EXHIBIT 10.38
LEASE
EXODUS COMMUNICATIONS, INC.
ARTICLE I
PARTIES
THIS LEASE, dated August 31, 1998, is made between XXXXXXXX METALS
DEVELOPMENT COMPANY, a Delaware Corporation ("LANDLORD") and EXODUS
COMMUNICATIONS, INC., a Delaware Corporation ("TENANT"). The effective date
shall be the date of execution hereof on behalf of Landlord, as set forth on the
signature page.
ARTICLE II
PREMISES
Landlord hereby leases to Tenant and Tenant leases from Landlord, upon all
of the terms and conditions set forth herein, that certain real property
comprising of 6.17 acre parcel with an approximately 88,489 square feet building
as indicated on Exhibit A attached hereto (the "PREMISES"), of the project known
as Xxxxx Plaza, with an address of 00000 Xxxxx Xxxxxxxxx, Xxxxxxxx, Xxxxxxxx
(the "PROJECT").
ARTICLE III
TERM AND TENANT IMPROVEMENTS
SECTION 3.1 TERM. The term of this Lease (the "TERM") is 10 years
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commencing (1) on the date of the issuance of a Certificate of Occupancy, (2)
the date Tenant commences beneficial use of the premises (for purposes of this
section, beneficial use is defined as the first date on which Tenant's first
customer installs its equipment on the premises and begins receiving services
from Tenant), or (3) 120 days from the effective date of the lease, whichever
occurs first (the "COMMENCEMENT DATE") and ending at midnight, 120 months
thereafter (the "EXPIRATION DATE"), unless sooner terminated pursuant to any
provisions hereof. Landlord and Tenant shall execute a lease commencement
letter to confirm the actual Commencement Date and Expiration Date.
SECTION 3.2 EARLY POSSESSION. It is understood that the Tenant is
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authorized to enter the premises prior to the Commencement Date for the specific
purpose of constructing the tenant inprovements, which entry shall not be deemed
to be a beneficial use of the premises as defined in Section 3.1 hereof. In the
event that (1) Tenant commences beneficial use of the
premises other than for the purpose of construction of the tenant improvements,
(2) a Certficate of Occupancy is issued, or (3) if 120 days pass from the
Effective Date of this Lease, whichever occurs first, Tenant shall begin paying
rent.
SECTION 3.3 HOLDING OVER.
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(a) If Tenant, with Landlord's consent, remains in possession of the
Premises or any part thereof after the expiration of the Term hereof, such
occupancy shall be a tenancy from month-to-month upon all the provisions of this
Lease pertaining to the obligations of Tenant, except all options and rights of
first refusal, if any, granted under the terms of this Lease shall be deemed
terminated and be of no further effect during said month-to-month tenancy.
(b) If Tenant shall hold over after the Expiration Date or earlier
termination of this Lease, and Landlord shall desire to regain possession of the
Premises, then Landlord, after delivery of written notice to Tenant, may
forthwith re-enter and take possession of the Premises without process, or by
any appropriate legal process. Tenant shall indemnify Landlord against all
reasonable liabilities and damages sustained by Landlord by reason of such
retention of possession.
SECTION 3.4 TENANT IMPROVEMENTS. Tenant will cause to be prepared at
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Tenant's expense construction plans, drafts of which are be attached hereto as
Exhibit B, and which may be amended from time to time unilaterally by Tenant.
Landlord's execution of this Lease shall, for purposes of this section,
constitute consent of the Landlord as to those Tenant Improvements listed in
Exhibit B, provided such plans are approved, if approval is required, by any
local zoning agency. For any additional Tenant Improvements that may be
required from time to time, Tenant will cause to be prepared at Tenant's expense
construction plans. Such plans shall be presented to the Landlord in written
form prepared by a professional architect or engineer. The Tenant Improvements
shall be subject to the reasonable consent of the Landlord, which shall not be
unreasonably withheld or delayed. If Landlord shall give its consent, the
consent shall be deemed conditioned upon Tenant acquiring a permit from the
appropriate governmental agency to permit the completion of the work, furnishing
a copy thereof to Landlord prior to the commencement of the work, and compliance
with all conditions of said permit in a prompt and expeditious manner. All work
shall be performed in a good and workmanlike manner. Following completion of
such work, Tenant shall furnish to landlord a set of "as-built" drawings showing
the Tenant Improvements.
SECTION 3.5 SATISFACTION OF CLAIMS FOR LABOR AND MATERIALS. Tenant shall
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pay, when due, all claims for labor and materials furnished to or for Tenant, at
or for use in the premises. Tenant shall give Landlord not less than ten (10)
days notice prior to commencement of such work in the Premises and Landlord
shall have the right to post notices of nonresponsibility in or on the Premises.
If the mechanic's or materialman's lien shall be filed against the Premises, the
building or any part of the Project for work done or claim to have been done or
materials furnished or claimed to have been done or materials furnished or
claimed to have been furnished to or for the benefit of Tenant, Tenant shall
discharge and release such lien of record within fifteen (15) days after Tenant
receives advice of the filing of such lien, at Tenant's expense by the payment
of the amount claimed or by the filing of a bond as prescribed by law. If
Tenant shall fail to do so, Landlord may (but shall not be obligated to)
discharge the same, and the cost thereof, including legal fees, shall be
Additional Rent payable by Tenant within three (3) days following demand by
Landlord. Such discharge by Landlord shall not be deemed to waive or release
the default of Tenant in not discharging the same. The Landlord's consent nor
any provisions of this Lease shall be deemed to be the Agreement or consent of
Landlord to subject Landlord's interest in the Premises or the Project to any
such liens.
SECTION 3.6 LANDLORD'S PROPERTY. Unless Landlord requires the removal,
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all alterations, improvements and conditions which may be made on the Premises,
shall become the property of Landlord and remain upon and be surrendered with
the Premises at the expiration of the term. Notwithstanding the provisions of
this Section, Tenant's trade fixtures, furnishings and equipment, other than
that which was affixed to the Premises so that it cannot be removed without
material damage to the Premises, as well as the items listed in Exhibit "C"
shall remain the property of the Tenant and may be removed by Tenant at the
expiration of the Lease.
SECTION 3.7 LANDLORD'S CONTRIBUTION TO TENANT IMPROVEMENTS. Landlord
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agrees to reimburse Tenant up to an amount of $822,000 for the Tenant
Improvements. Such sum shall be payable within thirty (30) days after receipt
of invoices from Tenant evidencing the same, and the issuance by the local
municipality of a permanent or temporary certificate of occupancy, unless an
Event of Default exists.
SECTION 3.8 REVISIONS TO PLANS FOR TENANT IMPROVEMENTS. Landlord and
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Tenant acknowledge that the Tenant may require changes to the tenant
improvements from time to time after the Effective Date of this Lease. The cost
of any such revisions shall be the Tenant's sole expense and subject to the
reasonable consent of the Landlord, which shall not be unreasonably withheld or
delayed. The Tenant shall furnish the Landlord with copies or all changes,
revisions or amendments to the Tenant improvement plans, and such changes,
revisions and amendments shall be reflected on the "as-built" drawings.
ARTICLE IV
RENT
SECTION 4.1 BASE RENT. Tenant shall pay to Landlord base rent ("Base
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Rent") in the amount of $730,034.00 per year subject to the payment schedule
and rental adjustment set forth below.
SECTION 4.2 PAYMENT OF BASE RENT. As long as Tenant is not in default
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hereunder, Base Rent shall be paid in equal monthly installments, in advance, on
the first business day of
each month of the Term hereof, except the first installment of Base Rent, which
shall be paid upon execution of this Lease by Tenant. Base Rent shall be
prorated if the Term does not commence on the first day of a calendar month or
expire on the last day of a calendar month. Rent shall be paid to Landlord c/x
Xxxxxxxx Metals Development Company, at 0000 Xxxx Xxxxx Xxxxxx, Xxxxxxxx,
Xxxxxxxx 00000, Attn: X. X. Xxxxxxxxxx, Controller, or at such other address as
may be specified in written notice to Tenant.
SECTION 4.3 ANNUAL RENT ADJUSTMENT. The Base Rent shall be increased
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commencing on the first anniversary of the Lease Commencement Date, and on each
anniversary of the Commencement Date of this Lease thereafter in an amount equal
to 3% of the last preceding year's Base Rent.
SECTION 4.4 OTHER CHARGES ADDED TO ANNUAL BASE RENT. Tenant shall pay to
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Landlord, as Additional Rent an annual management and accounting fee of Ten
Thousand and 00/100 Dollars ($10,000.00). Said annual management and accounting
fee shall be payable on the first business day of the first month of each
anniversary during the Lease Term. In addition, Tenant shall pay to Landlord on
the first business day of the first month of each anniversary during the Lease
Term as Additional Rent all property owner association fees and insurance costs
incurred by Landlord and related to the Premises.
SECTION 4.5 ADDITIONAL RENT. All other monetary obligations of Tenant to
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Landlord under the terms of this Lease shall be deemed to be "ADDITIONAL RENT",
and shall be due and payable with the next due monthly installment of Base Rent,
unless otherwise indicated herein.
ARTICLE V
SECURITY DEPOSIT
Tenant shall deposit with Landlord upon execution hereof an amount equal to
$61,000.00 as security for Tenant's faithful performance of Tenant's obligations
hereunder (the "SECURITY DEPOSIT"). It is expressly understood that the
Security Deposit is not an advance rental payment or a measure of Landlord's
damages in the event of default. If Tenant fails to pay rent or other charges
due hereunder, or otherwise defaults with respect to any provision of this
Lease, Landlord may use, apply or retain all or any portion of the Security
Deposit for the payment of any rent or other charge in default or for the
payment of any other sum to which Landlord may become obligated by reason of
Tenant's default, or to compensate Landlord for any loss or damage which
Landlord may suffer thereby. If Landlord so uses or applies all or any portion
of the Security Deposit, Tenant shall within ten days after written demand
therefor, deposit cash with Landlord in an amount sufficient to restore the
Security Deposit to the full amount hereinabove stated and Tenant's failure to
do so shall be a material breach of this Lease. Landlord shall not be required
to keep the Security Deposit separate from its general accounts. If Tenant
performs all of Tenant's obligations hereunder, the Security Deposit, or so much
thereof as previously has not been applied by Landlord, shall be returned
without payment of interest to
Tenant (or, at Landlord's option, to the last assignee, if any, of Tenant's
interest hereunder) following the termination hereof, and after Tenant has
vacated the Premises. No trust relationship is created herein between Landlord
and Tenant with respect to the Security Deposit.
ARTICLE VI
USE
SECTION 6.1 PERMITTED USE. The Premises shall be used and occupied as an
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office and data center and other related purposes, including but not limited to
general warehouse and light industrial use, and for no other purpose.
SECTION 6.2 COMPLIANCE WITH LAW. Tenant shall, at Tenant's expense,
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comply promptly with all present and future applicable statutes, ordinances,
rules, regulations, orders, permits, covenants and restrictions of record, and
any other requirements of any federal, state or local authority in effect during
the Term or any part of the Term hereof, regulating the use or condition of the
Premises, including, but not limited to, environmental matters and employee
health and safety. Tenant shall not use nor permit the use of the Premises in
any unlawful or dangerous manner.
SECTION 6.3 ENVIRONMENTAL MATTERS.
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(a) Tenant shall not use the Premises, or the Project for the storage,
treatment, generation, transportation, processing, handling or disposal of any
Hazardous Substance (defined below) in quantities subject to regulation under
Environmental Laws (defined below). Further, Tenant shall not cause or in any
way directly or indirectly contribute to any condition that is or may be
characterized by any federal, state or local government or agency as an actual
or potential threat or endangerment to health or the environment.
(b) For purposes of this Section 6.3,
(i) "HAZARDOUS SUBSTANCE" means (a) any hazardous wastes or toxic
chemicals, materials, substances or wastes as defined by any
Environmental Laws (defined below), (b) any "oil" as defined by the
Clean Water Act and regulations promulgated thereunder (including crude
oil or any fraction of crude oil), (c) any substance, the presence of
which is now or in the future prohibited, regulated or controlled by any
Environmental Law or any other law, regulation, statute or ordinance of
any of any governmental authority, (d) any asbestos or asbestos
containing materials, (e) any polychlorinated biphenyls, (f) urea
formaldehyde, (g) atmospheric radon at levels over four picocuries per
cubic liter, (h) any solid, liquid, gaseous or thermal irritant or
contaminant, such as smoke, vapor, soot, fumes, alkalis, acids,
chemicals, pesticides, herbicides, sewage, industrial sludge or similar
wastes, and (i) any industrial, nuclear or medical by-products. However
"Hazardous Substances" do not include (A) immaterial quantities of
automotive motor oil; leaked inadvertently from vehicles in the ordinary
course of the operation of the Premises cleaned up in accordance with
reasonable property management procedures and any applicable law, (B)
immaterial quantities of substances customarily and prudently used in
the cleaning and maintenance of the Premises in accordance with
applicable law, or (C) substances customarily used in connection with
any uses permitted by Section 6.1 of this Lease, provided all are in
accordance with all applicable laws and regulations; and
(ii) "ENVIRONMENTAL LAWS" means all applicable present and future laws,
statutes, ordinances, rules, regulations, orders, and determinations of
any governmental authority pertaining to health, underground storage
tank regulation or removal, protection of the environment, natural
resources, wetlands, conservation, wildlife, waste management,
regulation of activities involving Hazardous Substances, and pollution,
or relating to waste disposal or environmental protection with respect
to the exposure to, or manufacture, possession, presence, use,
generation, storage, transportation, treatment, release, emission,
discharge, disposal, abatement, cleanup, removal, remediation or
handling of any Hazardous Substances, including, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, 42
U.S.C. Sec. 9601 et seq., the Superfund Amendments and Reauthorization
Act of 1986, 42 U.S.C. Sec. 9601(20)(D), the Resource Conservation and
Recovery Act, 42 U.S.C. Sec. 9601 et seq., the Federal Water Pollution
Control Act, as amended by the Clean Water Act, 33 U.S.C. Sec. 1251 et
seq., the Clean Air Act, 42 U.S.C. Sec. 7401 et seq. and the Toxic
Substances Control Act, 15 U.S.C. Sec. 2601 et seq., all as amended from
time to time.
(c) At any time during the term of this Lease if Landlord reasonably
believes the Premises may have been contaminated by any Hazardous Substance as a
result of Tenant's breach of this Lease, and within 180 days after the
termination or expiration of this Lease, Landlord and its consultants shall have
the right, but not the obligation, to sample, analyze, inspect and monitor the
air, soil, the surface water, the ground water and any materials or substances
(whether or not belonging to Tenant) in, on or about the Premises, the Building
or the Project, for the purpose of determining the presence of any Hazardous
Substance. If Landlord's reasonable assessment confirms the existence of any
contamination from Hazardous Substances on, under or about the Premises caused
by Tenant's use of or activities in the Premises in breach of this Lease, Tenant
shall reimburse Landlord for the costs of such assessment, and shall in addition
pay for (as Additional Rent) all costs associated with (i) the removal of any
such Hazardous Substance from the Premises, the Building, the Project or any
adjoining property if such Hazardous Substance migrated to any adjoining
property, (ii) the
disposal of the same strictly in accordance with applicable law, and (iii) any
remediation work on the Premises, the Building or the Project required by
Environmental Laws. Landlord or its environmental consultants shall prepare the
work plan for such removal, disposal and remediation, and Landlord shall retain
such engineers or other persons as it deems appropriate to carry out the work
plan. Upon completion of the work, the Premises shall be in compliance with
existing standards of Environmental Laws as determined by Landlord's
environmental consultant, or in the event there are no such standards for any
particular contaminant, then the Premises shall be free of any Hazardous
Substance to a standard of background levels of contamination, meaning the level
of contaminants naturally occurring in or under the air, soil, surface water or
ground water, as determined by Landlord's environmental consultant or whatever
higher levels which, in the reasonable determination of the Landlord's
environmental consultant, presents no significant environmental or health risks.
(d) Tenant shall not, without the consent of Landlord, disclose to any
third party or to the public any information obtained through any environmental
assessment or investigation of the Premises or the Project which is not publicly
known. Notwithstanding the foregoing, any such confidential information may be
disclosed to a governmental agency or to the public if Tenant believes in good
faith that such disclosure is required by pertinent law, and Tenant notifies
Landlord in writing of its intent to disclose such confidential information
within a reasonable period of time before such disclosure.
(e) Tenant shall defend, indemnify and hold Landlord harmless from and
against any and all claims, response or remediation costs, losses, damages,
penalties, other costs, actions, judgments, expenses, and liabilities of every
kind and nature whatsoever (including, without limitation, attorneys' and
consultants' fees and costs and expenses of investigation, remediation or
defense) (i) which arise either directly or indirectly from Tenant's violation
of any Environmental Law, or (ii) which arise either directly or indirectly from
the generation, treatment, storage, spillage, handling, disposal or release on,
under or from the Premises or the Project by Tenant or any of its affiliates,
agents, contractors, employees, or invitees of any Hazardous Substance in
violation of this Lease. This indemnity and the provision of this section shall
survive the termination or expiration of this Lease.
(f) Tenant warrants, represents and covenants that:
(i) its operations on the Premises are not expected to result in the
presence of Hazardous Substances on the Premises or the Project;
(ii) it shall, at its own expense, comply promptly with all
applicable Environmental Laws;
(iii) it shall immediately notify Landlord of any notice of violation,
noncompliance or other written communication by any governmental
authority or others of any violation of any Environmental Laws; and
(iv) it shall immediately inform Landlord if Tenant becomes
aware of or causes a release of Hazardous Substances on the Premises,
the Building, the Project or anywhere in the vicinity of the foregoing.
(g) Landlord warrants, represents and covenants that:
(i) that as of the Lease Commencement Date, or the Date on which the
Tenant enters upon the premises for the purposes of construction of the
tenant improvements, whichever occurs first, that there are no hazardous
substances on the premises.
(ii) that Landlord has complied with all applicable environmental laws.
(iii) that Landlord shall immediately inform Tenant if it becomes aware
of any violation of any environmental laws occurring prior to the Lease
Commencement Date or the date on which the Tenant enters the premises
for the purpose of constructing the Tenant Improvements, whichever
occurs earlier.
(h) Landlord shall defend, indemnify and hold Tenant harmless from and
against any and all claims, response or remediation costs, losses, damages,
penalties, other costs, actions, judgments, expenses and liability of every kind
and nature whatsoever (including, without limitation, attorney's fees and
consultant's fees and costs and expenses of investigation, remediation or
defense) which arise either directly or indirectly from a breach of the
warranties, representations and covenants set forth in (g) hereof.
SECTION 6.4 STATUS OF PROPERTY.
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(a) Tenant hereby accepts the Premises, subject to all applicable zoning,
municipal, county and state laws, ordinances and regulations governing and
regulating the use and condition of the Project and/or Premises, and any
covenants or restrictions of record and accepts this Lease subject thereto and
to all matters disclosed thereby.
(b) Tenant acknowledges that neither Landlord nor Landlord's agent has made
any representation or warranty as to the present or future suitability of the
Premises for the conduct of Tenant's business.
SECTION 6.5 AUCTIONS. Tenant shall not conduct, nor permit to be
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conducted, whether voluntarily or involuntarily, any in-person auctioneering on
the Premises with the public invited, without first having obtained Landlord's
prior written consent. Notwithstanding anything to the contrary in this Lease,
Landlord shall not be obligated to exercise any standard of reasonableness in
determining whether to grant such consent.
SECTION 6.6 SIGNS. No sign, door plaques, advertisement, or notice shall
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be displayed,
painted or affixed by Tenant on any part of the Project, building, parking
facilities, or Premises without the prior written consent of Landlord, which
shall not be unreasonably withheld or delayed. The color, size, character, style
and material and placement shall be submitted to Landlord for approval, and
shall be subject to any applicable governmental laws, ordinances, regulations or
other requirements. Tenant shall remove all such signs at the termination of
this Lease. Such installations and removals shall be made in such manner as to
avoid injury or defacement of the Project and other improvements, and Tenant, at
its sole expense, shall repair any injury or defacement, reasonable wear and
tear excepted.
ARTICLE VII
UTILITIES AND SERVICES
SECTION 7.1 TENANT RESPONSIBILITY. Tenant shall pay for all water, gas,
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heat, light, electric power, telephone, landscaping and lawn maintenance, snow
and ice removal, interior painting, cleaning and repairing windows, interior
wall and floor coverings, repair and maintenance of paving and unpaved surfaces,
lighting, trash removal and other utilities and services (including, without
limitation, janitorial services) supplied to the Premises, together with any
taxes thereon and connection charges to the Premises and other expenses and
costs, whether or not similar in connection with operating, repairing and
maintaining the land and building.
SECTION 7.2 SECURITY MEASURES. Tenant hereby acknowledges that the rent
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payable to Landlord hereunder does not include the cost of guard service or
other security measures, and that Landlord shall have no obligation whatsoever
to provide same. Tenant assumes all responsibility for the protection of
Tenant, its property, its agents and invitees from acts of third parties.
SECTION 7.3 SPECIAL COSTS. Tenant shall be responsible for the
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installation and maintenance of any dilution tanks, holding tanks, settling
tanks, sewer sampling devices, sand traps, grease traps or similar devices which
may be required by the appropriate governmental subdivision for Tenant's use of
the sanitary sewer system. If obstructions or stoppages in the common sewer
lines at the Project result from discharges from tanks and items noted above and
Tenant can be identified by Landlord as being responsible for such obstructions
or stoppages, then Tenant shall pay the entire cost of repair, upon demand, as
Additional Rent.
ARTICLE VIII
TAXES
SECTION 8.1 PAYMENT OF REAL PROPERTY TAXES. Tenant shall pay, as
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Additional Rent, the Real Property Taxes (defined below) applicable to the
Premises during the Term of this Lease. All such payments shall be made within
ten business days after receipt of a written
statement from Landlord setting forth such taxes and a copy of the applicable
real estate tax xxxx or bills. If any Real Property Taxes paid by Landlord
covers any period of time prior to or after the expiration of the Term hereof,
Tenant's Share of such taxes shall be equitably prorated to cover only the
period of time within the tax fiscal year during which this Lease shall be in
effect. Landlord shall have the option, exercisable at any time during the Term,
to elect to have Tenant pay Real Property Taxes in monthly installments, in
advance, based on Landlord's reasonable estimate of Real Property Taxes for such
year.
SECTION 8.2 DEFINITION OF "REAL PROPERTY TAXES." As used herein, the term
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"REAL PROPERTY TAXES" shall include any form of real estate tax or assessment,
general, special, ordinary or extraordinary, and any license fee, commercial
rental tax, gross receipts tax, improvement bond or bonds, levy or tax (other
than inheritance, personal income or estate taxes) imposed on the Landlord or
the Premises by any authority having the direct or indirect power to tax,
including any city, county, state or federal government, or any school,
agricultural, sanitary, fire, street, drainage or other improvement district
thereof, as against any legal or equitable interest of Landlord in the Premises
or in the real property of which the Premises are a part, as against Landlord's
right to rent or obtain other income therefrom, and as against Landlord's
business of leasing the Premises. The term Real Property Taxes also shall
include any tax, fee, levy, assessment or charge (i) in substitution of,
partially or totally, any tax, fee, levy, assessment or charge hereinabove
included within the definition of Real Property Taxes, or (ii) the nature of
which was hereinbefore included within the definition of Real Property Taxes, or
(iii) which is imposed by reason of this transaction or any modifications or
changes hereto.
SECTION 8.3 JOINT ASSESSMENT. If the Premises are not separately
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assessed, Tenant's liability shall be an equitable proportion of the Real
Property Taxes for all of the land and improvements included within the tax
parcel assessed, such proportion to be determined by Landlord from the
respective valuations assigned in the assessor's work sheets or such other
information as may be reasonably available. Landlord's reasonable determination
thereof, in good faith, shall be conclusive.
SECTION 8.4 PAYMENT OF PERSONAL PROPERTY TAXES.
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(a) Tenant shall pay, prior to delinquency, all taxes assessed against and
levied upon trade fixtures, furnishings, equipment and all other personal
property of Tenant contained in the Premises. When possible, Tenant shall cause
said trade fixtures, furnishings, equipment and all other personal property to
be assessed and billed separately from the real property of Landlord.
(b) If any of the Tenant's personal property shall be assessed with the
Landlord's real property, Tenant shall pay Landlord the taxes attributable to
Tenant within ten days after receipt of a written statement setting forth the
taxes applicable to Tenant's property.
SECTION 8.5 SALES AND USE TAX. In addition to the Base Rent required
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hereunder, Tenant shall also be solely responsible for all sales tax applicable
thereon, or applicable to any
other charges or payments due hereunder.
ARTICLE IX
MAINTENANCE, REPAIRS AND ALTERATIONS
SECTION 9.1 TENANT'S OBLIGATIONS.
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(a) Tenant, at Tenant's expense, shall keep in good order, condition and
repair the nonstructural portions of the Premises and every part thereof,
including by way of illustration, all plumbing, heating, air conditioning,
ventilating, electrical, mechanical and lighting facilities and equipment
located within the Premises; light bulbs and tubes; interior surfaces of
exterior walls; ceilings; interior and exterior of windows; interior and
exterior doors and entrance ways; truck doors and dock bumpers; windows and
plate glass; floors and floor coverings; and Tenant's signs located on or about
the Premises or the Project. Tenant shall be obligated to make the repairs
required hereunder, ordinary or extraordinary, foreseen or unforeseen, and
whether or not such portion of the Premises requiring repair, or the means of
repairing the same are reasonably or readily accessible to Tenant, and whether
or not the need for such repairs occurs as a result of Tenant's use, the
elements, or the age of such portion of the Premises. The term "repair" shall
be deemed to include replacements. In addition to Tenant's obligations set forth
herein, Tenant shall, at its expense, repair and replace any and all portions of
the Premises, structural or nonstructural, for which the Tenant shall be
responsible to keep in good order, condition and repair, which are damaged by
Tenant's acts or omissions or the acts or omissions of Tenant's employees,
agents, contractors, invitees, or any others for whom Tenant may be responsible.
(b) Tenant shall pay all charges for pest control and extermination within
the Premises. Landlord represents the premises are delivered free and clear of
infestation.
(c) If Tenant fails to perform (or to commence and diligently pursue such
performance) Tenant's obligations under this Section 9.1 within ten business
days after receipt of written notice thereof, Landlord may at Landlord's option
enter upon the Premises (except in the case of emergency, in which case no
notice shall be required), perform such obligations on Tenant's behalf and/or
put the Premises in good order, condition and repair, and the reasonable cost
thereof shall be due and payable as Additional Rent within ten days following
receipt of a statement of such costs.
(d) On the last day of the Term hereof, or on any sooner termination,
Tenant shall surrender the Premises to Landlord in the same condition as
received, ordinary wear and tear excepted, and the Premises shall be delivered
to Landlord clean, uncontaminated and free of debris. Tenant shall remove its
trade fixtures, furnishings and equipment from the Premises and shall repair any
damage to the Premises occasioned by the installation or removal of its trade
fixtures, furnishings and equipment. Notwithstanding anything contained herein
to the contrary, Landlord's approval of Tenant Improvements pursuant to Sections
3.4 or 3.7 of this Lease shall relieve Tenant of any responsibility to restore
the Premises to pre-Tenant Improvement condition upon termination.
(e) Notwithstanding the foregoing, Tenant shall not be obligated to pay the
costs of
repairs due to damage caused by an insured casualty if insurance proceeds are
available for such repairs, and Tenant did not cause such damage.
SECTION 9.2 LANDLORD'S OBLIGATIONS. Landlord shall keep in good order,
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condition and repair, all of the structural portions of the Premises which shall
be limited to the roof, the exterior walls, the foundation and interior
structural portions (e.g., support beams, etc.). The term "walls" as used in
the preceding sentence shall not include windows, glass or plate glass, interior
doors, special entries, exterior doors, or any other item mentioned in Section
9.1 as being an obligation of Tenant. Landlord represents that all structural
portions of the premises are free of defects and have been constructed in
accordance with plans and specifications previously submitted to Tenant. In
addition, Landlord represents that all non-structural portions of the premises
constructed by the Landlord prior to the entry of the Tenant on the premises for
the purpose of constructing the Tenant Improvements are in good working order.
In the event that such structural portions are not free of defects, or such non-
structural portions are not in good working order, of if Landlord fails to keep
the structural portions of the premises free of defect, then Tenant may perform
such obligations on Landlord's behalf, and the cost thereof shall be charged
against the rent due under the Lease. Landlord shall have no obligation to make
repairs under this Section 9.2 until a reasonable time after receipt of written
notice of the need for such repairs.
SECTION 9.3 ALTERATIONS AND ADDITIONS.
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(a) Any alterations, improvements or additions in the Premises that Tenant
shall desire to make shall be presented to Landlord in written form with
proposed detailed plans prepared by a professional architect or engineer. If
Landlord shall give its consent, the consent shall be deemed conditioned upon
Tenant acquiring a permit from appropriate governmental agencies to perform the
work (if required), furnishing a copy thereof to Landlord prior to the
commencement of the work, and complying with all conditions of said permit in a
prompt and expeditious manner. Prior to the commencement of the work, Tenant
must obtain Landlord's written approval as to (i) the contractor and
subcontractors selected to perform such work, and (ii) if required by Landlord,
a copy of payment and performance bonds acceptable to Landlord naming Landlord
as obligee. All work shall be performed in a good and workmanlike manner.
Tenant shall bear the cost of inspection and/or supervision of such work by
Landlord's representative. If such work is not performed as herein required,
Landlord shall have the right to halt any further work and/or to require Tenant
to either comply with such requirements or restore the Premises to their
condition prior to such work. Following completion of such work, Tenant shall
furnish to Landlord a set of "as-built" drawings showing such alterations,
additions or improvements. Landlord's consent or approval as required herein
shall not be unreasonably withheld or delayed.
(c) Tenant shall pay, when due, all claims for labor or materials
furnished to or for Tenant, at or for use in the Premises. Tenant shall give
Landlord not less than ten days' notice prior to the commencement of any such
work in the Premises, and Landlord shall have the right to post notices of
nonresponsibility in or on the Premises. If any mechanic's or materialmen's
lien shall be filed against the Premises, the Building or any part of the
Project
for work done or claimed to have been done or materials furnished or claimed to
have been furnished to or for the benefit of Tenant, Tenant shall discharge and
release such lien of record within fifteen days thereafter at Tenant's expense,
by the payment of the amount claimed or by filing of a bond as prescribed by
law. If Tenant shall fail to do so, Landlord may (but shall not be obligated to)
discharge the same, and the cost thereof, including legal fees, shall be
Additional Rent payable by Tenant within three days following demand by
Landlord. Such discharge by Landlord shall not be deemed to waive or release the
default of Tenant in not discharging the same. Neither Landlord's consent nor
any provision of this Lease shall be deemed to be the agreement or consent of
Landlord to subject Landlord's interest in the Premises, the Building or the
Project to any such liens.
(d) Unless Landlord requires their removal, all alterations, improvements
and additions which may be made on the Premises, shall become the property of
Landlord and remain upon and be surrendered with the Premises at the expiration
of the Term. Notwithstanding the provisions of this Section 9.3, Tenant's trade
fixtures, furnishings and equipment, other than that which is affixed to the
premises so that it cannot be removed without material damage to the Premises,
and the items listed in Exhibit "C" shall remain the property of Tenant and may
be removed by Tenant subject to the provisions of Section 9.l(e ).
ARTICLE X
INSURANCE AND INDEMNITY
SECTION 10.1 INSURANCE TO BE MAINTAINED BY TENANT. Tenant shall maintain
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at its own cost throughout the Term all insurance coverage specified below.
Tenant's insurance company shall be licensed to do business in the state in
which the Project is located and shall be acceptable to Landlord. All policies
shall designate Tenant and Landlord (and, if Landlord so requests, the managing
agent and/or any lender secured by a lien against the Project) as additional
named insureds, as their interests may appear, and shall state that such
insurance shall remain in effect notwithstanding that the insured has waived its
right of action against any party prior to the occurrence of the loss. On or
before the Commencement Date, Tenant shall deliver to Landlord certificates of
such insurance, and upon the request of Landlord, copies of all policies. Each
certificate shall indicate that the policy may not be canceled or be subject to
reduction in coverage without at least 30 days' prior written notice to
Landlord.
(a) LIABILITY INSURANCE. Tenant shall obtain comprehensive general
-------------------
liability insurance with a combined single limit of not less than $1,000,000 per
occurrence for personal injury and property damage insuring both Landlord and
Tenant against liability arising out of Tenant's use, occupancy and maintenance
of the Premises and all other areas appurtenant thereto, and containing
endorsements for the following coverages:
(i) Contractual liability insurance relating to all obligations of
Tenant pursuant to this Lease, including its indemnification of
Landlord.
(ii) Automobile coverage.
(iii) Employee liability.
(iv) Boiler and machinery coverage (if there are pressure vessels in
the Premises).
(b) WORKMEN'S COMPENSATION. If and to the extent required by applicable
----------------------
law, Tenant shall provide adequate workmen's compensation insurance.
SECTION 10.2 INSURANCE TO BE MAINTAINED BY LANDLORD. Landlord shall keep
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in force during the Term of this Lease insurance covering LOSS or damage to the
Project providing protection against all perils included within the
classification of fire, lightning and extended coverage.
SECTION 10.3 WAIVER OF SUBROGATION. Tenant and Landlord each hereby
---------------------
release the other, and waive their entire right of recovery against the other
for loss, damage or liability in connection with this Lease and/or Tenant's use
or occupancy of the Premises, whether due to the negligence of Landlord or
Tenant or their agents, employees, contractors and/or invitees, but only to the
extent that such loss or damage is actually covered by insurance, and only to
the extent that the insured party has received proceeds of insurance therefor.
SECTION 10.4 INDEMNITY.
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(a) Tenant agrees to pay, and to defend, indemnify and save harmless
Landlord from and against any and all liabilities, losses, damages, costs,
expenses (including reasonable attorneys fees) in connection with any injury to,
or the death of, any person or any damage to or loss of property in, on or about
the Premises arising, directly or indirectly, from Tenant's use or occupancy of
the Premises, excepting herefrom such liabilities, losses, damages, costs,
expenses (including reasonable attorneys fees) arising out of a breach by
Landlord of the provisions set forth in Paragraph 9.2 hereof, or from the
negligence or willful misconduct of Tenant, its agents, employees, contractors
and/or invitees. If any action or proceeding is brought against Landlord by
reason of any such claim, Tenant upon notice from Landlord shall defend the same
at Tenant's expense by counsel satisfactory to Landlord.
(b) Landlord agrees to pay, and to defend, indemnify and save harmless
Tenant from and against any and all liabilities, losses, damages, costs,
expenses (including reasonable attorneys fees) in connection with any injury to,
or the death of, any person or any damage to or loss of property in, on or about
the premises, arising, directly or indirectly, from the breach by Landlord of
any of the terms and conditions set forth in Paragraph 9.2 hereof.
SECTION 10.5 EXEMPTION OF LANDLORD FROM LIABILITY. Tenant hereby agrees
------------------------------------
that Landlord shall not be liable for injury to Tenant's business or any loss of
income therefrom or for damage to the goods, wares, merchandise or other
property of Tenant, Tenant's employees, invitees, customers, or any other person
in or about the Premises, for any reason whatsoever (other than a breach of this
Lease caused by Landlord's willful misconduct); nor shall Landlord be liable for
injury to the person of Tenant, Tenant's employees, agents or
contractors, whether such damage or injury is caused BY or results from fire,
steam, electricity, gas, water, wind or rain, or from the breakage, leakage,
obstruction or other defects of pipes, sprinklers, wires, appliances, plumbing,
air conditioning or lighting fixtures, robbery, assault, or theft, whether the
said damage or injury results from conditions arising upon the Premises or upon
other portions of the Project, or from other sources or places and regardless of
whether the cause of such damage or injury or the means of repairing the same is
inaccessible to Tenant. Landlord shall not be liable for any damages arising
from any act or neglect of any other tenant, if any, of the Project. In the
event Landlord installs a security system in the Project or engages the services
of a professional security provider, such action shall in no way increase
Landlord's liability for occurrences and/or consequences such a system is
designed to avert or detect.
ARTICLE XI
DAMAGE OR DESTRUCTION
SECTION 11.1 DEFINITIONS.
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(a) "PARTIAL DAMAGE" means damage or destruction to (i) the Project to the
extent that the cost of repair is less than 50% of the fair market value of the
Project immediately prior to such damage or destruction, or (ii) the Premises to
the extent that the damage can be repaired within 120 days following the date of
such damage, as reasonably determined by Landlord.
(b) "SUBSTANTIAL DESTRUCTION" means damage or destruction to (i) the
Project to the extent that the cost of repair is 50% or more of the fair market
value of the Project immediately prior to such damage or destruction, or (ii)
the Premises to the extent that the damage cannot be repaired within 120 days
following the date of such damage, as reasonably determined by Landlord.
SECTION 11.2 PARTIAL DAMAGE. If at any time during the Term of this
--------------
Lease there is damage which falls within the classification of Partial Damage,
Landlord shall diligently proceed to repair such damage and this Lease shall
continue in full force and effect.
SECTION 11.3 SUBSTANTIAL DESTRUCTION. If at any time during the Term of
-----------------------
this Lease there is damage which falls into the classification of Substantial
Destruction, Landlord shall have the option to either (i) repair such damage
(such repair to be completed in ninety (90) days of the date of substantial
destruction) in which event this Lease shall continue in full force and effect,
or (ii) terminate this Lease upon written notice to Tenant within 90 DAYS after
the occurrence of such damage, effective as of the date of such Substantial
Destruction.
SECTION 11.4 ABATEMENT OF RENT. If Landlord repairs or restores the
-----------------
Premises pursuant to the provisions of this Article XIII, the Base Rent payable
hereunder for the period during which such damage, repair or restoration
continues shall be abated in proportion to the degree to which Tenant's use of
the Premises is impaired; provided, however, that there shall
be no abatement of Base Rent if the damage was caused in whole or in part by
Tenant, its agents, employees, contractors and/or invitees. Except for abatement
of Base Rent, if any, Tenant shall have no claim against Landlord as a result of
any such damage.
SECTION 11.5 LIMITATION ON OBLIGATION. Notwithstanding the foregoing,
------------------------
Landlord shall not be obligated to repair or restore the Premises and/or the
Project or any portion thereof in the event of Partial Damage or Substantial
Destruction occurring during the last 24 months of the Term, or in the event
that insurance proceeds available to Landlord (reduced by any proceeds payable
to any lender secured by a lien against the Premises) are insufficient to cover
the costs of repair and/or restoration.
ARTICLE XII
CONDEMNATION
If the Premises or the Project or any portion thereof are taken under the
power of eminent domain, or sold under the threat of the exercise of said power
(all of which are herein called "CONDEMNATION"), this Lease shall terminate as
to the part so taken as of the date the condemning authority takes title or
possession, whichever first occurs. If more than 5O% of the rentable area of
the Premises shall be taken by Condemnation, Tenant may, at Tenant's option to
be exercised in writing only within ten days after Landlord shall have given
Tenant written notice of such Condemnation (or in the absence of such notice,
within ten days after the condemning authority shall have taken possession),
terminate this Lease as of the date the condemning authority takes such
possession. Landlord also shall have an option to terminate this Lease by
notice to Tenant given within the time limits set forth above if in Landlord's
opinion reasonably exercised, it would not be economically feasible to continue
leasing the Premises to Tenant. If this Lease is not terminated in accordance
with the foregoing, this Lease shall remain in full force and effect as to the
portion of the Premises remaining, except that the Base Rent shall be reduced in
the proportion that the square feet of the Premises which is taken bears to the
total square feet of the Premises. Tenant shall have no claim against Landlord
as a result of any such Condemnation. Any award for the Condemnation of all or
any part of the Premises under the power of eminent domain or any payment made
under threat of the exercise of such power shall be the property of Landlord,
whether such award shall be made as compensation for diminution in value of the
leasehold or for the taking of the fee, or as severance damages; provided,
however, that Tenant shall be entitled to pursue a separate claim against the
condemning authority, for moving expenses, loss of business claims, and for the
taking of any property which does not become the property of Landlord upon
expiration of this Lease, provided that any award to Tenant shall not result in
a diminution of any award to Landlord. In the event that this Lease is not
terminated by reason of such Condemnation, Landlord shall, at Landlord's
expense, promptly repair any damage to the Premises caused by such Condemnation.
ARTICLE XIII
ASSIGNMENT AND SUBLETTING
SECTION 13.1 LANDLORD'S CONSENT REQUIRED. Except as required in
---------------------------
connection with the granting of a security interest in connection with a senior
secured credit facility provided by Xxxxxxx, Xxxxx & Co., Tenant shall not
voluntarily or by operation of law assign, transfer, mortgage, sublet, or
otherwise transfer or encumber all or any part of Tenant's interest in this
Lease or in the Premises, without Landlord's prior written consent, which
consent shall not be unreasonably withheld, provided (i) such assignment is to
an entity/individual(s) whose financial integrity is reasonably sound; and (ii)
proof thereof satisfactory to Landlord has been delivered to Landlord at least
ten (10) days prior to the effective date of any such transfer. Any attempted
assignment, transfer, mortgage, encumbrance or subletting without such consent
shall be void, and shall constitute a breach of this Lease. Any sale,
assignment or other transfer of controlling stock interest in Tenant shall
constitute an "assignment" for purposes hereof.
SECTION 13.2 NO RELEASE OF TENANT. Regardless of Landlord's consent, no
--------------------
subletting or assignment shall release Tenant of Tenant's obligation or alter
the primary liability of Tenant to pay the rent and to perform all other
obligations to be performed by Tenant hereunder. The acceptance of rent by
Landlord from any other person shall not be deemed to be a waiver by Landlord of
any provision hereof. Consent to one assignment or subletting shall not be
deemed consent to any subsequent assignment or subletting. In the event of
default by an assignee of Tenant or any successor of Tenant, in the performance
of any of the terms hereof, Landlord may proceed directly against Tenant without
the necessity of exhausting remedies against such assignee or successor.
Landlord may consent to subsequent assignments or subletting of this Lease or
amendments or modifications to this Lease with assignees of Tenant, without
notifying Tenant, or any successor of Tenant and without obtaining its or their
consent thereto and such action shall not relieve Tenant of liability under this
Lease.
SECTION 13.3 ATTORNEY'S FEES. In the event Tenant shall assign or sublet
---------------
the Premises, then Tenant shall pay Landlord's reasonable attorney's fees
incurred in connection therewith.
SECTION 13.4 LANDLORD'S OPTION TO TERMINATE. Except in connection with
------------------------------
any assignment or sublease associated with the security interest granted in
connection with a senior secured credit facility provided by Xxxxxxx Sachs &
Co., in the event that at any time during the Term, Tenant desires to assign
this Lease or to sublet all or part of the Premises, and provided that Tenant is
in compliance with the provisions of Section 13.1 and 13.2 hereof, Tenant shall
notify Landlord in writing of the terms of the proposed assignment or subletting
and the area so proposed to be sublet and Landlord shall have the option to
terminate this Lease wholly in the event of a proposed assignment or sublet of
the whole Premises, or partially as to the portion of the Premises proposed to
be sublet, upon written notice to Tenant within 45 days after receipt of notice
of Tenant's intention to assign or sublet. If Landlord's election to terminate
involves only a portion of the Premises, the rent specified in this Lease shall
be adjusted proportionately on the basis of the number of square feet retained
by Tenant
and this Lease shall continue in full force and effect in all other respects.
ARTICLE XIV
DEFAULTS; REMEDIES
SECTION 14.1 DEFAULTS. The occurrence of any one or more of the
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following events ("EVENT(S) OF DEFAULT") shall constitute a material default and
breach of this Lease by Tenant:
(a) The abandonment of the Premises by Tenant.
(b) The failure by Tenant to make any payment of Base Rent or Additional
Rent or any other payment required to be made by Tenant hereunder, as and when
due, where such failure shall continue for a period of seven (7) days after
written notice thereof from Landlord to Tenant. In the event that Landlord
serves Tenant with a notice to pay rent or quit pursuant to applicable unlawful
detainer statutes, such notice to pay rent or quit shall also constitute the
notice required by this section.
(c) The failure by Tenant to observe or perform any of the covenants,
conditions or provisions of this Lease to be observed or performed by Tenant,
other than described in Section 14.1(b) above, where such failure shall continue
for a period of 30 days after written notice thereof from Landlord to Tenant;
provided, however, that if the nature of Tenant's default is such that more than
30 days are required for its cure, then Tenant shall not be deemed to be in
default if Tenant commences such cure within the 30 day period and thereafter
diligently prosecutes such cure to completion.
(d) (i) The making by Tenant of any general arrangement or assignment for
the benefit of creditors; (ii) Tenant becomes a "debtor" as defined in 11 U.S.C.
Section 101 or any successor statute thereto or any other law or statute
relating to bankruptcy (unless, in the case of a petition filed against Tenant,
the same is dismissed within sixty days); or (iii) the appointment of a trustee
or receiver to take possession of substantially all of Tenant's assets or of
Tenant's interest in this Lease, where possession is not restored to Tenant
within 30 days.
SECTION 14.2 REMEDIES. Upon the occurrence of an Event of Default by
--------
Tenant, Landlord may, at any time thereafter, with or without notice or demand:
(a) Terminate this Lease and Tenant's right of possession of the Premises,
in which case the rent due for the balance of the Term shall become immediately
due and payable. In addition, Landlord shall be entitled to recover from Tenant
all damages incurred by Landlord by reason of Tenant's default including, but
not limited to: the cost of recovering possession of the Premises; the expense
of reletting, including, without limitation, costs of renovation and alteration
of the Premises, attorney's fees, and real estate commission(s) paid to obtain a
new tenant; and that portion of the leasing commission paid by Landlord pursuant
to Article XV
applicable to the unexpired term of this Lease.
(b) Terminate Tenant's right to possession of the premises without
terminating this Lease, in which event Landlord may, but shall not be obligated
to, relet the Premises, or any part thereof, for the account of Tenant, for such
rent and term and upon such other conditions as are acceptable to Landlord. For
purposes of such reletting, Landlord is authorized to redecorate, repair, alter
and improve the Premises to the extent deemed necessary in Landlord's sole
discretion. Until Landlord relets the Premises, Tenant shall remain obligated
to pay rent to Landlord as provided in this Lease. If and when the Premises are
relet and if a sufficient sum is not realized from such reletting after payment
of all Landlord's expenses of reletting (including, without limitation, rental
concessions to new tenants, repairs, alterations, legal fees and brokerage
commissions) to satisfy the payment of rent due under this Lease for any month,
Tenant shall pay Landlord any such deficiency upon demand. Tenant agrees that
Landlord may file suit to recover any sums due under this Section from time to
time and that such suit or recovery of any amount due Landlord shall not be any
defense to any subsequent action brought for any amount not previously reduced
to judgment in favor of Landlord. Tenant also agrees that if Landlord relets
the Premises for a term which equals or exceeds the Term of this Lease, then the
difference in rent between Tenant's rental obligations hereunder and the sum
realized from such reletting for the balance of the Term, being then
ascertainable, shall become immediately due and payable, at Landlord's option,
and Landlord shall be entitled to bring one suit to recover the entire amount of
such difference.
(c) Re-enter and repossess the Premises and remove all persons and effects
therefrom, by summary proceeding, ejectment or other legal means as may be
necessary. Landlord shall have no liability by reason of any such re-entry,
repossession or removal.
(d) Recover from Tenant, to the extent permitted under the laws of the
state in which the Project is located, the value and/or cost of all concessions
to Tenant under this Lease; including any sums reimbursed to Tenant for Tenant
Improvements; net of all repayments made by Tenant to Landlord.
(e) Without terminating this Lease and without entering into possession of
the Premises, continue this Lease in effect whether or not Tenant shall have
abandoned the Premises, and in such event Landlord shall be entitled to enforce
all of Landlord's rights and remedies under this Lease, including the right to
recover the rent as it becomes due hereunder.
(f) Pursue any other remedy now or hereafter available to Landlord in
equity or at law in the state in which the Project is located; any remedy or
election hereunder not being exclusive, but rather, wherever possible, being
cumulative with all other remedies at law or in equity.
This Lease shall not be deemed to be terminated by Landlord's entry on the
Premises, or by any other act unless Landlord specifically expresses its intent
to terminate this Lease, in writing duly executed on behalf of Landlord.
SECTION 14.3 RIGHTS UPON POSSESSION. If Landlord takes possession
----------------------
pursuant to this Article 14, with or without terminating this Lease, Landlord
may, at its option and upon notice to Tenant, enter into the Premises, remove
Tenant's alterations, signs, personal property, equipment and other evidence of
tenancy, and store them at Tenant's risk and expense or dispose of them as
Landlord may see fit except with respect to equipment owned by third-party
customers of Tenant, which is labeled as such, in which case Landlord will use
its best efforts to provide 30 days notice to such third-party customers of such
intent to dispose, and take and hold possession of the Premises; provided,
however, that if Landlord elects to take possession only without terminating
this Lease, such entry and possession shall not terminate this Lease or release
Tenant or any guarantor, in whole or in part, from the obligation to pay the
Base Rent reserved hereunder for the full Term or from any other obligation
under this Lease or any guaranty thereof.
SECTION 14.4 NO WAIVER. If Landlord shall institute proceedings against
---------
Tenant and a compromise or settlement thereof shall be made, the same shall not
constitute a waiver of any other covenant, condition or agreement herein
contained, nor of any of Landlord's rights hereunder. No waiver by Landlord of
any breach shall operate as a waiver of such covenant, condition or agreement
itself, or of any subsequent breach thereof. Landlord's consent to, or approval
of, any act shall not be deemed to render unnecessary the obtaining of
Landlord's consent to or approval of any subsequent act by Tenant. No payment
of rent BY Tenant or acceptance of rent by Landlord shall operate as a waiver of
any breach or default by Tenant under this Lease. No payment by Tenant or
receipt by Landlord of a lesser amount than the monthly installment of rent
herein stipulated shall be deemed to be other than a payment on account of the
earliest unpaid rent, nor shall any endorsement or statement on any check or
communication accompanying a check for the payment of rent be deemed an accord
and satisfaction, and Landlord may accept such check or payment without
prejudice to Landlord's right to recover the balance of such rent or to pursue
any other remedy provided in this Lease. No re-entry by Landlord, and no
acceptance by Landlord of keys from Tenant, shall be considered an acceptance of
a surrender of the Lease.
SECTION 14.5 RIGHT OF LANDLORD TO CURE TENANT'S DEFAULT. If an Event
------------------------------------------
of Default shall occur, then Landlord may (but shall not be obligated to) make
such payment or do such act to cure the Event of Default, and charge the amount
to the expense thereof, together with interest thereon at the Interest Rate (as
defined in Section 17.3 below), to Tenant. Such payment shall be due and
payable upon demand; however, the making of such payment or the taking of such
action by Landlord shall not be deemed to cure the Event of Default or to stop
Landlord from the pursuit of any remedy to which Landlord would otherwise be
entitled.
SECTION 14.6 DEFAULT BY LANDLORD. Landlord shall not be in default
-------------------
unless Landlord fails to perform obligations required of Landlord within a
reasonable time, but in no event later than thirty days after written notice by
Tenant to Landlord and to each lender secured by a lien against the Project
whose name and address shall have previously been furnished to Tenant in
writing, specifying the obligation Landlord has failed to perform; provided,
however, that if the nature of Landlord's obligation is such that more than
thirty days are required for performance, then Landlord shall not be in default
if Landlord commences performance within such thirty day period and thereafter
diligently prosecutes the same to completion.
SECTION 14.7 LATE CHARGES. Tenant hereby acknowledges that late payment
------------
by Tenant to Landlord of rent and other sums due hereunder will cause Landlord
to incur costs not contemplated by this Lease, the exact amount of which will be
extremely difficult to ascertain. Such costs include, but are not limited to,
processing and accounting charges, and late charges which may be imposed on
Landlord by the terms of any mortgage or trust deed covering the Premises.
Accordingly, if any installment of rent or any other sum due from Tenant shall
not be received by Landlord or Landlord's designee within five business days
after such amount shall be due then, without any requirement for notice to
Tenant (notwithstanding Section 14.1(b)), Tenant shall pay to Landlord a late
charge equal to four (4) percent of such overdue amount. The parties hereby
agree that such late charge represents a fair and reasonable estimate of the
costs Landlord will incur by reason of late payment by Tenant. Acceptance of
such late charge by Landlord shall in no event constitute a waiver of Tenant's
default with respect to such overdue amount, nor prevent Landlord from
exercising any of the other rights and remedies granted hereunder. In the event
that a late charge is payable hereunder, whether or not collected, for three
consecutive installments of Base Rent, then at Landlord's option Base Rent shall
become due and payable quarterly in advance, rather than monthly,
notwithstanding Article IV or any other provision of this Lease to the contrary.
ARTICLE XV
BROKERS
Each party represents and warrants to the other that it has not dealt with
any broker, finder or similar agent in connection with any transaction
contemplated hereunder except for C.B. XXXXXXX XXXXX, INC., whose fee is the
responsibility of Landlord under a separate written agreement. Each party
hereby covenants and agrees to defend, indemnify, hold harmless and reimburse
the other party for, from and against all claims of any kind of any other
brokers, finders or similar agents purporting to represent the indemnifying
party in connection with any transaction contemplated hereunder.
ARTICLE XVI
ESTOPPEL CERTIFICATE
SECTION 16.1 TENANT CERTIFICATION. Tenant shall, at any time upon not
--------------------
less than twenty (20) days' prior notice from Landlord, execute, acknowledge and
deliver to Landlord a statement in writing certifying that (i) this Lease is
unmodified and in full force and effect (or, if modified, stating the nature of
such modifications and certifying that this Lease, as so
modified, is in full force and effect); (ii) the amount(s) of and the date to
which the rent and other charges are paid in advance, if any; (iii) that the
Term has commenced and specifying the Commencement and Expiration Dates; (iv)
that all Tenant Improvements required by the Lease have been made to Tenant's
satisfaction; (v) that there are no existing set-offs, charges, claims or
defenses against the enforcement of any right hereunder; (vi) that there are
not, to Tenant's knowledge, any uncured defaults on the part of Landlord
hereunder, or specifying such defaults if any are claimed; and (vii) any other
information as may be reasonably requested by Landlord. Any such statement may
be conclusively relied upon by any prospective purchaser or encumbrancer of the
Premises.
SECTION 16.2 FAILURE TO PROVIDE CERTIFICATION. At Landlord's option,
--------------------------------
Tenant's failure to deliver such statement within such time shall be a material
breach of this Lease or shall be conclusive upon Tenant as to all information
set forth in such statement.
SECTION 16.3 TENANT FINANCIAL STATEMENTS. If Landlord desires to
---------------------------
finance, refinance, or sell the Premises, or any part thereof, it may request
financial statements from Tenant. Within twenty (20) days of a request therefor
Tenant shall deliver to Landlord or to any lender or purchaser designated by
Landlord, such financial statements of Tenant as may be reasonably required by
such lender or purchaser. All such financial statements shall be received by
Landlord and such lender or purchaser in confidence and shall be used only for
the purposes herein set forth.
ARTICLE XVII
MISCELLANEOUS
SECTION 17.1 LANDLORD'S LIABILITY. The term "Landlord" as used herein
--------------------
shall mean only the owner or owners at the time in question of the fee title or
a tenant's interest in a ground lease of the Premises. In the event of any
transfer of such title or interest, Landlord herein named (and in case of any
subsequent transfers, then the grantor) shall be relieved from and after the
date of such transfer of all liability in respect of Landlord's obligations
thereafter to be performed, provided that any funds in the hands of Landlord or
the then grantor at the time of such transfer, in which Tenant has an interest,
shall be delivered to the grantee. The obligations contained in this Lease to
be performed by Landlord shall, subject as aforesaid, be binding on Landlord's
successors and assigns, only during their respective periods of ownership.
Neither Landlord nor its agents, whether disclosed or undisclosed, shall have
any personal liability under any provision of this Lease. If Landlord defaults
in the performance of any of its obligations hereunder or otherwise, Tenant
shall look solely to Landlord's equity, interest and rights in the Land or
Building (or any applicable proceeds of insurance) for satisfaction of Tenant's
remedies on account thereof.
SECTION 17.2 SEVERABILITY. The invalidity of any provision of this Lease
------------
as determined by a court of competent jurisdiction, shall in no way affect the
validity of any other provision hereof.
SECTION 17.3 INTEREST ON PAST-DUE OBLIGATION. Except as expressly herein
-------------------------------
provided, any amount due to Landlord not paid when due shall bear interest at
the lesser of 12% per annum or the maximum rate then allowable by law from the
date due (the "Interest Rate"). Payment of such interest shall not excuse or
cure any default by Tenant under this Lease. Interest shall not be payable on
late charges incurred by Tenant nor on any amounts upon which late charges are
paid by Tenant until 30 days after the due date of such payment.
SECTION 17.4 NOTICES. Notices shall be in writing and shall be delivered
-------
to the following address(es):
If to Landlord: Xxxxxxxx Metals Development Company
0000 Xxxx Xxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attn: Corporate Secretary
Fax: 000-000-0000
with a copy to: Xxxxxxxx Metals Development Company
0000 Xxxxxxx Xxxxx
Xxxxx Xxxxxxxx, Xxx Xxxx 00000
Attn: Xxxxxxxxx X. Xxxxxxx
Fax: 000-000-0000
If to Tenant: Exodus Communications, Inc.
0000 Xxx Xxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxx, Chief Operating
Officer and Chief Financial Officer
Fax: 408-348--2206
with a copy to: Exodus Communications, Inc.
0000 Xxx Xxxxx Xxxxxxxxxx
Xxxxx Xxxxx, XX 00000
Attn: General Counsel
Fax: 000-000-0000
A notice shall be delivered by: (a) prepaid U.S. express, registered or
certified mail or prepaid express courier service; (b) hand delivery during
regular business hours; or (c) telecopy with an original, signed copy of the
notice delivered in the manner described in (a) or (b). The notifying party,
with the other party's cooperation, shall obtain a receipt evidencing delivery.
A notice shall be effective upon receipt or refusal to accept receipt, except
that a telecopy notice shall be effective upon confirmation of receipt by the
receiving party. Any notice provided in a manner not specified in this Lease
shall not be effective unless the parties otherwise agree. A party may change
its address or fax number for purposes of this section by giving the other party
notice to that effect, except that upon Tenant's taking possession of the
Premises, the Premises, in addition to the address set forth above, shall
constitute Tenant's address for notice purposes. Unless otherwise specified in
this Lease, "notice" includes any communication required or permitted by this
Lease. A copy of all notices required or permitted to be given to Landlord
hereunder shall be concurrently transmitted to such party or
parties at such addresses as Landlord may from time to time hereafter designate
by notice to Tenant.
SECTION 17.5 BINDING EFFECT; CHOICE OF LAW. Subject to any provisions
-----------------------------
hereof restricting assignment or subletting by Tenant, this Lease shall bind the
parties, their personal representatives, successors and assigns. This Lease
shall be governed by the laws of the state in which the Project is located.
SECTION 17.6. SUBORDINATION.
-------------
(a) This Lease shall be subordinate to any ground lease, mortgage, deed of
trust, assignment of lease, or any other hypothecation or security
(collectively, "Mortgage") now or hereafter placed upon the real property of
which the Premises are a part and to any and all advances made on the security
thereof and to all renewals, modifications, consolidations, replacements and
extensions thereof. If the holder of any obligation, note or reversionary
interest secured or evidenced by a Mortgage (the "Mortgagee") shall elect to
have this Lease superior to the lien of its Mortgage and shall give written
notice thereof to Tenant, this Lease shall be deemed superior to such Mortgage
whether this Lease is dated prior or subsequent to the date of said Mortgage or
the date of recording thereof.
(b) Tenant agrees to execute any documents reasonably required by Landlord
to effectuate an attornment, a subordination or to make this Lease superior to
the lien of any Mortgage. Tenant's failure to execute such documents within
twenty (20) days after written demand shall constitute a material default by
Tenant hereunder, or, at Landlord's option, Landlord shall execute such
documents on behalf of Tenant as Tenant's attorney-in-fact. Tenant does hereby
make, constitute and irrevocably appoint Landlord as Tenant's attorney-in-fact
and in Tenant's name, place and stead, to execute such documents in accordance
with this Section 17.6.
(c) Tenant agrees to give any Mortgagee by certified mail, return receipt
requested, a copy of any notice of default served upon Landlord, provided that
before such notice Tenant has been notified in writing of the address of such
Mortgagee. Tenant further agrees that if Landlord shall have failed to cure
such default within the time provided for in this Lease, then Mortgagee shall
have an additional 30 days within which to cure such default; provided, however,
that if such default cannot be reasonably cured within that time, then such
Mortgagee shall have such additional time as may be necessary to cure such
default (including, without limitation, the commencement of foreclosure
proceedings, if necessary), in which event this Lease shall not be terminated or
rent abated while such remedies are being so diligently pursued. In the event
of the sale of the Project or the Building, by foreclosure or deed in lieu
thereof, the Mortgagee or purchaser at such sale shall not be (a) responsible
for any act, omission, or default by any prior landlord (including Landlord),
(b) be responsible for the return of the Security Deposit, or the payment of any
tenant allowance or other concession, (c) be bound by any rent paid more than
one month in advance, or (d) be subject to any offset, defense, or counterclaim
against any prior landlord (including Landlord). Tenant agrees to attorn to
such Mortgagee or purchaser as its lessor under this Lease.
(d) If, in connection with obtaining the construction or permanent
financing for the Premises or the Project, any lender (or Mortgagee) shall
request reasonable modifications of this Lease as a condition to such financing,
Tenant shall promptly execute a modification of this Lease, provided such
modifications do not increase Base Rent or materially adversely affect the
leasehold interest hereby created or Tenant's reasonable use and enjoyment of
the Premises in accordance with Section 6.1. Tenant and any guarantor shall
each, prior to execution and throughout the Term, upon request from time to
time, provide such financial information and documentation about itself to
Landlord or Mortgagee as may be requested.
SECTION 17.7 ATTORNEY'S FEES. If either party named herein brings an
---------------
action to enforce the terms hereof or declare rights hereunder, the prevailing
party in any such action, on trial or appeal, shall be entitled to reasonable
attorney's fees to be paid by the losing party as determined by the court.
SECTION 17.8 LANDLORD'S ACCESS. Landlord and Landlord's agents shall
-----------------
have the right to enter the Premises at reasonable times in compliance with
Tenant's reasonable rules and regulations for the purposes of (a) inspecting the
same; (b) showing the same to prospective purchasers, lenders, or tenants; (c)
making such alterations, repairs, improvements or additions to the Premises or
the Project as Landlord may deem necessary or desirable (but without adversely
impacting Tenant's business), but without any obligation to do so except as
specifically set forth herein; and (d) taking air, water or soil samples,
samples of other materials or substances in or about the Premises or the
Project, and conducting such other tests or analyses as Landlord deems in its
sole discretion to be desirable in connection with investigating any potential
environmental claim or in connection with monitoring Tenant's activities in or
about the Premises for compliance with the terms of this Lease. The foregoing
shall not impose upon Landlord any obligation to undertake such investigation or
monitoring activities. Landlord may at any time, with the consent of the
Tenant, which consent shall not be unreasonably withheld, place on or about the
premises any ordinary "for sale" signs, and Landlord may at any time during the
last 12 months of the Term hereof place on or about the Premises any ordinary
"For Lease", signs, all without reduction of rent or liability to Tenant.
SECTION 17.9 MERGER. The voluntary or other surrender of this Lease by
------
Tenant, or a mutual cancellation thereof, or a termination by Landlord, shall
not work a merger, and shall, at the option of Landlord either: (i) terminate
all or any existing subtenancies, or (ii) operate as an assignment to Landlord
of any or all of such subtenancies.
SECTION 17.10 QUIET POSSESSION. Upon Tenant paying the rent for the
----------------
Premises and observing and performing all of the covenants, conditions and
provisions on Tenant's part to be observed and performed hereunder, Tenant shall
have quiet possession of the Premises subject to all of the provisions of this
Lease and any Mortgage to which this Lease is subordinate, and any easements,
conditions and restrictions of record affecting the land on which the Building
is situated.
SECTION 17.11 EASEMENTS. Landlord reserves to itself the right, from time
---------
to time, to
grant such easements, rights, and dedications that Landlord deems necessary or
desirable, and to cause the recordation of site plans, parcel maps, restrictions
and similar instruments so long as such easements, rights, dedications, maps and
restrictions do not unreasonably interfere with the use of the Premises by
Tenant, in accordance with Section 6.1 and do not materially increase Tenant's
costs or expenses or materially impair Tenant's ability to conduct its business.
Tenant shall sign any of the aforementioned documents upon request of Landlord
and failure to do so shall constitute a material breach of this Lease.
SECTION 17.12 PERFORMANCE UNDER PROTEST. If at any time a dispute shall
-------------------------
arise as to any amount or sum of money to be paid by one party to the other
under the provisions hereof, the party against whom the obligation to pay the
money is asserted shall have the right to make payment "under protest" and such
payment shall not be regarded as a voluntary payment, and there shall survive
the right on the part of said party to institute a suit for recovery of such
sum. If it shall be adjudged that there was no legal obligation on the part of
said party to pay such sum or any part thereof, said party shall be entitled to
recover such sum with interest or so much thereof as it was not legally required
to pay under the provisions of this Lease.
SECTION 17.13 AUTHORITY. If Tenant is a corporation, trust, or general or
---------
limited partnership, each individual executing this Lease on behalf of such
entity represents and warrants that he or she is duly authorized to execute and
deliver this Lease on behalf of said entity, that the entity is duly formed and
validly existing and qualified to do business in the state in which the Project
is located, and that the entity has full power and authority to enter into this
Lease.
SECTION 17.14 SURVIVAL. Each term, agreement obligation or provision of
--------
this Lease to be performed by Tenant and Landlord shall be construed to be both
a covenant and a condition, all of which shall survive the expiration or
termination of this Lease and any renewals or extensions of this Lease.
SECTION 17.15 CONFLICT. Any conflict between the typewritten or printed
--------
provisions of this Lease and the handwritten provisions shall be controlled by
the handwritten provisions, provided such handwritten revisions are signed and
initialled by both Landlord and Tenant.
SECTION 17.16 ABANDONED PROPERTY. Any of Tenant's personal property left
------------------
on or in the Premises, the Project or the Common Areas after the Expiration Date
or earlier termination of this Lease shall be deemed to be abandoned, and, at
Landlord's option, title shall pass to Landlord under this Lease, or Landlord
may cause the same to be removed and stored, or disposed of, and Tenant shall be
liable for all Costs incurred by Landlord.
SECTION 17.17 WAIVER OF JURY TRIAL. Tenant hereby waives trial by jury
--------------------
in any action, proceeding or counterclaim brought by Landlord against Tenant
with respect to any matter whatsoever arising out of or in any way connected
with this Lease, the relationship of Landlord and Tenant hereunder or Tenant's
use or occupancy of the Premises. In the event Landlord commences any
proceedings for nonpayment of rent, Tenant shall not interpose any
counterclaims. This shall not, however, be construed as a waiver of Tenant's
right to assert such claims in any separate action brought by Tenant.
SECTION 17.18 GENDER AND NUMBER. All terms and words used in this Lease,
-----------------
regardless of the number or gender in which they are used shall be deemed to
include any other number or gender as the context may require.
SECTION 17.19 NO PARTNERSHIP. Nothing contained in this Lease shall be
---------------
deemed or construed to create a partnership or joint venture of or between
Landlord and Tenant, or to create any other relationship between Landlord and
Tenant other than that of landlord and tenant.
SECTION 17.20 ATTORNEY-IN-FACT. If Tenant fails or refuses to execute and
----------------
deliver any instrument or certificate required to be delivered by Tenant
hereunder within the time periods required herein, then Tenant hereby appoints
Landlord as its attorney-in-fact with full power and authority to execute and
deliver such instrument or certificate for and in the name of Tenant, provided
Landlord first delivers written notice to Tenant of its intent to rely on this
Section 17.20, and Tenant is given a reasonable opportunity to object thereto.
SECTION 17.21 EFFECTIVENESS. The furnishing of the form of this Lease
-------------
shall not constitute an offer and this Lease shall become effective upon and
only upon its execution by and delivery to each party hereto.
SECTION 17.22 TIME OF THE ESSENCE. Time is of the essence as to Tenant's
-------------------
and Landlord's obligations contained in this Lease.
SECTION 17.23 FORCE MAJEURE. Neither party shall be required to perform
-------------
any of its obligations under this Lease, nor shall either party be liable for
loss or damage for failure to do so, where such failure arises from or through
acts of God, strikes, lockouts, labor difficulties, explosions, sabotage,
accidents, riots, civil commotions, acts of war, results of any warfare or
warlike conditions in this or any foreign country, fire or casualty, legal
requirements, requirements of any governmental body or agency, shortages or
unavailability of materials or labor, energy shortage or other causes beyond the
reasonable control of either party, unless such loss or damage results from
willful misconduct or gross negligence of the party. In the event that Landlord
shall not be able to perform its obligations under this Lease for the foregoing
recited reasons for a period of more than forty-five (45) days, then Tenant
shall have the option to terminate this Lease. Notwithstanding anything
contained herein to the contrary, a force majeure event will not relieve Tenant
of its continuing obligation to make scheduled rent payments.
SECTION 17.24 HEADINGS. Captions and headings are for convenience of
--------
reference only.
SECTION 17.25 EXHIBITS. The Exhibits attached to and referenced in the
--------
body of this Lease are incorporated into and expressly made part of this Lease.
SECTION 17.26 MEMORANDUM OF LEASE. Tenant shall not record a memorandum
-------------------
of
this Lease without Landlord's consent. In the event Landlord requests or
consents to recordation of a memorandum of this Lease, Tenant shall be obligated
to pay all costs, fees and taxes, if any, associated with such recordation.
SECTION 17.27 FURTHER ASSURANCES. Tenant will execute, acknowledge, and
------------------
deliver all such instruments and take all actions as Landlord from time to time
may require to document and maintain the tenancy created hereby including, but
not limited to, estoppel letters and subordination agreements.
SECTION 17.28 INCORPORATION OF PRIOR AGREEMENTS; AMENDMENTS. This Lease
---------------------------------------------
and the Exhibits and Lease Summary attached hereto contain all agreements of the
parties with respect to any matter mentioned herein. No prior agreement or
understanding pertaining to any such matter shall be effective. This Lease may
be modified in writing only, signed by the parties in interest at the time of
the modification. Except as otherwise stated in this Lease, Tenant hereby
acknowledges that neither the real estate broker(s) listed in Article XVII
hereof nor any cooperating broker on this transaction nor the Landlord or any
employees or agents of any of said persons has made any oral or written
warranties or representations to Tenant relative to the condition or use by
Tenant of said Premises, except as herein set forth. The taking of possession
of the Premises by Tenant shall be conclusive evidence that the Premises and the
Project are in good and satisfactory condition at such time, unless Tenant shall
notify Landlord otherwise within thirty (30) days of entry upon the Premises for
the purpose of constructing the Tenant Improvements.
SECTION 17.29 LIMITATION OF WARRANTIES. THERE ARE NO IMPLIED WARRANTIES
------------------------
OF MERCHANTABILITY OR FITNESS OR OF ANY OTHER KIND ARISING OUT OF THIS LEASE.
SECTION 17.30 OPTION TO RENEW. Tenant is hereby granted the option to
---------------
renew this Lease for two (2) full five-year terms. To exercise these Renewal
Options, Tenant shall notify the Landlord in writing of its intention 270 days
before the end of the initial term, or the first renewal term, as the case may
be. The rent payable by Tenant for the Premises during each renewal term shall
be the Fair Market Rental Rate for the Premises prevailing at the beginning of
the renewal term in question. Landlord and Tenant shall have sixty (60) days
following Landlord's receipt of Tenant's written notice of election to execute
an addendum to this Lease setting forth their mutual agreement on the base rent
payable by Tenant at the commencement of each five (5) year renewal term. If
Landlord and Tenant have both attempted, in good faith, to determine the base
rent for the Premises and are unable to agree prior to the end of the sixty (60)
day period, then, within five (5) days after the expiration of the sixty (60)
day period, Landlord and Tenant shall each select and notify the other of an
independent real estate broker who is licensed by the Commonwealth of Virginia
and has at least ten (10) continuous years of experience in leasing light
industrial projects in the Washington, D.C. metropolitan area. Within five (5)
days after the selection and notification of both brokers, the two brokers shall
jointly select a third independent broker who is licensed by the Commonwealth of
Virginia and has at least ten (10) continuous years of experience in leasing
light industrial projects in the Washington D.C. metropolitan area. Within
thirty (30) days after the selection
of the third broker, all three brokers shall meet Landlord and Tenant and shall,
through the agreement of no fewer than two of the brokers, determine what the
Fair Market Rental Rate of the premises for the applicable renewal term shall
be. The decision of the brokers shall be the base rent payable by Tenant for the
Premises during the applicable renewal term, and such base rent shall be
increased commencing on the first anniversary of the renewal term and on each
anniversary thereafter in an amount equal to 3% of the last preceding years base
rent, as previously adjusted. Tenant shall also pay other charges and additional
rent as set forth in Paragraphs 4.4 and 4.5 hereof. The brokers' fees shall be
divided equally between Landlord and Tenant. In determining such rental, the
brokers shall take into acount Landlord's and Tenant's agreement that the term
"Fair Market Rental Rate" for the Premises shall mean the annual rent that
Landlord could obtain from a non-equity, renewal, non-expansion tenant (a bona
fide tenant") desiring to lease the Premises for the applicable renewal term
without making or having made any additional improvements to the Premises,
taking into account the age of the Building and the Premises, the size, location
and floor levels of the Building and the Premises, the quality of construction
of the Building and the Premises, the services provided under the terms of this
Lease, the rent then being obtained from bona fide tenants for renewal leases of
space comparable to the Premises in the locality of the Premises (comparable
transactions in Landlord's own development(s) in that area shall receive no less
weight than other comparable transactions in other developments) and all other
factors that would be relevant in determining the rent such a bona fide tenant
would be willing to pay, and such a landlord would be willing to accept, for the
Premises.
SECTION 17.31 LEASE SECURITY. As security for Tenant's faithful
--------------
performance of all of the terms and conditions of this Lease, Tenant shall
deposit with Landlord an unconditional and irrevocable Letter of Credit in a
form acceptable to Landlord's counsel drawn upon a bank with a credit rating
acceptable to Landlord (minimum of A rating). Said Letter of Credit shall be in
the amount of $300,000.00, for lease years 1 through 3, which will be reduced to
the amount of $100,000.00 for lease years 4 and 5. Said Letter of Credit shall
be delivered on a date which coincides with that date on which rent payments
commence, but in all events prior to the date on which Tenant receives
reinforcement from Landlord for the Tenant Improvements.
SECTION 17.32 CONFIDENTIALITY. Except as required by the ordinary course
---------------
of business and/or financing or sale requirements of the parties or as otherwise
required by law, neither the Landlord nor the Tenant shall misappropriate,
disclose or make available to anyone for use outside of their respective
organizations at any time any of the terms and conditions of this lease.
WITNESS, the parties hereto have executed this Lease on the dates specified
immediately below their respective signatures.
LANDLORD:
XXXXXXXX METALS DEVELOPMENT
COMPANY
/s/ Xxxxxxxxx X. Xxxxxxx
By:_________________________________
Vice President
Title:______________________________
Witness:__________________________ Date:_______________________________
Witness:__________________________
TENANT:
EXODUS COMMUNICATIONS, INC.
/s/ Xxxxxxx X. Xxxxxx
By:__________________________________
COO/CFO
Title: ______________________________
Witness:_________________________ Date: _______________________________
Witness:_________________________
EXHIBIT A
PREMISES
[Description of Premises]
EXHIBIT B
PLANS FOR TENANT IMPROVEMENTS
[To Be Provided]
EXHIBIT C
SPECIAL LIST OF ITEMS OF TRADE FIXTURES, FURNISHINGS,
AND EQUIPMENT WHICH REMAIN PROPERTY OF
TENANT AT EXPIRATION OF LEASE TERM,
IN ADDITION TO THOSE ITEMS TENANT MAY REMOVE
PURSUANT TO SECTION 3.6.
