can be substantially completed within one hundred twenty (120) days
after the date of such damage, this Lease shall not terminate, and Landlord
shall restore the Premises to substantially its previous condition, except that
Landlord shall not be required to rebuild, repair or replace any part of the
partitions, fixtures, additions and other improvements that may have been
constructed, erected or installed in, or about the Premises or for the benefit
of, or by or for the Tenant. Tenant shall pay to Landlord the amount of the
deductible under Landlord's insurance policy within thirty (30) days after
receipt of Landlord's invoice therefor. If the damage covered by the insurance
also involves portions of the building or buildings other than the Premises,
Tenant shall pay only a portion of the deductible, based on the ratio of the
cost of repairing the damage in the Premises
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to the total of repairing all damage in the building or buildings. If such
repairs and rebuilding have not been substantially completed within one hundred
fifty (150) days after the date of such damage, Tenant, at Tenant's exclusive
remedy, may, upon payment of insurance policy, terminate this Lease by
delivering written notice of termination to Landlord in which event the rights
and obligations hereunder shall cease and terminate. As an alternative to the
aforementioned rebuilding, repairs and/or reduction of rent, Landlord may, at
its sole option, use reasonable efforts to provide a reasonably comparable
facility for Tenant to lease at the then prevailing fair market rental for
either (i) the remainder of the term of the Lease, or (ii) the period of time
during which the Premises are untenantable.
C. Notwithstanding anything herein to the contrary, in the event the holder
of any indebtedness secured by a mortgage or deed of trust covering the Premises
requires that the insurance proceeds be applied to such indebtedness, then
Landlord shall have the right to terminate this Lease by delivering written
notice of termination to Tenant within fifteen (15) days after such requirements
is made known by any such holder, whereupon all rights and obligations hereunder
shall cease and terminate.
D. Anything in this Lease to the contrary notwithstanding, Landlord and
Tenant hereby waive and release each other of and from any and all rights of
recovery, claim, action or cause of action, against each other, their agents,
officers and employees, for any loss or damage that may occur to the Premises,
improvements to the building of which the Premises are a part, or personal
property (building contents) within the building and /or Premises, for any
reason regardless of cause or origin. Each party of this Lease agrees
immediately after execution of this Lease to give each insurance company, which
has issued to its policies of fire and extended coverage insurance, written
notice of the terms of the mutual waivers contained in this subparagraph, and if
necessary, to have the insurance policies properly endorsed.
12. LIABILITY AND INDEMNIFICATION. Except for any claims, rights of recovery and
causes of action that Xxxxxx has released, Landlord shall hold Tenant harmless
and defend Tenant against any and all claims or liability for any injury or
damage to any person in, on or about the Premises or any part thereof and/or the
building of which the Premises are a part, when such injury shall be caused by
the act, neglect, negligence, fault of, or omission of any duty with respect to
the same by Landlord, its agents, servants and employees. Except for any claims,
rights of recovery and causes of action that Landlord has released, Tenant shall
hold Landlord harmless from and defend Landlord against any and all claims or
liability for any injury or damage (i) to any person or property whatsoever
occurring in, on or about the Premises or any part thereof and/or of the
building of which the Premises are a part, including without limitation
elevators, stairways, passageways or hallways, the use of which Tenant may have
in accordance with this Lease, when such injury or damage shall be caused by the
act, neglect, negligence, fault of, or mission of any duty with respect to the
same by Xxxxxx, its agents, servants, employees, or invitees, (ii) arising from
the conduct of management of any work done by the Tenant in or about the
Premises, (iii) arising from transactions of the Tenant, (iv) Tenant's breach of
any covenant contained in this Lease, including but not limited to Xxxxxx's
failure to comply with any of the matters set forth relating to environmental
requirements as defined and described in Paragraph 23 and incorporated herein by
reference, and (v) all costs, counsel fees, expenses and liabilities incurred in
connection with any such claim or action or proceeding brought thereon. The
provisions of this Paragraph 12 shall survive the expiration or termination of
this Lease with respect to any claims or liability occurring prior to such
expiration or termination.
13. USE. The Premises shall be used only for the purpose of general office use,
data center operations, receiving, storing, shipping, and selling (other than
retail) products, materials and merchandise made and/or distributed by Tenant
and for such other lawful purposes as may be incidental thereto. Outside
storage, including without limitation, storage of trucks and other vehicles and
the washing thereof at any time is prohibited without Landlord's prior written
consent. Tenant shall, at its own cost and expense, obtain any and all licenses
and permits necessary for such use, shall at all times maintain the Premises in
a clean, healthful and safe condition and comply with all governmental laws,
codes, ordinances, regulations or any other applicable authorities with regard
to the use, condition or occupancy of the Premises including, without
limitation, the ADA. Tenant shall be responsible, at Tenant's sole cost and
expense, for the correction, prevention, and abatement of nuisances in or upon,
or connected with, the Premises. Tenant shall not permit any objectionable or
unpleasant odors, smoke, dust, gas, noise, vibrations, or pest infestations to
emanate from the Premises, nor take any other action that would constitute a
nuisance or would disturb, unreasonably interfere with, or endanger Landlord or
any other tenants of the building or project of which the Premises are a part.
Tenant's use of the Premises shall at all times comply with the insurance
provisions in Paragraph 10 hereof.
14. INSPECTION. Landlord and its agents and representatives shall have the right
to enter the Premises at any reasonable time during business hours to inspect
the Premises and to make such repairs as may be required or permitted pursuant
to this Lease. During the period that is six (6) months prior to the end of the
Lease term upon telephonic notice to Tenant, Landlord and Landlord's
representative may enter the Premises during business hours for the purpose of
showing the Premises. In addition, Landlord shall have the right to erect a
suitable sign on the Premises stating the Premises are available. Tenant shall
notify Landlord in writing at least thirty (30) days prior to vacating the
Premises and shall arrange to meet with Landlord for a joint inspection of the
Premises prior to vacating. If Tenant fails to give such notice or to arrange
for such inspection, then Xxxxxxxx's inspection of the Premises shall be deemed
correct for the purpose of determining Tenant's responsibility for repairs and
restoration of the Premise.
7
15. ASSIGNMENT AND SUBLETTING.
A. Tenant shall not have the right to assign, transfer or encumber this
Lease, or any interest therein, without the prior written consent of Landlord.
Any attempted assignment, transfer or encumbrance by Xxxxxx in violation of the
terms and covenants of this Paragraph shall be void. Notwithstanding the
foregoing, Tenant shall have the right to assign this Lease to any affiliate
provided that such assignment is in form satisfactory to Landlord. Any assignee
or transferee of Xxxxxx's interest in this Lease (all such assignees and
transferees being hereinafter referred to as "Transferees"), by assuming
Tenant's obligations hereunder, shall assume liability to Landlord for all
amounts paid to persons other than Landlord by such Transferees in contravention
of this Paragraph. No assignment, or other transfer, whether consented to by
Landlord or not permitted hereunder shall relieve Tenant of its liability
hereunder. If an event of default occurs while the Premises or any part thereof
are assigned or sublet, then Landlord, in addition to any other remedies herein
provided, or provided by law, may collect directly from such Transferee all
rents payable to the Tenant and apply such rent against any sums due Landlord
hereunder. No such collection shall be construed to constitute a novation or a
release of Tenant from the further performance of Xxxxxx's obligations
hereunder.
B. Tenant is permitted to enter into a lease agreement that permits a third
party ("Sub-Tenant(s)") to take a portion or all of the Premises from the
Tenant, provided that the Sub-tenant's use, in the sole discretion of the
Landlord, does not substantively or adversely change the Tenant's approved use,
the Tenant remains primarily responsible for all monies to be paid under the
terms of this lease, including but not limited to, the payment of base rent and
operating expenses as defined in paragraph 2, and the Sub-Tenant maintains an
adherence to the applicable terms set out in this Agreement. In the event that a
Sub-Tenant fails to adhere to the applicable terms of this Agreement, the
Landlord shall retain its rights with respect to the Tenant, and may proceed
with rights and recourse provided for the benefit of the Landlord under this
Agreement, as if the Tenant itself had failed to adhere the terms of this
Agreement.
C. If an event of default occurs while the Premises or any part thereof are
assigned, transferred or sublet, then Landlord, in addition to any other
remedies herein provided, or provided by law, may collect directly from such
Transferee all rents payable to the Tenant and apply such rent against any sums
due Landlord hereunder. No such collection shall be construed to constitute a
novation or a release of Tenant from the further performance of Xxxxxx's
obligations hereunder.
D. If this Lease is assigned to any person or entity pursuant to the
provisions of the Bankruptcy Code, 11 U.S.C., Section 101, et seq., (the
"Bankruptcy Code"), any and all monies or other consideration payable or
otherwise to be delivered in connection with such assignment shall be paid or
delivered to Landlord, shall be and remain the exclusive property of Landlord
and shall not constitute property of Tenant or of the estate of Tenant within
the meaning of the Bankruptcy Code. Any and all monies or other considerations
constituting Landlord's property under the preceding sentence not paid or
delivered to Landlord be held in trust for the benefit of Landlord and be
promptly paid or delivered to Landlord.
E. Any person or entity to which this Lease is assigned pursuant to the
provisions of the Bankruptcy Code, shall be deemed, without further act or deed,
to have assumed all of the obligations arising under this Lease on and after the
date of such assignment. Any such assignee shall upon demand execute and deliver
to Landlord an instrument confirming such assumption.
16. CONDEMNATION. If the whole or any substantial part as determined by Landlord
of the Premises should be taken for any public or quasi-public use under
governmental law, ordinance or regulation, or by right of eminent domain, or by
private purchase in lieu thereof and the taking prevents or materially
interferes with the use of the Premises for the purpose for which they were
leased to tenant, this Lease shall terminate and the rent shall be abated during
the unexpired portion of this Lease, effective on the date of such taking. If
less than a substantial part, as determined by Landlord, of the Premises is
taken for any public or quasi-public use under any governmental law, ordinance
or regulation or by right of eminent domain, or by private purchase in lieu
thereof, this Lease shall not terminate, but the rent payable hereunder during
the unexpired portion of this Lease shall be reduced to such extent as may be
fair and reasonable under all of the circumstances. All compensation awarded in
connection with or as a result of any of the foregoing proceedings shall be the
property of Landlord and Tenant hereby assigns any interest in any such award to
Landlord; provided, however, Landlord shall have no interest in any award made
to Tenant for loss of business or goodwill or for the taking of Tenant's
fixtures and improvements, if a separate award for such items is made, to
Tenant.
17. HOLDING OVER. At the termination of this Lease by its expiration or
otherwise, Tenant immediately shall deliver possession to Landlord with all
cleaning, repairs and maintenance required herein to be performed by Xxxxxx
completed. If, for any reason, Tenant retains possession of the Premises after
the expiration of the Lease, unless the parties hereto otherwise agree in
writing, such possession shall be subject to termination by either Landlord or
Tenant at any time upon not less than ten (10) days advance written notice, and
all of the other terms and provisions of this Lease shall be applicable during
such period, except that Tenant shall pay Landlord from time to time, upon
demand, as rental for the period of such possession, an amount equal to double
the rent in effect on the termination date, computed on a daily basis for each
day of such period. No holding over by Xxxxxx, whether with or without consent
of Landlord shall operate to extend this Lease except as otherwise expressly
8
provided. The preceding provisions of this Paragraph 17 shall not be construed
as consent for Tenant to retain possession of the Premises in the absence of
written consent thereto by Landlord.
18. QUIET ENJOYMENT. Landlord covenants that on or before the commencement date
it will have good title to the Premises, free and clear of all liens and
encumbrances, excepting only the lien for such mortgage or mortgages as are
permitted by the terms of this Lease, zoning ordinances and other building and
fire ordinances and governmental regulations relating to the use of such
property, and easements, restrictions and other conditions of record. If this
Lease is a sublease, then Xxxxxx agrees to take the Premises subject to the
provisions of the prior Leases. Landlord represents that it has the authority to
enter into this Lease and that so long as Tenant pays all amounts due hereunder
and performs all other covenants and agreements herein set forth, Tenant shall
peaceably and quietly have, hold and enjoy the Premises for the term hereof
without hindrance or molestation from Landlord, subject to the terms and
provisions of this Lease.
19. EVENTS OF DEFAULT. The following events (herein individually referred to as
"event of default") each shall be deemed to be events of nonperformance by
Tenant under this Lease:
A. Tenant shall fail to pay any installment of the rent herein when due, or
any other payment of reimbursement to Landlord required herein when due, and
such failure shall continue for a period of five (5) days from the date such
payment was due.
B. The Tenant or any guarantor of the Tenant's obligations hereunder shall
(i) become insolvent; (ii) admit in writing its inability to pay its debts;
(iii) make a general assignment for the benefit of creditors; (iv) commence any
case, proceeding or other case action seeking to have an order for relief
entered on its behalf as a debtor or to adjudicate it a bankrupt or insolvent,
or seeking reorganization, arrangement, adjustment, liquidation, dissolution or
composition of it or its debts under any law relating to bankruptcy, insolvency,
reorganization or relief of debtors seeking appointment of a receiver, trustee,
custodian or other similar official for it or for all or of any substantial part
of its property; or (v) take any action to authorize or in contemplation of any
of the actions set forth above in this Paragraph.
C. Any case, proceeding or other action against the Tenant or any guarantor
of the Tenant's obligations hereunder shall be commenced seeking (i) to have an
order for relief entered against it as debtor or to adjudicate it a bankrupt or
insolvent; (ii) reorganization, arrangement, adjustment, liquidation,
dissolution or composition of it or its debts under any law relating to
bankruptcy, insolvency, reorganization of relief of debtors; (iii) appointment
of a receiver, trustee, custodian or other similar official for it or for all or
any substantial part of its property, and such case, proceeding or other action
(a) results in the entry of an order for relief against it which is not fully
stayed within seven (7) business days after the entry thereof, or (b) shall
remain undismissed for a period of forty-five (45) days.
D. Tenant shall (i) vacate all of a substantial portion of the Premises, or
(ii) fail to continuously operate its business at the Premises for the permitted
use set forth herein, whether or not Tenant is in default of the rental payments
due under this Lease.
E. Tenant shall fail to discharge any lien placed upon the Premises in
violation of Paragraph 22 hereof within twenty (20) days after any such lien or
encumbrance is filed against the Premises.
F. Tenant shall fail to comply with any term, provision or covenant of this
Lease (other than those listed in this Paragraph 19), and shall not cure such
failure within twenty (20) days after written notice thereof to Tenant.
20. REMEDIES.
A. Upon each occurrence of an event of default and so long as such event of
default shall be continuing. Landlord shall have the option to pursue any one or
more of the following remedies without any notice or demand:
(i) Terminate this Lease; and/or (ii) Enter upon and take possession
of the Premises without terminating this Lease; and/or (iii) Alter all locks and
other security devices at the Premises with or without terminating this Lease,
and pursue, at Landlord's option, one or more remedies pursuant to this Lease,
Tenant hereby specifically waiving any state or federal law to the contrary; and
in any such event Tenant immediately shall surrender the Premises to Landlord,
and if Xxxxxx fails so to do, Landlord, without waiving any other remedy it may
have, may enter upon and take possession of the Premises and expel or remove
Tenant and any other person who may be occupying such Premises or any part
thereof, without being liable for prosecution or any claim of damages therefore.
B. If Landlord terminates this Lease, at Landlord's option, Tenant shall be
liable for and shall pay to Landlord, the sum of all rental and other payments
owed to Landlord hereunder accrued to the date of such termination, plus, as
liquidated damages, an amount equal to (i) the present value of the total rental
and other payments owed hereunder for the remaining portion of the Lease term,
calculated as if such term expired on the date set forth in Paragraph 1, less
(ii) the then present fair market value of the Premises for such period, which
because of the difficulty of ascertaining such value, Landlord and Tenant
stipulate and agree, shall in no event be deemed to exceed seventy-five percent
(75%) of the rental amount set forth in Paragraph 2 above.
C. If Landlord repossesses the Premises without terminating the Lease,
Tenant, at Landlord's option, shall be liable for and shall pay Landlord on
demand all rental and other payments owed to Landlord hereunder, accrued to the
date of such repossession, plus all amounts required to be paid by Tenant to
Landlord until the date of expiration of the term as stated in
9
Paragraph 1, diminished by all amounts received by Landlord through reletting
the Premises during such remaining term (but only to the extent of the rent
herein reserved). Actions to collect amounts due by Tenant to Landlord under
this subparagraph may be brought from time to time, on one or more occasions,
without the necessity of Landlord's waiting until expiration of the Lease term.
D. During an event of default, in addition to any sum provided to be paid
herein, Tenant also shall be liable for and shall pay to Landlord (i) broker's
fees incurred by Landlord in connection with reletting the whole or any part of
the Premises; (ii) the costs of removing and storing Tenant's or other
occupant's property; (iii) the costs of repairing; altering, remodeling or
otherwise putting the Premises into condition acceptable to a new tenant or
tenants; and (iv) all reasonable expenses incurred by Landlord in enforcing or
defending Landlord's rights and/or remedies. If either party hereto institute
any action or proceeding to enforce any provision hereof by reason of any
alleged breach of any provision of the Lease, the prevailing party shall be
entitled to receive from the losing party all reasonable attorney's fees and all
court costs in connection with such proceeding.
E. In the event Tenant fails to make any payment due hereunder when payment
is due, to help defray the additional cost to Landlord for processing such late
payments, Tenant shall pay to Landlord on demand a late charge in an amount
equal to five percent (5%) of such installment; and the failure to pay such
amount within ten (10) days after demand therefor shall be an additional event
of default hereunder. The provision for such late charge shall be in addition to
all of Landlord's other rights and remedies hereunder or at law and shall not be
construed as liquidated damages or as limiting Landlord's remedies in any
manner.
F. Exercise by Landlord of any one or more remedies hereunder granted or
otherwise available shall not be deemed to be an acceptance of surrender of the
Premises by Landlord, whether by agreement or by operation of law, it being
understood that such surrender can be effected only by the written agreement of
Landlord and Xxxxxx. Tenant and Landlord further agree that forbearance by
Landlord to enforce its rights pursuant to the Lease at law or in equity, shall
not be a waiver of Landlord's right to enforce one or more of its rights in
connection with any subsequent default.
G. In the event of termination and/ or repossession of the Premises for an
event of default, Landlord shall use reasonable efforts to relet the Premises
and to collect rental after reletting; provided that, Tenant shall not be
entitled to credit or reimbursement of any proceeds in excess of the rental owed
hereunder. Landlord may relet the whole or any portion of the Premises for any
period, to any Tenant and for any use and purpose.
H. If Landlord fails to perform any of its obligations hereunder within
thirty (30) days after written notice from Tenant specifying such failure,
Xxxxxx's exclusive remedy shall be an action for damages. Unless and until
Landlord fails to so cure any default after such notice, Tenant shall not have
any remedy or cause of action by reason thereof. All obligations of Landlord
hereunder will be construed as covenants, not conditions; and all such
obligations will be binding upon Landlord only during the period of its
possession of the Premises and not thereafter. The term "Landlord" shall mean
only the owner, for the time being of the Premises, and in the event of the
transfer by such owner of its interest in the Premises, such owner shall
thereupon be released and discharged from all covenants and obligations of the
Landlord thereafter accruing but such covenants and obligations shall be binding
during the Lease term upon each new owner for the duration of such owner's
ownership. Notwithstanding any other provision hereof, Landlord shall not have
any personal liability hereunder. In the event of breach or default by Landlord
in any term or provision of this Lease, Xxxxxx agrees to look solely to the
equity or interest then owned by Landlord in the Premises; however, in no event,
shall any deficiency judgment or any money of any kind be sought or obtained
against any Landlord.
I. If Landlord repossesses the Premises pursuant to the authority herein
granted, the Landlord shall have the right to (i) keep in place and use or (ii)
remove and store all of the furniture, fixtures and equipment at the Premises,
including that which is owned by or leased to Tenant at all times prior to any
foreclosure thereon by Landlord or repossession thereof by any Landlord thereof
of third party having a lien thereof. Landlord also shall have the right to
relinquish possession of all or any portion of such furniture, fixtures,
equipment and other property to any person ("Claimant") who presents to Landlord
a copy of any instrument represented by Claimant to have been executed by Xxxxxx
(or any predecessor of Tenant) granting Claimant the right under various
circumstances to take possession of such furniture, fixtures, equipment or other
property, without the necessity on the part of Landlord to inquire into the
authenticity or legality of said instrument. The rights of Landlord herein
stated shall be in addition to any and all other rights that Landlord has or may
hereafter have at law or in equity; and Tenant stipulates and agrees that the
rights herein granted Landlord are commercially reasonable.
J. Notwithstanding anything in this Lease to the contrary, all amounts
payable by Tenant to or on behalf of Landlord under this Lease, whether or not
expressly denominated as rent, shall constitute rent.
K. This is a contract under which applicable law excuses Landlord from
accepting performance from (or rendering performance to) any person or entity
other than Tenant.
21. MORTGAGES. Xxxxxx accepts this Lease subject and subordinate to any
mortgages and/or deeds of trust now or any time hereafter constituting a lien or
change upon the Premises or the improvements situated thereon or the building of
which the Premises are a part, provided, however, that if the mortgagee,
trustee, or holder of any such mortgage or deed of trust elects to
10
have Xxxxxx's interest in this Lease superior to any such instrument, then by
notice to Tenant from such mortgage, trustee or holder, this Lease shall be
deemed superior to such lien, whether this Lease was executed before or after
said mortgage or deed of trust. Tenant, at any time hereafter on demand, shall
execute any instruments, releases or other documents that may be required by any
mortgagee for the purpose of subjecting and subordinating this Lease to the lien
of any such mortgage. Further, Tenant, at any time hereafter on demand, shall
deliver to Landlord a certified copy of its most recent financial statement.
22. MECHANIC'S LIENS. Tenant has no authority, express or implied, to create or
place any lien or encumbrance of any kind or nature whatsoever upon, or in any
manner to bind the interest of Landlord or Tenant in the Premises or to charge
the rentals payable hereunder for any claim in favor of any person dealing with
Xxxxxx, including those who may furnish materials or perform labor for any
construction or repairs. Tenant covenants and agrees that it will pay or cause
to be paid all sums legally due and payable by it on account of any labor
performed or materials furnished in connection with any work performed on the
Premises and that will save and hold Landlord harmless from any and all loss,
cost or expense based on or arising out of asserted claims or liens against the
leasehold estate or against the right, title and interest of the Landlord in the
Premises or under the terms of this Lease. Xxxxxx agrees to give Landlord
immediate written notice of the placing of any lien or encumbrance against the
Premises.
23. HAZARDOUS MATERIALS. The term "Substances," as used in this Lease shall mean
pollutants, contaminants, toxic or hazardous wastes, or any other substances,
the use, storage, handling, disposal, transportation or removal of which is
regulated, restricted, prohibited or penalized by any "Environmental Law," which
term shall mean any federal, state or local law, ordinance or other statute of a
governmental or quasi-governmental authority relating to pollution or protection
of health or the environment and shall specifically include, but not be limited
to, any "hazardous substance" as that term is defined under the Comprehensive
Environmental Response, Compensation and Liability Act of 1980 and any
amendments or successors in function thereto. Tenant hereby agrees that (i) no
activity will be conducted on the Premises that will produce any Substance
except for such activities that are part of the ordinary course for Tenant's
business activities (the "Permitted Activities") provided said Permitted
Activities are conducted in accordance with all Environmental Laws and have been
approved in advance in writing by Landlord (which approval Landlord may grant or
withhold in its sole discretion); Tenant shall be responsible for obtaining any
required permits and paying any fees and providing any testing required by any
governmental agency; (ii) the Premises will not be used in any manner for the
storage of any Substance except for the temporary storage of such materials that
are used in the ordinary course of Tenant's business provided such substances
are properly stored in a manner and location meeting all Environmental Laws and
approved in advance in writing by Landlord (which approval Landlord may grant or
withhold in its sole discretion); Tenant shall be responsible for obtaining any
required permits and paying any fees and providing any testing required by any
governmental agency; (iii) no portion of the Premises will be used "as a
landfill or a dump; (iv) Tenant will not install any underground or aboveground
tank of any type; (v) Tenant will not allow any surface or subsurface conditions
to exist or come into existence that constitute, or with the passage of time,
may constitute a public or private nuisance; (vi) Tenant will not permit any
Substances to be brought onto the Premises, except in accordance with the terms
and conditions hereof, and if so brought or found located thereon, the same
shall be immediately removed, and properly disposed, and all required cleanup
procedures shall be diligently undertaken pursuant to all Environmental Laws;
and (vii) Tenant shall in all regards comply with Environmental Laws including,
without limitation, meeting any necessary financial responsibility requirements.
Prior to any Substance being brought upon or into the Premises, whether
Xxxxxxxx's written permission is required or not, Tenant will provide to
Landlord any applicable material safety data sheets regarding said Substance as
well as a written description of the amount of such Substance to be brought upon
or into the Premises and the common and recognized chemical name of such
Substance. Tenant shall bear responsibility for insuring that all record
keeping, reporting and remediation responsibilities of Tenant under
Environmental Laws are met and Tenant assumes all such responsibility and
liability for such legal compliance. Landlord or Landlord's representative shall
have the right, but not the obligation, to enter the Premises for, among other
purposes, the purposes of inspecting the storage, use and disposal of any
Substances and to review compliance with all Environmental Laws. Should it be
determined, in Xxxxxxxx's sole opinion, that any Substances are being improperly
stored, used, or disposed of, then Tenant shall immediately take such corrective
action as required by applicable Environmental Laws. Tenant will provide
Landlord written notification of the release or disposal of any Substances
either within the Premises or outside of Tenant's Premises and will also provide
Landlord written notice of any pending or threatened litigation concerning the
breach or purported breach of any Environmental Laws. If at any time during or
after the term of the Lease, the Premises is found to be contaminated by
Substances or subject to said conditions, arising from or as a result of
Tenant's negligence (whether in whole or in part) or the use of the Premises or
any Substances by Tenant or any of Tenant's agents, employees, assigns or
subtenants, Tenant shall diligently institute proper and thorough cleanup
procedures in accordance with Environmental Laws at Tenant's sole cost, and
Xxxxxx agrees to indemnify and hold Landlord harmless from all claims, demands,
actions, liabilities, costs, expenses, damages, fines, reimbursement,
restitution, response costs, cleanup costs and obligations (including
investigative responses and attorney's fees) of any nature. The foregoing
indemnification and the responsibilities of Tenant shall apply to Tenant
regardless of whether they arise from any Permitted Activity or from any
Substances, the use of which Landlord approved, and shall survive the
termination or expiration of this lease. Landlord shall be under no obligation
to expend any sums or to seek reimbursement to enforce the indemnification
obligations of Tenant hereunder.
11
Permitted Materials: Chemicals approved and used for industrial fire
suppression systems operating in the premises.
Tenant acknowledges and agrees that it shall not be unreasonable for
Landlord to withhold its consent to any proposed assignment, subletting, or
transfer of Tenant's interest in this Lease if (i) the anticipated use of the
Premises by the proposed assignee, subtenant, or transferee (collectively, a
"Transferee") involves the generation, storage, use, treatment, or disposal of
Substances; (ii) the proposed Transferee has been required by any prior
Landlord, lender, or governmental authority to make remedial action in
connection with Substances contaminating a property, if the contamination
resulted from such Transferee's actions or use of the property in question; or
(iii) the proposed Transferee is subject to an enforcement order issued by any
governmental authority in connection with the use, disposal, or storage of a
Substance.
24. MISCELLANEOUS.
A. Words of any gender used in this Lease shall be held and construed to
include any other gender, and words in the singular number shall be held to
include the plural, unless the context otherwise requires. The captions inserted
in this Lease are for the convenience only and in no way define, limit or
otherwise describe the scope of intent of this Lease, or any provision hereof,
or in any way affect the interpretation of this Lease.
B. In the event the Premises constitute a portion of a multiple occupancy
building or buildings, Tenant's "proportionate share", as used in this Lease,
shall mean a fraction, the numerator of which is the space contained in the
Premises and the denominator of which the entire space contained in the building
or buildings.
C. The terms, provisions and covenants and conditions contained in this
Lease shall run with the land and shall apply to, inure to the benefit of, and
be binding upon, the parties hereto and upon their respective heirs, executors,
personal representatives, legal representatives, successors and assigns, except
as otherwise herein expressly provided. Landlord shall have the right to
transfer and assign, in whole or in part, its rights and obligations in the
building and property that are subject of this Lease. Each party agrees to
furnish to the other, promptly upon demand, a corporate resolution, proof of due
authorization by partners, or other appropriate documentation evidencing the due
amortization of such party to enter into this Lease.
X. Xxxxxxxx shall not be held responsible for delays in the performance of
its obligations hereunder when caused by strikes, lockouts, labor disputes, acts
of God, inability to obtain labor or materials or reasonable substitutes
therefor, governmental restrictions, governmental regulations, governmental
controls, enemy or hostile governmental action, civil commotion, fire or other
casualty, and other causes beyond the control of the Landlord.
X. Xxxxxx agrees, from time to time, within ten (10) days after request of
Landlord, to execute and deliver to Landlord, or Landlord's designee, a
Certificate of Occupancy and an estoppel certificate prepared and/or submitted
by Landlord stating that this Lease is in full force and effect, the date to
which rent has been paid, the unexpired term of this Lease and such other
factual matters pertaining to this Lease as may be requested by Xxxxxxxx. It is
understood and agreed that Xxxxxx's obligation to furnish such estoppel
certificates in a timely fashion is a material inducement for Landlord's
execution of this Lease. No grace or cure period provided in this Lease shall
apply to the Tenant's obligations to timely deliver an estoppel certificate.
Tenant hereby irrevocably appoints as its attorney in fact to execute on its
behalf and in its name any such estoppel certificate if Tenant fails to execute
and deliver the estoppel certificate within ten (10) days after Xxxxxxxx's
written request thereof.
F. This Lease constitutes the entire understanding and agreement of the
Landlord and Tenant with respect to the subject matter of this Lease, and
contains all of the covenants and agreements of Landlord and Tenant with respect
thereto. Landlord and Tenant each acknowledge that no representations,
inducements, promises or agreements, oral or written, have been made by Landlord
or Tenant, or anyone acting on behalf of Landlord or Tenant, which are not
contained herein, and any prior agreements, promises, negotiations or
representations not expressly set forth in this Lease are of no force and
effect. This Lease may not be altered, changed or amended except by an
instrument in writing signed by both parties hereto.
G. All obligations of Tenant hereunder not fully performed as of the
expiration or earlier termination of the term of this Lease shall survive the
expiration or earlier termination of the term hereof, including without
limitation, all payment obligations with respect to operating expenses as set
forth in Paragraph 2.C and all obligations concerning the condition and repair
of the Premises, including without limitation, all heating and air-conditioning
systems and equipment therein, in good condition and repair, reasonable wear and
tear excluded. Tenant shall also, prior to vacating the Premises, pay to
Landlord the amount, as estimated by Landlord, of Xxxxxx's obligation hereunder
for operating expenses for the year in which the Lease expires or terminates.
All such amounts shall be used and held by Landlord for payment of such
obligations of Tenant hereunder, with Xxxxxx being liable for any additional
costs therefore upon demand by Landlord, or with any excess to be returned to
Tenant after all such obligations have been determined and satisfied as the case
may be. Any security deposit held by Landlord (less the refurbishment fee
specified in Paragraph 2.B) shall be credited against the amount due from Tenant
under this Paragraph 24.G.
H. If any clause or provision of this Lease is illegal, invalid or
unenforceable under present or future laws effective during the term of this
Lease, then and in that event, it is the intention of the parties hereto that
the remainder of this Lease shall
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not be affected thereby, and it is also the intention of the parties to this
Lease that in lieu of such clause or provision of this Lease that it is illegal,
invalid or unenforceable, there be added, as part of this Lease, a clause or
provision as similar in terms to such illegal, invalid or unenforceable clause
or provision as may be possible and be legal, valid and enforceable.
I. All references in this Lease to "the date hereof of similar references
shall be deemed to refer to the last date, in point of time, on which all
parries hereto have executed this Lease.
X. Xxxxxx represents and warrants that it has dealt with no broker, agent
or other person in connection with this transaction or that no broker, agent or
other person brought into this transaction, other than as may be referenced in a
separate written agreement executed by Xxxxxx, and delivered to Landlord prior
to the date hereof, and Xxxxxx agrees to indemnify and hold Landlord harmless
from and against any claims by any other broker, agent or other person claiming
a commission or other form of compensation by virtue of having dealt with Tenant
with regard to this leasing transaction.
K. If and when included within the term "Landlord", as used in this
instrument, there is more than one person, firm or corporation, all shall
jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address for the receipt of notices
and payments to Landlord. If and when included within the term "Tenant", as used
in this instrument, there is more than one person, firm or corporation, all
shall jointly arrange among themselves for their joint execution of a notice
specifying some individual at some specific address within the continental
Unites States for the receipt of notices and payments to Tenant. All parties
included within the terms "Landlord" and "Tenant", respectively shall be bound
by notices given in accordance with the provisions of Paragraph 26 hereof to the
same effect as if each had received such notice.
L. Tenant shall, at all times during the term of this Lease and any
extension thereof, comply with all reasonable rules and regulations ("Building
Rules and Regulations") at any time or from time to time established by Landlord
covering use of the Premises and common areas. The existing Building Rules and
Regulations currently in force and effect are attached hereto as Exhibit "B" and
made a part hereof. In the events of any conflict between said Building Rules
and Regulations and the Lease, the terms and provisions of the Lease shall
control.
M. Landlord shall have the right to substitute for the Premises other space
within the building; provided, however, the usable area of the substituted
premises shall not be less than the usable area of the originally leased
premises, and no increase in the rentals provided to be paid by Tenant hereunder
shall be occasioned by such substitution of premises. Tenant shall relocate to
such substitution of premises. Tenant shall relocate to such substituted
premises upon thirty (30) days notice thereof, and Landlord shall pay the
reasonable moving expenses of Tenant incidental to such substitution of
premises. Upon such relocation, such substituted premises shall be considered
the Premises described in this Lease for all uses and purposes as though
originally leased to Tenant by this Lease.
X. Xx Xxxxxx has been previously informed, the Landlord is a manager
managed limited liability company whose manager is MainSpring Capital, L.L.C.
The members of MainSpring Capital, L.L.C. are shareholders of Xxxx Xxxxx
Partners, Inc. and may, furthermore, be members of the Landlord. Furthermore,
MainSpring Capital, L.L.C. may be a member of Landlord. Xxxx Xxxxx Partners,
Inc. is the property manager for the Landlord and is employed by Landlord to
lease the property of which the demised premises are a part. As such, the broker
and real estate licensees of Xxxx Xxxxx Partners, Inc. are solely agents of
Landlord.
25. SECURITY SERVICE. Xxxxxx agrees to pay the proportionate share of the cost
of any security services and/or of monitoring, repair and maintenance of any
burglar alarm systems, water flow detection systems and other protective
security equipment that is on or may be installed on the Premises and/or the
building of which the Premises are a part, including the cost of any license or
permit or user charge required for any such security systems. Landlord shall not
be liable to Tenant for any damages, costs or expenses suffered or incurred by
Tenant in connection with any unauthorized entry into the Premises and any other
liability arising in connection with such security systems or services.
26. NOTICES. Each provision of this instrument or of any applicable governmental
laws, ordinances, regulations and other requirements with reference to the
sending, mailing or delivering of notice or the making of any payment to
Landlord to Tenant or with reference to sending, mailing or delivering any
notice or the making of any payment by Tenant to Landlord shall be deemed to be
compiled with when and if the following steps are taken:
(a) All rent and other payments required to be made by Tenant to Landlord
hereunder shall be payable to Landlord at the address set forth below or at such
other address as Landlord may specify from time to time by written notice
delivered in accordance herewith. Tenant's obligation to pay rent and any other
amounts to Landlord under the terms of this Lease shall not be deemed satisfied
until such rent and other amounts have been actually received by Landlord. In
addition to base rental due hereunder, all sums of money and all payments due
Landlord hereunder shall be deemed to be additional rent owed to Landlord.
(b) All payments required to be made by Landlord to Tenant hereunder shall
be payable to Tenant at the address set forth below, or at such other address
within the continental United States as Tenant may specify from time to time by
written notice delivered in accordance herewith.
(c) Any written notice or document required or permitted to be delivered
hereunder shall be deemed to be delivered whether actually received or not when
deposited in the United States Mail, postage prepaid, Certified or Registered
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Mail, addressed to the parties hereto at the respective addresses set out
below, or at such other address as they have therefore specified by written
notice delivered in accordance herewith.
27. LANDLORD'S LIEN. In addition to any statutory lien for the rent in
Landlord's favor, Landlord shall have and Tenant hereby grants to Landlord a
continuing security interest for all rentals and other sums of money due or
which may become due hereunder from Tenant, upon all goods, wares, equipment,
fixtures, furniture, inventory and other personal property of the Tenant now or
hereafter situated as fixtures, furniture, inventory and other personal property
of the Tenant now or hereafter situated at 0000 X. 00XX XXXXXX, XXXXX, XXXXXXX
00000, and such property shall not be removed therefrom without the consent of
Landlord until all arrearages in rent as well as any and all other sums of money
then due to Landlord hereunder shall first have been paid and discharged. In the
event any of the foregoing described property is removed from the Premises in
violation of the covenant in the preceding sentence, the security interest shall
continue in such property and all proceeds and products, regardless of
locations. Upon a default hereunder by Xxxxxx in addition to all other rights
and remedies, Landlord shall have all rights and remedies under the Uniform
Commercial Code, including without limitation, the right to sell the property
described in this Paragraph at public or private sale upon five (5) days notice
by Landlord. Tenant hereby agrees to execute such other instruments, necessary
or desirable under applicable law to perfect the security interest hereby
created. Landlord and Xxxxxx agree that this Lease and security agreement serves
as a financing statement and that a copy, photographic or other reproduction
of this portion of this Lease may be filed of record by Landlord and have the
same force and effect as the original. This security agreement and financing
statement also covers fixtures located at the Premises subject to this Lease and
legally described in Exhibit "A" attached hereto and incorporated herein by
reference and is to be filed for record in the real estate records. The record
owner of this property is BEL DE MAR, L.L.C., AN ARIZONA LIMITED LIABILITY
COMPANY.
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EXECUTED BY LANDLORD, this 28th day of December, 2004.
LANDLORD: BEL DE MAR, L.L.C., AN ARIZONA LIMITED LIABILITY COMPANY
By: MainSpring Capital, LLC
Its: Manager
ADDRESS: /s/ Xxxxxxx X. Xxxxxxxxxx
0000 Xxxxx 00xx Xxxxxx, Xxxxx 000 ----------------------------------------
Phoenix, Arizona 85018 By: Xxxxxxx X. Xxxxxxxxxx, III
(000) 000-0000 Its: Presiding Member
EXECUTED BY TENANT, this __________ day of ____________, 20__.
TENANT: LIMELIGHT NETWORKS, INC., A DELAWARE CORPORATION
ADDRESS: /s/ Xxxx Xxxxxxxx
0000 X. 00xx Xxxxxx ----------------------------------------
Tempe, Arizona 85282 By: Xxxx Xxxxxxxx
Its: President
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EXHIBIT "A"
0000 X. 00xx XXXXXX, XXXXX, XXXXXXX 00000
(RENDERING OF SITE PLAN)
* All dimensions are approximate
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EXHIBIT "B"
BUILDING RULES AND REGULATIONS
1. No sign, placard, picture, advertisement, lettering, name or notice
(hereinafter collectively referred to as "sign") shall be inscribed,
displayed, printed or affixed on or to any part of the outside or inside of
the building, the Premises or surrounding area without Xxxxxxxx's written
consent. If such consent is given by Landlord, Landlord may regulate the
manner of display of the sign. Landlord shall reserve the right to remove
any sign which has not been approved by Landlord or is being displayed in a
non-approved manner without notice to and at the expense of the Tenant. All
approved signs shall be installed at expense of Tenant by a person approved
by Landlord.
Tenant shall not place anything or allow anything to be placed near the
glass of any window, door, partition or wall which may appear unsightly
from outside of Premises.
2. The sidewalks, paved area, exits and entrances, shall not be obstructed by
any of the Tenants or used by them for any purpose other than for ingress
to and egress from their respective Premises. The paved areas, exits,
entrances and roof are not for the use of the general public and the
Landlord shall in all cases retain the right to control thereof and prevent
access thereto by all persons whose presence in the judgment of the
Landlord shall be prejudicial to the safety, character, reputation and
interests of the Building or its Tenants; provided, however, that nothing
herein contained shall be construed to prevent access by persons with whom
Tenant normally deals in the ordinary course of Tenant's business unless
such persons are engaged in illegal activities. No Tenant and no employees,
invitees, contractors or subcontractors of any Tenant shall go upon the
roof of the Building. In addition, the Tenant will cause to be removed all
debris, pallets or any outside storage immediately in front or to the rear
of the Premises. If Landlord has to remove the above then Tenant will be
charged a minimum of $300.00 for the removal of the material.
3. Tenant shall not alter any lock or install any new additional locks or any
bolts on any door of the Premises without the written consent of Landlord.
4. The toilet rooms, urinals, wash bowls and other apparatus shall not be used
for any purpose than that for which they are constructed and no foreign
substance of any kind whatsoever shall be thrown therein. The expense of
breakage, stoppage or damage resulting from a violation of this rule shall
be borne by the Tenant who, or whose employees or invitees, shall have
caused it.
5. Tenant shall not overload the floor of the Premises, shall not mark on or
drive nails, screw or drill into the partitions, woodwork or plaster
(except as may be incidental to the hanging of the wall decoration), and
shall not in any way deface the Premises or any part thereof.
6. Tenant shall not use, keep or permit to be used any food or noxious gas or
substance in the Premises, or permit or suffer the Premises to be occupied
or used in a manner offensive or objectionable to the Landlord or other
occupants of the building by reason of noise, odors and/or vibrations, or
interfere in any way with the other Tenants or those having business in the
building. No animals or birds shall be brought in or kept in or about the
Premises or the building. No tenant shall disturb neighboring buildings or
premises, or those having business with such occupants, by the use of any
musical instruments, radio, phonograph, unusual noise, or in any other way.
No tenant shall throw anything out of doors or down the passageways. No
cooking shall be permitted by Tenant in the Premises.
7. Tenant shall not use or keep in the Premises, or the building, any
kerosene, gasoline or inflammable or combustible fluid or material or use
any method of heating or air-conditioning other than that supplied by
Landlord.
8. Xxxxxxxx will direct electricians as to where and how telephone and
telegraph wires are to be introduced. No boring or cutting for or stringing
of wires will be allowed without the consent of Landlord. The location of
telephones, call boxes and other office equipment affixed to the Premises
shall be subject to the approval of Landlord.
9. All keys to the building, offices, rooms and toilet rooms shall be obtained
from Landlord's office. Tenant, upon termination of tenancy, shall deliver
to the Landlord the keys to the building, offices, rooms and toilet rooms
which shall have been furnished and shall pay Landlord the cost of
replacing any lost or of changing the lock or locks opened by such lost key
if Landlord deems it necessary to make such change.
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10. No tenant shall affix to the floor of the Premises any linoleum, tile,
carpet or other familiar floor coverings except as approved by the
Landlord. The expense of repairing any damage resulting from a violation of
this rule or removal of any floor covering shall be borne by the tenant.
11. Landlord reserves the right to exclude or expel from the building any
person who, in the judgment of Landlord, is intoxicated or under the
influence of liquor or drugs, or who shall in any manner do any act in
violation of any rules and regulations of the building.
12. Landlord shall have the right, exercisable without notice and without
liability to tenant, to change name and the street address of the building
on which the Premises are a part.
13. Tenant agrees that it shall comply with all fire regulations that may be
issued from time to time by Landlord, and Xxxxxx also shall provide
Landlord with the name of a designated responsible employee to represent
Tenant in all matters pertaining to fire regulations.
14. Landlord reserves the right by written notice to Tenant, to rescind, alter
or waive any rule or regulation at any time prescribed for the building
when, in Landlord's judgment, it is necessary, or desirable or proper for
the best interest of the building or its tenants. .
15. Without the written consent of Landlord, Tenant shall not use the name of
the building in connection with or in promotion or advertising the business
of Tenant except as Xxxxxx's address. Tenant shall not disturb, solicit or
canvas any occupant of the building and shall cooperate to prevent same.
16. Tenant shall be entitled to use parking spaces during working hours, the
exact location of which may be designated by Landlord. Tenant shall not
park in driveways or loading areas nor reserved parking spaces of other
tenants. Landlord or its agents shall have the right to cause to be removed
any car of Tenant, its employees or agents, that may be parked in
unauthorized areas, and Tenant agrees to save and hold harmless Landlord,
its agents and employees from any such and all claims, losses, damages and
demands asserted or arising in respect to or in connection with the removal
of any such vehicle and for all expenses incurred by Landlord in connection
with such removal. Tenant will from time to time, upon request of Landlord,
supply Landlord with a list of license plate numbers of vehicles owned
and/or operated by its employees and agents.
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EXHIBIT "C"
Specified Alterations:
1. One partition wall that will divide the bullpen East/West. It may be a
modular wall or drywall construction partition for the purpose of creating
two secure spaces, each inaccessible to the other without entering through
an outside entrance or interior common area ("Common Area").
2. Modification of existing HVAC ducting so as to properly control airflow
throughout the Premises after partitioning, utilizing existing rooftop HVAC
units without alterations to hardware or location.
3. Providing access to the Common Area from the northward space via a new
doorway at the north wall or north west corner wall of the Common Area.
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