EXHIBIT 10.13
DATA CENTER SPACE LEASE
BETWEEN
TELEHOUSE INTERNATIONAL CORPORATION OF AMERICA
(LANDLORD)
AND
▇▇▇▇▇▇▇▇.▇▇▇
(TENANT)
SITE ▇/▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
Dated: August 24, 1998
TABLE OF CONTENTS
DATA CENTER SPACE LEASE
EXECUTION COPY
ARTICLE I - FUNDAMENTAL LEASE PROVISIONS
1.1 Fundamental Lease Provisions 1
1.2 Effect of Reference to a Fundamental Lease Provision 3
1.3 Definitions 3
1.4 Other Interpretive Provisions 5
ARTICLE II - PREMISES AND LEASE TERM
2.1 Premises; Rentable Area Calculation 5
2.1.1 Demise of Premises 5
2.1.2 Determination of Rentable Area of the Premises 5
2.1.3 Appurtenant Facilities 6
2.2 Lease Term; Commencement Date 6
2.3 Preparation of Premises 6
2.4 Failure to Deliver Possession 7
ARTICLE III - LIMITATIONS ON LANDLORD'S WORK.OWNERSHIP OF IMPROVEMENTS
3.1 Tenant Improvements 7
3.2 Ownership of Improvements 7
ARTICLE IV- RENTS
4.1 Rents 8
4.2 Payment of Rents 8
4.3 Payment of Base Rent 8
4.4 Rent for a Partial Month 8
4.5 [Intentionally Omitted.] 8
4.6 Interest 8
4.7 Payments Included in Rents 8
4.8 Government Rent Restrictions 8
4.9 Partial Pavment 9
ARTICLE V - TAX AND OPERATING EXPENSE ADJUSTMENTS
5.1 Tax and Operating Expense Definitions 9
5.1.1 Lease Year 9
5.1.2 [Intentionally omitted.] 9
5.1.3 Taxes 9
5.1.4 [Intentionally omitted.] 10
5.1.5 Building Operating Expenses 10
5.1.6 Building Operating Expenses- Exclusions 12
5.1.7 Building Operating Expenses Adjustment 13
5.2 Payment of Taxes and Building Operating Expenses 13
5.2.1 Payment of Tenant's Share of Taxes 13
5.2.1.1 Tax Payment and Tax Statement 13
5.2.1.2 Adjustments of Tax Payment 14
5.2.1.3 Miscellaneous Tax Matters 14
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5.2.2 Payment of Tenant's Share of Building Operating Expenses 15
5.2.2.1 Operating Expense Statement 15
5.2.2.2 Miscellaneous Building Operating Expense Matters 15
5.2.3 Tenant's Objection to Tax Statement or Operating Expense Statement 15
5.2.4 Arbitration 15
ARTICLE VI - SERVICES AND UTILITIES
6.1 Electricity 17
6.1.1 Direct Supply 17
6.1.2 Additional Electrical Equipment 17
6.1.3 Landlord's Consent to Electrical Alterations 18
6.1.4 [Intentionally Omitted] 18
6.1.5 Provision of Emergency Power 18
6.2 Water 19
6.2.1 Provision of Water 19
6.2.2 Failure of Water Supply 19
6.3 Elevators and Cleaning 19
6.4 Heating and Air Conditioning 19
6.4.1 Heating 19
6.4.2 Air Conditioning 20
6.4.3 Miscellaneous HVAC Provisions 20
6.4.4 Effect on HVAC of Changes in Premises 20
6.5 Service Interruption 20
6.6 Additional Tenant Use 21
6.7 Exculpation of Landlord for Utilities 21
6.8 Access 21
6.9 Communication Facilities 21
ARTICLE VII - INSURANCE
7.1 Property Insurance 22
7.2 Liability Insurance 22
7.3 Use of Premises 22
7.4 Waiver of Subrogation 22
7.4.1 Waiver Included in Policy 22
7.4.2 Landlord's Waiver 23
7.4.3 Tenants' Waiver 23
7.4.4 Limitation on Waiver 23
7.5 Policy Requirements 23
7.6 Premium Increase 24
ARTICLE VIII - ALTERATIONS
8.1 Conditions 25
8.1.1 Alterations by Tenant 25
8.1.2 Alterations by Landlord 25
8.2 Performance 25
8.3 Liens and Violations 26
8.3.1 Discharge of Liens and Violations 26
8.3.2 Tenant's Right to Contest Liens 27
8.4 Labor Conditions 27
8.5 Port Authority's Fee 27
8.6 Improvement Fee 27
EXECUTION COPY
ARTICLE IX - LANDLORD'S AND TENANT'S PROPERTY
9.1 Tenant's Property 28
9.2 Fixtures 28
9.3 [Intentionally omitted] 28
9.4 Abandonment 28
9.5 Taxes on Tenant's Property and Non-Standard Tenant Improvements 29
9.5.1 Taxes on Tenant's Property 29
9.5.2 [Intentionally omitted] 29
ARTICLE X - REPAiRS AND MAINTENANCE
10.1 Landlord's Obligations 29
10.2 Tenant's Obligations 29
10.3 Exculpation of Landlord for Repairs 30
10.4 Notice 30
ARTICLE XI - USE AND COMPLIANCE WITH LAW
11.1 Use 30
11.2 Licenses and Permits 30
11.3 Prohibited Uses 31
11.4 Compliance by Tenant 31
11.5 Service Contracts 32
11.6 Floor Load 32
11.7 Right of Repossession 32
11.8 Rules and Regulations 33
11.9 Labor Harmony 33
11.10 Landlord's and Port Authoritv's Consent 33
ARTICLE XII - RIGHTS OF LANDLORD
12.1 Conduits in Premises 33
12.2 Entry by Landlord 33
12.3 [Intentionally omitted] 34
12.4 Exhibiting the Premises 34
12.5 [Intentionally omitted] 34
12.6 Building Name and Address 34
12.7 [Intentionally omitted] 34
12.8 Security 34
12.9 Other Rights 34
ARTICLE XIII - DAMAGE OR DESTRUCTION
13.1 Restoration 34
13.2 Rent Abatement 35
13.3 [Intentionally omitted] 35
13.4 Election to Terminate 35
13.4.1 Landlord's Election to Terminate 35
13.4.2 Tenant's Election to Terminate 35
13.5 Business Interruption 35
13.6 Tenant's Property 36
13.7 Waiver 36
ARTICLE XIV - EMINENT DOMAiN
14.1 Complete Taking 36
14.2 Partial Taking 36
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14.3 Award 36
14.4 Temporary Taking 37
ARTICLE XV - SURRENDER OF PREMISES
15.1 Surrender 37
15.2 Acceptance of Surrender 37
15.3 No Merger 38
15.4 No Holding Over 38
ARTICLE XVI - EXCULPATION AND INDEMNIFICATION
16.1 Exculpation 38
16.2 Indemnity 38
16.3 Transfers of Landlord's Interest 40
16.4 Recourse Limited to Building 40
16.5 Responsibility for Infrastructure 41
ARTICLE XVII - SUBORDINATION AND ATTORNMENT
17.1 Subordination 41
17.2 Election to Subordinate 42
17.3 Notice and Cure of Landlord's Default 42
17.4 Attornment 42
17.5 Requirements of Superior Lessor or Mortgagee 43
17.6 Compliance With Ground Lease 43
17.6.1 Approval of Lease and Sublease By Port Authority 43
17.6.2 Compliance With Ground Lease 43
ARTICLE XVIII - QUIET ENJOYMENT
18.1 Quiet Enjoyment 44
ARTICLE XIX - ASSIGNMENTS AND SUBLEASES
1 9.1 [Intentionally omitted] 44
19.2 Prohibition 44
19.3 Corporate and Partnership Transactions 45
19.4 Notice to Landlord 45
19.5 [Intentionally omitted] 45
19.6 [Intentionally omitted] 45
19.7 [Intentionally omitted] 45
19.8 Consent by Landlord 45
19.9 Miscellaneous 45
19.9.1 General Terms 45
19.9.2 Tenant Remains Liable 45
19.9.3 Landlord's Consent Required 47
19.9.4 Identification of Landlord 47
19.9.5 General Sublease Provisions 47
19.9.6 Modification 47
19.10 [Intentionally omitted] 48
1 9.1 1 Additional Charges 48
19.12 Acceptance of Rent 48
19.13 Standards of Landlord's Consent 48
ARTICLE XX - ESTOPPEL CERTIFICATES
20.1 Estoppel Certificates 49
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ARTICLE XXI - [INTENTIONALLY OMITTEDl
ARTICLE XXII - BROKER
22.1 Broker 50
ARTICLE XXIII - CONDITIONAL LIMITATIONS
23.1 Conditional Limitations 50
23.1.1 [Intentionally omitted] 50
23.1.2 Failure to Pay Rent 50
23.1.3 [Intentionally omitted] 50
23.1.4 Failure to Perform Under This Lease 50
23.1.5 [Intentionally omitted] 51
23.1.6 Admission of Inability to Pay Debts 51
23.1.7 Voluntary Proceeding 51
23.1.8 General Assignment 51
23.1.9 Involuntary Proceeding 51
23.1.10 Appointment of Trustee 51
23.1.11 Tenant's Acquiescence 51
23.1.12 [Intentionally omitted] 51
23.1.13 Waste 51
23.1.14 Hypothecation or Assignment 51
23.1.15 Service of Notice 51
23.1.16 Rent Delays 52
23.1.17 Legal Process 52
23.2 Termination 52
23.3 Remedies and Damages 52
23.3.1 Surrender and Re-Entry 52
23.3.2 Tenant's Waiver of Notice and Redemption 53
23.3.3 Damages 53
23.3.4 Rents from Reletting 54
23.3.5 Monies Received 54
23.3.6 Equitabie Remedies 54
23.4 Waiver of Trial by Jury; Tenant Not to Counterclaim 54
23.5 No Holdover by Tenant 54
23.6 Landlord's Right to Cure Defaults 54
23.7 Effects of Waivers of Default; No Other Waiver 54
23.8 Election to Terminate 55
23.9 Remedies Not Exclusive 55
23.10 Payment of Landlord's Expenses 55
ARTICLE XXIV- MISCELLANEOUS
24.1 No Recording of Lease 55
24.2 Entire Agreement 55
24.3 Amendments 56
24.4 Successors 56
24.5 Force Majeure 56
24.6 Post-Termination Obligations 56
24.7 Construction on Adjacent Premises 56
24.8 No Representations by Landlord 57
24.9 Landlord's Consent 57
24.10 Interpretation 57
EXECUTION COPY
24.10.1 Governing Law 57
24.10.2 Invalidity 57
24.10.3 Captions 57
24.10.4 Presumptions 57
24.10.5 Independent Covenants 57
24.10.6 Numberand Gender 57
24.10.7 Exhibits 57
24.11 Joint and Several Liability 57
24.12 Submission of Lease 58
24.13 Notices From One Pany to the Other 58
24.14 Partnership Tenant 58
24.15 Pon Authority's Immunity 58
24.16 No Discrimination 58
ATTACHMENTS
EXHIBIT A Floor Plans A-1
EXHIBIT B Special Site Fitout B-1
EXHIBIT C TELEHOUSE Tenant Cleaning Specifications C-1
EXHIBIT D Rules and Regulations D-1
EXHIBIT E Excessive Electricity E-1
EXHIBIT F Appurtenant Facilities F-1
EXHIBIT Z Consent Agreement Z-1
EXECUTION COPY
THE TELEPORT
DATA CENTER SPACE LEASE
ARTICLE I
FUNDAMENTAL LEASE PROVISIONS
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SECTION 1 FUNDAMENTAL LEASE PROVISIONS
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DATE: August 12, 1998
LANDLORD: TELEHOUSE International Corporation Of America,
a Delaware corporation.
ADDRESS OF THE
LANDLORD: ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Finance Department
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
TENANT: ▇▇▇▇▇▇▇▇.▇▇▇
TENANT'S IDENTITY: Tenant is a corporation incorporated in the State of
Delaware
ADDRESS OF TENANT: ▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
email: ▇▇▇▇▇@▇▇▇▇.▇▇▇▇▇▇▇▇.▇▇▇
PREMISES: Space consisting of a portion of the third floor in the
Building, which space is more particularly indicated by
shading on the floor plan annexed hereto as Exhibit "A".
BUILDING: The data center and office building and underlying land
known as TELEHOUSE CENTER and located at ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
in the Teleport, in the Borough of ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇ and State of New York, and all rights
and interests appurtenant thereto.
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BASE RENT: $201,538.00 per annum
INITIAL TENANT'S
SHARE OF BUILDING
OPERATING EXPENSE: $14.50 per square foot of Rentable Area per annum
TENANTS SHARE: 3.57 percent
BASE PERIOD: The term of the lease commencing on September 1, 1998
through August 31, 2001.
LEASE TERM: The term of this Lease which shall include the Lease
Term and any extension or renewals thereof. A period
of 3 years (unless terminated earlier pursuant to any
of the provisions of this Lease or pursuant to law),
commencing as set forth in Section 2.2, plus a stub
period of a partial month as necessary in order for
the Lease Term to end on the last day of the month.
RECAPTURE
PERCENTAGE: The Recapture Percentage shall be one hundred percent
(100%) unless a different percentage is specified as
follows: fifty percent (50%).
FIXED COMMENCEMENT
DATE*: September 1, 1998
*Do Not Fill In This Date If An Outside Commencement Date Is Specified Below.
OUTSIDE COMMENCEMENT
DATE**: The Outside Commencement Date is________ days after
the date of this Lease.
**Do Not Fill In This Date If A Scheduled Commencement Date Is Specified Above.
RENT COMMENCEMENT
DATE: Payment of Base Rent and Additional Rent commences on
September 1, 1998.
RENTABLE AREA: 5,411.21 square feet. The useable area is 2,895
square feet.
TENANT'S BUSINESS: Communication related services.
TENANT'S BROKER: None
ADDRESS OF TENANT'S
BROKER:
1.2 Effect of Reference to a Fundamental Lease Provision. Each
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reference in this Lease to any of the Fundamental Lease Provisions contained in
Section 1.1 shall be
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construed to incorporate all of the terms provided under each such Fundamental
Lease Provision.
SECTION 1.3 DEFINITIONS. Whenever used in this Lease, the following terms
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shall have the indicated meanings:
Additional Rent: As defined in Section 4.1.
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Alterations: As defined in Section 8.1.
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Appurtenant Facilities: As defined in Exhibit E.
----------------------
Base Rent: As defined in Section 4.1.
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Building: As defined in Section 1.1
--------
Building Operating Expenses: As defined in Section 5.1.5.
---------------------------
Business Hours: As defined in Section 6.3.
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Conditional Limitation: As defined in Section 23.1.
----------------------
Commencement Date: As defined in Section 2.2.
-----------------
Critical Power: As defined in Section 6.1.5.
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Date of the Taking: As defined in Section 14.1.
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Deficiency: As defined in Section 23.3.3.
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Eminent Domain: As defined in Section 14.1.
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Essential Power: As defined in Section 6.1.5.
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Expiration Date: As defined in Section 2.2.
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Force Majeure: As defined in Section 24.5.
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Fundamental Lease Provisions: Those terms and provisions set forth in
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Section 1.1.
Ground Lease: That certain Agreement dated as of August 9, 1988 by and
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between the Port Authority as landlord and Landlord as tenant.
Improvements: As defined in Section 3.2.
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Improvement Fee: As defined in Section 8.5.
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Infrastructure: Roadways, walkways, landscaping, driveways and other areas
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located within the Teleport and used in common by tenants and subtenants of
the Teleport.
Base Rent: As defined in Section 1.1.
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Interest Rate: As defined in Section 4.6.
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Initial Tenant's Share of Building Operating Expenses: As defined in
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Section 1.1.
Labor Conditions: As defined in Section 8.4.
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Landlord: The party named as "Landlord" in Section 1.1 until a sale,
--------
transfer or lease by it and thereafter the Person or Persons who shall, at
any given time, be liable for the obligations of Landlord under the
provisions of this Lease, as more fully described in Section 16.3.
Laws: The terms "law", "laws", "provisions of law," and words of similar
----
import shall mean present and future laws, statutes, ordinances, building
and fire codes, rules, regulations, requirements, judgments, rulings,
decrees, executive, judicial and other orders and directives of any or all
of the federal, state, county and city governments and all agencies,
authorities, bureaus, commissions, courts, departments, subdivisions, or
offices thereof, and of any other governmental, public or quasi-public
authorities (including the board of fire underwriters or other insurance
body) having jurisdiction over the Building, and the direction of any
public officer pursuant to law, whether now or hereafter in force.
References to specific statutes include successor statutes of similar
purpose and import.
Lease Term: As defined in Section 1.1.
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Lease Year: As defined in Section 5.1.1.
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Memorandum of Lease Commencement: As defined in Section 2.2.
--------------------------------
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Mortgage: The term "mortgage" shall include a mortgage or a deed of trust,
--------
and the term "holder of a mortgage" or "mortgagee" or words of similar
import shall include a mortgagee of a mortgage or a beneficiary of a deed
of trust.
Operating Expense Payment: As defined in Section 5.2.2.
-------------------------
Operating Expense Statement: As defined in Section 5.2.2.
---------------------------
Partial Lease Year: As defined in Section 5.1.1.
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Partnership Tenant: As defined in Section 24.14.
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Permitted Use: Data processing and data, video and voice communications in
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connection with Tenant's Business, office space and incidental and usual
activities compatible therewith, and for no other purpose whatsoever.
Person: A natural person, firm, association, corporation, partnership,
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joint venture, trust or other entity, as the case may be.
Port Authority: The Port Authority of New York and New Jersey, a body
--------------
corporate and politic created by compact between the States of New York and
New Jersey with the consent of the Congress of the United States of
America.
Premises: As defined in Section 1.1.
--------
Recapture Percentage: As defined in Section 1.1.
--------------------
Rents: As defined in Section 4.1.
-----
Rent Commencement Date: As defined in Section 1.1.
----------------------
Rentable Area: As defined in Section 1.1.
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Repossession Date: As defined in Section 11.7.
-----------------
Rules and Regulations: As defined in Section 11.8.
---------------------
Substantially Complete or Substantial Completion: As defined in Section
------------------------------------------------
2.3.2.
Substantial Completion Date: The date on which the Premises are
----------------------------
Substantially Complete as defined in Section 2.3.2.
Successor Landlord: As defined in Section 17.4.
------------------
Superior Interest Holder: As defined in Section 17.1.
------------------------
Superior Lease: As defined in Section 17.1.
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Superior Lessor: As defined in Section 17.1.
---------------
Superior Mortgage: As defined in Section 17.1.
-----------------
Superior Mortgagee: As defined in Section 17.1.
------------------
Taxes: As defined in Section 5.1.3.
-----
Tax Payment: As defined in Section 5.2.1.1.
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Tax Statement: As defined in Section 5.2.1.1.
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Telehouse Complex: The Building together with any other data centers and
-----------------
office buildings owned or operated by Landlord and the underlying land
located adjacent to the Building in the Teleport.
Teleport: The telecommunications facility and related office park
--------
developed by the Port Authority within a portion of the Staten Island
Industrial Park in the Borough of ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇
and State of New York, of which the Telehouse Complex is a part.
Tenant Improvements: As defined in the Work Letter.
-------------------
Tenant's Broker: As defined in Section 1.1.
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Tenant's Business: As defined in Section 1.1.
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Tenant Expenses: As defined in Section 19.11.
---------------
Tenant's Property: As defined in Section 9.2.
-----------------
Tenant's Share: As defined in Section 1.1.
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Tenant's Work: As defined in the Work Letter.
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UPS System: As defined in Section 6.1.6.
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Useable Area: The floor area of space in the Building in which Tenant
------------
Improvements have been or will be constructed.
Work Letter: Exhibit B attached hereto.
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SECTION 1.4 OTHER INTERPRETIVE PROVISIONS. References to "Articles" and
------------------------------
"Sections" shall be to Articles and Sections respectively, of this Lease
unless otherwise specifically provided. Any of the terms defined in Sections
1.1 and 1.3 may, unless the content otherwise requires, be used in the
singular or the plural depending on the reference. References to agreements
and other contractual instruments shall be deemed to include all subsequent
amendments and other modifications thereto, but only to the extent such
amendments and other modifications are not prohibited by the terms of this
Lease. The term "including" shall mean "including, but not limited to",
except where the context requires otherwise. Where either Landlord or Tenant
is obligated to perform some duty, such obligation shall be at the sole cost
and expense of the party so obligated, unless otherwise provided herein.
Whenever it is provided in this Lease that a party's consent or approval shall
not unreasonably be withheld, such consent or approval shall also not
unreasonably be conditioned or delayed.
ARTICLE II
PREMISES AND LEASE TERM
SECTION 2.1 PREMISES; RENTABLE AREA CALCULATION.
------------------------------------
2.1.1 DEMISE OF PREMISES. Landlord hereby leases to Tenant and Tenant
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hereby hires from Landlord the Premises, pursuant to the provisions of this
Lease, together with the nonexclusive right, together with all other lessees
and occupants of the Building, to use common areas of the Building (including
the Appurtenant Facilities pursuant to Section 2.1.3 hereof) and the
Infrastructure, subject to the provisions of this Lease and Landlord's Rules
and Regulations (annexed hereto as Exhibit D) and the rules and regulations of
the Port Authority (Ground Lease, Exhibit R).
2.1.2 DETERMINATION OF RENTABLE AREA OF THE PREMISES. If the Rentable
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Area of the Premises is reduced in size pursuant to Section 11.7 or as a
result of a partial taking in Eminent Domain, all amounts, sums and/or
percentages based upon the Rentable Area of the Premises (including amounts,
sums and/or percentages based upon the useable area of the Premises),
including without limitation, amounts, sums and/or percentages set forth in
Sections 1.1 and 4.5 and in any Rider hereto, shall be adjusted by multiplying
said amounts, sums and/or percentages by a fraction, the numerator of which
shall be the number of square feet of Rentable Area (or useable area depending
on the manner in which the percentage is calculated) contained in the
Premises, as so determined, and the denominator of which shall be the number
of square feet of Rentable Area set forth in Section 1.1 (or in the number of
square feet of useable area contained in the Premises on the date of this
Lease). Landlord and Tenant shall execute an addendum in a form reasonably
acceptable to both landlord and Tenant documentary any such change in Rentable
Area. The failure of either party to execute such addendum shall not affect
the validity or enforceability of this Lease. The number of square feet of
Rentable Area contained in the Premises, as set forth in this Lease, shall for
all purposes of this Lease conclusively be
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deemed to be the Rentable Area of the Premises as of the date of this Lease,
and Landlord and Tenant shall be responsible for performance of all
obligations based upon or calculated from the Rentable Area of the Premises,
as so determined, notwithstanding any subsequent remeasurement of the Premises
as they exist on the date of this Lease.
2.1.3 APPURTENANT FACILITIES. In addition to the Premises, Tenant shall
----------------------
have the right in common with all other lessees and occupants of the Building
to use the Appurtenant Facilities located in the Building as described in
Exhibit F annexed hereto, subject to payment by Tenant as Additional Rent of
Landlord's standard charge for such use.
SECTION 2.2 Lease Term; Commencement Date. The "Lease Term" (a) shall
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commence on the date (the "Commencement Date") that is (x) the earlier to
occur of: (i) the Fixed Commencement Date, if any such date is specified in
Section 1.1, or (ii) the date on which Tenant, or anyone claiming under or
through Tenant, first occupies the Premises, with Landlord's consent and with
the Port Authority's certification of occupancy, for the conduct of Tenant's
Business, provided, however, that the installation and /or testing of
equipment installed by or on behalf of Tenant within the Premises shall not
constitute the conduct of Tenant's business for purposes of this Article, but
(a) in no case prior to the date on which the Port Authority consents to this
Lease pursuant to Section 17.6.1 if Landlord and Tenant elect, as set forth in
Section 17.6.1, to condition commencement on such consent; and (b) shall end
at noon on the last day of the Lease Term (the "Expiration Date") unless
sooner terminated as hereinafter provided or pursuant to applicable law.
After the Commencement Date, upon Tenant's or Landlord's request, Landlord
and Tenant shall execute a Memorandum of Lease Commencement (the "Memorandum
of Lease Commencement") which shall specify the calendar dates of the
Commencement Date and the Expiration Date of the Lease Term. The failure by
Landlord or Tenant to execute a Memorandum of Lease Commencement when
requested by the other party shall not affect the occurrence of the
Commencement Date or Expiration Date.
SECTION 2.3 PREPARATION OF PREMISES. Landlord has provided the site with
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Landlord's standard site buildout including:
. raised floor, drop ceiling, site paining
. lighting, carpeting of support area
. critical power, essential power and non-essential power feeder installation
. demising walls and interior glass partitions, water protection measures
. halon and pre-action sprinkler fire protection installation and testing
. computer room and support office air conditioning, support office heating
. connection to centralized building monitoring and security system
. site preparation coordination
. governmental approvals and scheduling
. 75 Kva Computer Power Center
In addition, Landlord has performed certain other site fitout work according
to the requirements of the Special Site Fitout Work annexed hereto as
Exhibit "B".
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SECTION 2.4 FAILURE TO DELIVER POSSESSION. Except to the extent specifically
------------------------------
provided for in this Article and 17.6.1, Tenant waives any right to rescind
this Lease under Section 223-a of the New York Real Property Law and further
waives the right to recover any damages that may
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result from Landlord's failure to deliver possession of the Premises on the
Commencement Date. If Landlord shall be unable to give possession of the
Premises on the Commencement Date, and provided Tenant is not solely
responsible for such inability to give possession, Tenant's obligation to pay
Base Rent and Tenant's Share of Taxes and Building Operating Expenses,
including Initial Tenant's Share of Building Operating Expenses, and all other
additional rent shall not commence until possession of the Premises is given
or the Premises are available for occupancy by Tenant, and no such failure to
give possession on such date shall in any way affect the validity of this
Lease or the obligations of Tenant hereunder or give rise to any claim for
damages by Tenant or claim for rescission of this Lease, nor shall the same be
construed to extend the Lease Term. The Rent Commencement Date, if any is
specified in Section 1.1, shall be adjourned by the number of days between the
Commencement Date and the date on which possession is delivered to Tenant. If
permission is given to Tenant to enter into possession of the Premises or to
occupy space in the Building other than the Premises prior to the Commencement
Date, such occupancy shall be deemed to be under all the provisions of this
Lease provided, however, the Tenant shall not be obligated to pay base rent or
any other rents until the Commencement Date. Notwithstanding anything to the
contrary contained herein, Tenant shall have the right to cancel and terminate
this Lease by notice to Landlord if possession of the Premises is not
delivered to Tenant in accordance with the terms, covenants and conditions of
this Lease on or before the date which is forty-five (45) days from the date
upon which triplicate originals of this Lease executed by Tenant are delivered
to Landlord.
ARTICLE III
LIMITATIONS ON LANDLORD'S WORK; OWNERSHIP OF IMPROVEMENTS
SECTION 3.1 Tenant Improvements. Landlord has completed preparation of the
--------------------
Premises in accordance with the provisions of Article III of this Lease and
Exhibit "B", Special Site Fitout, and Landlord shall not be further obligated
to prepare, alter or improve the Premises.
SECTION 3.2 OWNERSHIP OF IMPROVEMENTS. All installations, alterations,
--------------------------
additions, substitutions, replacements, betterments or improvements, including
Tenant Improvements ("Improvements") upon the Premises, made by either party,
including pipes, ducts, conduits, wiring, panelling, non-mobile partitions and
railings, shall become the property of Landlord and shall remain upon and be
surrendered with the Premises as a part thereof; provided, however, that
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Landlord may elect to have Tenant remove any Improvements, such election to be
exercised at the time of consent for such Improvements is given by Landlord.
Notwithstanding the foregoing, improvements (i) which are standard and
customary installations for data processing and communications occupancy may
be left in place by Tenant at the expiration or sooner termination of the term
of this Lease, (ii) movable office furniture and equipment and mobile
partitions, which have been heretofore installed or which are hereafter
installed by Tenant at its expense, shall at all times remain Tenant's
Property and may be removed at any time, subject to the provisions of Section
9.2 and (iii) which have been completed as of the above date of this lease in
accordance with provisions of Section 3.1 and Exhibit "B" need not be removed
by Tenant because Landlord did not elect to require such removal at the time
Landlord consented to the improvements.
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ARTICLE IV
RENTS
SECTION 4.1 Rents. Commencing on the Rent Commencement Date and thereafter
------
during the Lease Term, Tenant shall pay to Landlord the following rents for
the Premises (collectively, the "Rents"): (a) a base rent per annum (the
"Base Rent") in an amount equal to the Base Rent and (b) additional charges
("Additional Rent") consisting of all other sums of money payable by Tenant
under the provisions of this Lease.
SECTION 4.2 PAYMENT OF RENTS. Tenant shall pay the Rents when due, without
-----------------
notice or demand, and without any abatement, deduction or setoff, except for
abatements expressly provided for elsewhere in this Lease. Tenant shall pay
the Rents to Landlord, or as Landlord may otherwise designate, in lawful money
of the United States, at the Address of Landlord or at such other place as
Landlord may designate.
SECTION 4.3 PAYMENT OF BASE RENT. Tenant shall pay the annual Base Rent in
---------------------
equal monthly installments in advance on the first day of each calendar month
included in the Lease Term, except that no Base Rent shall be payable for the
portion of the Lease Term occurring prior to the Rent Commencement Date
specified in Section 1.1 and as may be extended pursuant to Section 2.4. The
first installment of Base Rent shall be paid on the Rent Commencement Date.
SECTION 4.4 RENT FOR A PARTIAL MONTH. The Base Rent for any portion of a
-------------------------
calendar month included in the month in which the Rent Commencement Date
occurs or at the at the end of the Lease Term, shall be prorated in the ratio
that the number of days in such portion bears to the number of days in such
month. Tenant shall receive a credit against the monthly installment of Base
Rent next coming due for any overpayment made in the first installment of Base
Rent.
SECTION 4.5 [INTENTIONALLY OMITTED]
----------------------
SECTION 4.6 INTEREST. Interest shall accrue on any payment due hereunder at
--------
a rate (the "Interest Rate") equal to the lesser of (i) two (2) percentage
points above the then current prime rate or reference rate charged by
Citibank, N.A. or its successor, from time to time or (ii) the maximum rate of
interest chargeable under applicable law. Interest shall accrue on any such
payment from and after the tenth (10th) day following the due date thereof.
SECTION 4.7 PAYMENTS INCLUDED IN RENTS. All payments to be made hereunder by
---------------------------
Tenant to Landlord, including Base Rent, shall be included in the term "Rents"
whenever used in this Lease. All such payments, other than Base Rent, shall
be deemed to be Additional Rent hereunder, whether or not designated as such
and, unless another time shall be herein expressly provided for the payment
thereof, shall be due and payable within thirty (30) days after demand and
Landlord shall have the same remedies for failure to pay the Additional Rent
as for non-payment of Base Rent.
SECTION 4.8 Government Rent Restrictions. If the amount of the Rents payable
-----------------------------
under this Lease exceeds that allowed by the terms of any valid government
restriction which limits the amount of rent or other charges that a commercial
lessor may charge or collect, the amount of
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Rents payable under this Lease shall be the maximum permitted by such
government restriction for the period of time during which such restriction
remains in effect. However, all increases in Rents provided for in this Lease
shall, to the extent permitted by law, be calculated upon the amount of the
Rents that would have been payable in the absence of the government
restriction, and, effective as of the expiration of the government
restriction, the Rents payable hereunder shall be increased to the amount that
would have prevailed had the government restriction never been in effect.
Moreover, to the fullest extent permitted by law, on the first due date for an
installment of Base Rent following expiration of the government restriction,
Tenant shall pay to Landlord, as Additional Rent, an amount equal to the
difference between the amount of Rents which Tenant would have paid if the
government restriction had not been in force and the amount of Rents actually
paid by Tenant during the period in which the government restriction remained
in effect.
SECTION 4.9 PARTIAL PAYMENT. If Tenant pays a lesser amount than the correct
----------------
amount of Rents due, such payment shall be deemed to be a payment on account.
No endorsement or statement on any check or any letter accompanying any check
or payment may be deemed to be an accord and satisfaction, but Landlord may
accept such check or payment without prejudice to Landlord's right to recover
the balance, treat such partial payment as a default or pursue any other
available remedy.
ARTICLE V
TAX AND OPERATING EXPENSE ADJUSTMENTS
SECTION 5.1 Tax and Operating Expense Definitions.
--------------------------------------
5.1.1 "Lease Year" means a period of twelve (12) consecutive full
------------
calendar months, the first full Lease Year to commence on the July 1
immediately following the Commencement Date (or on the Commencement Date if
the Commencement Date is July 1), with each succeeding Lease Year commencing
on the anniversary date of such first Lease Year. Any portion of the Lease
Term which is less than a full Lease Year, that is, from the Commencement Date
(if other than July 1) through the following June 30 and from the last July 1
falling within the Lease Term to the end of the Lease Term (if the Lease Term
does not end on June 30), shall be deemed a "Partial Lease Year". Any
reference in this Lease to a Lease Year shall, unless the context clearly
indicates otherwise, be deemed to be a reference to a Partial Lease Year if
the period in question involves a Partial Lease Year.
5.1.2 [INTENTIONALLY OMITTED.]
5.1.3 Taxes includes the aggregate amount of all real estate taxes,
-----
general or specific assessments and other governmental impositions, duties,
charges and levies of every kind, character and nature whatsoever,
extraordinary as well as ordinary, foreseen and unforeseen (including payments
in lieu of taxes imposed on Landlord because the Teleport is owned by a public
authority), and each and every installment thereof, which shall during the
Lease Term, be levied, assessed, imposed, become due and payable, or liens
upon, or arise in connection with the use, occupancy or possession of, the
Telehouse Complex, the Building or the Premises
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(including any expenses incurred by Landlord (including attorneys' reasonable
fees and disbursements, payments to appraisers and fees to experts and other
witnesses) in contesting any of the foregoing or contesting the assessed
valuation of the Telehouse Complex), and shall include (i) assessments made
with respect to any "air" and "development" rights affecting the Telehouse
Complex, and (ii) any fee, tax or charge imposed by any governmental authority
for any vaults, vault space or other properties within the boundaries of the
land underlying the Telehouse Complex, but excluding, however, all penalties
and interest thereon and also excluding any water charges, sewer rental,
utility taxes and any other costs included in the term "Building Operating
Expenses". Nothing in the preceding sentence shall be construed to include as
Taxes any inheritance, estate, succession, transfer, gift, gain, franchise,
corporation, income or profit tax or capital levy that is imposed upon
Landlord. However, if at any time during the Lease Term the methods of
taxation prevailing on the date hereof shall be altered so that in lieu of or
as a substitute for the whole or any part of the Taxes now levied, assessed or
imposed on real estate or upon Landlord with respect to the Telehouse Complex,
the Building, or the Premises, there shall be levied, assessed or imposed any
other tax, fee, charge, imposition or assessment, however denominated
including, (a) a tax on the rents received from such real estate, or (b) a
license fee measured by the rents receivable by Landlord from the Telehouse
Complex or the Building or the Premises, or (c) a tax or license fee imposed
upon Landlord which is otherwise measured by or based in whole or in part upon
the Telehouse Complex, the Building or the Premises, or (d) a payment in lieu
of taxes, then the same, computed as if the amount of such tax or fee so
payable were that due if the Telehouse Complex, the Building or the Premises
were the only property of Landlord subject thereto, shall be included in
Taxes. Provided, that the Taxes imposed on the Telehouse Complex shall
--------
be equitably allocated among all of the buildings (including the Building)
within the Telehouse Complex.
5.1.4 [Intentionally Omitted.]
5.1.5 BUILDING OPERATING EXPENSES means the aggregate of all costs,
---------------------------
expenses and disbursements of every kind and nature paid or incurred by or on
behalf of Landlord or its agent or any contractor employed by Landlord with
respect to the operation, repair, cleaning, maintenance, management and
security of the Building and the Telehouse Complex, provided that Building
Operating Expenses incurred in connection with the operation, repair,
cleaning, maintenance, management and security of the Telehouse Complex shall
be allocated among all of the buildings (including the Building) located
within the Telehouse Complex on an equitable basis as determined by Landlord
in its reasonable discretion according to generally acceptable accounting
principles. Without in any way limiting the generality of the foregoing,
Building Operating Expenses shall include the following:
(i) salaries, wages, bonuses, fringe benefits and the cost of any pension
or retirement plan or of any life or disability or other benefits with respect
to the employees of Landlord engaged in the operation, repair, cleaning,
maintenance, management and security of the Building at or below the grade of
director of operations; provided, that if any such employees of Landlord
--------
provide services for more than one building of Landlord, then a prorated
portion of their wages,benefits and taxes shall be included in Building
Operating Expenses, based on the portion of their working time devoted to the
Building;
(ii) social security, unemployment and other payroll taxes;
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(iii) electricity for use in common areas; gas, steam or other fuel;
operation of elevators and security systems; heating, cooling, air
conditioning and ventilating in common areas; hot and cold water, sewer and
other utilities; utility taxes, water rates and charges and sewer rental;
(iv) cleaning (including windows), painting, trash removal, security and
other services and replacement of tubes, bulbs, lamps and ballasts required
for building standard lighting;
(v) the cost of all appropriate insurance, required to be carried by
Tenant under the Lease, including Workers Compensation, property, casualty,
rental or business interruption, liability and fidelity insurance and
insurance consultants;
(vi) repairs and maintenance of the Telehouse Complex and the Building
and its systems, not including capital expenditures;
(vii) landscaping;
(viii) building and cleaning goods and supplies;
(ix) the cost of, or rental charges (including interest charges paid by
Landlord) for, machinery, equipment, tools, maintenance facilities or systems
used in the operation, repair, cleaning, maintenance,management and security
of the Building, and any sales and other taxes thereon;
(x) uniforms and dry cleaning;
(xi) management fees, or if no management fee is being charged, an amount
not in excess of the amount which would be paid for managing a similar data
center;
(xii) service agreements on equipment and service contracts and charges
of independent contractors;
(xiii) telephone, telegraph, fax (or other telecommunication) costs
incurred by Landlord in the management and operation of the Building and
stationery;
(xiv) legal, accounting and professional fees and disbursements (other
than with respect to Landlord's leasing of space in the Building);
(xv) costs of capital improvements and replacements which are made after
completion of the Building or Telehouse Complex which are intended to reduce
Operating Costs, and actually do so by an amount greater than the cost
thereof, or which are required by law, amortized over the shortest useful life
permitted by the Internal Revenue Code of 1986 for such improvements and
replacements, including interest charges paid by Landlord or, in the absence
of actual interest, imputed interest at the Interest Rate;
(xvi) licenses, permits and inspections;
(xvii) depreciation on personal property, tools and moveable equipment
used in the operation repair,cleaning, maintenance, management or security of
the Building or the Telehouse
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Complex or provided by Landlord for the use or benefit of lessees or
occupants, including window coverings and carpeting in public corridors;
(xviii) costs of contesting the validity or applicability of any law if a
successful contest would reduce Building Operating Expenses;
(xix) those taxes, duties, charges, levies and assessments which are
expensed as a part of the Building's or the Telehouse Complex's operation,
repair, cleaning, maintenance, management and security, but which are not
included within Taxes (as defined below), such as sales, use and utility
taxes;
(xx) all expenses and costs incurred by Landlord (other than for capital
improvements, which are covered by clause (xv) of this Section) as a result of
or in order to comply with applicable laws, including laws pertaining to
energy or natural resource conservation or environmental protection (such as
the costs of securing alternative sources of utilities, energy or other
products or services and the costs of making the Building, the Premises or the
Telehouse Complex compatible with the use of such alternative sources);
(xxi) all charges, taxes, surcharges, assessments or penalties imposed
by any government agency or public utility as a means of conserving or
controlling the consumption of water, gas, electricity, energy sources or
other natural resources;
(xxii) all charges imposed by the Port Authority with respect to the
operation, repair, cleaning, maintenance, management and security of the
Teleport or the Infrastructure for which Landlord is obligated to pay under
the Ground Lease;
(xxiii) rent (excluding annual basic ground rent, basic operating
expense rental and additional operating expense rental) payable to the Port
Authority under the Ground Lease; and
(xxiv) any and all other costs and expenses of any kind or nature paid
in connection with the operation, repair, cleaning, maintenance, management
and security of the Building, or the Premises.
5.1.6 BUILDING OPERATING EXPENSES-EXCLUSIONS. The term Building
--------------------------------------
Operating Expenses excludes:
(i) expenses relating to leasing space in the Building and the Telehouse
Complex (including tenant improvements, leasing commissions and advertising
expenses);
(ii) legal charges incurred for collection of accounts, or negotiation of
leases, or relating to disputes between Landlord and other lessees and
occupants of the Building or the Telehouse Complex;
(iii) the cost of electricity and other utilities and services furnished
directly to the Premises or to space leased to other lessees and occupants to
the extent that such lessees and occupants pay for such utilities and services
directly or reimburse Landlord for such costs other than as provided in this
Article V;
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(iv) the cost of repairs or replacements incurred by reason of fire or
other casualty or Eminent Domain to the extent to which Landlord has actually
received compensation therefor through proceeds of insurance, or would have
received proceeds if Landlord carried required insurance or condemnation
awards;
(v) taxes;
(vi) depreciation (other than on personal property, tools and moveable
equipment as described in Clause (xvii) of Section 5.1.5 above), and interest
and principal on mortgages encumbering the Building, the TELEHOUSE Complex,
or Landlord's interest under the Ground Lease;
(vii) telephone, telegraph, fax or other telecommunication costs incurred
by lessees and occupants of the Telehouse Complex or the Building;
(viii) costs and expenses otherwise includable in Building Operating
Expenses, to the extent that Landlord is reimbursed from other sources for
such costs and expenses;
(ix) salaries, wages, bonuses, fringe benefits and the cost of any
pension or retirement plan or of any life or disability or other benefits with
respect to the employees of Landlord above the grade of director of
operations;
(x) annual basic ground rent payable to the Port Authority under the
Ground Lease and payments under any mortgage encumbering the Building and/or
the estate created by the Ground Lease; and
(xi) costs of performing work or furnishing services for tenants other
than this Tenant at the Landlord's expense.
It is the intention of the parties that Tenant shall not be required to make
duplicate payments of any Building Operating Expense item, if such payment was
made in relation to the item pursuant to any other provision of this Lease;
nor shall Tenant be required to pay any item as an Building Operating Expense
to the extent Landlord is reimbursed for such item, whether by another tenant,
through insurance proceeds or otherwise.
5.1.7 BUILDING OPERATING EXPENSES ADJUSTMENT. If during all or part of
---------------------------------------
any Lease Year the Rentable Area of the Building is not fully occupied by
tenants, the Building Operating Expenses for such Lease Year shall be adjusted
to reflect the Building Operating Expenses which would have been payable had
the Building been fully occupied throughout such Lease Year.
SECTION 5.2 PAYMENT OF TAXES AND BUILDING OPERATING EXPENSES. Landlord shall
-------------------------------------------------
pay all Taxes and Building Operating Expenses and Tenant shall reimburse
Landlord for Tenant's Share thereof, in accordance with this Section 5.2.
5.2.1 PAYMENT OF TENANT'S SHARE OF TAXES.
-----------------------------------
5.2.1.1 TAX PAYMENT AND TAX STATEMENT. Tenant shall pay to Landlord as
------------------------------
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Additional Rent, an amount equal to Tenant's Share of Taxes for any Lease Year
or Partial Lease Year in the manner set forth in this Section 5.2.1. At any
time during or after a Lease Year, Landlord may render to Tenant a statement
(the "Tax Statement") showing (a) the Taxes for the Lease Year and (b)
Tenant's Share of any such Taxes (the "Tax Payment"). Tenant shall pay to
Landlord, in (2) equal installments, in advance, on June 1 and December 1 of
each year, the Tax Payment shown on the Tax Statement. If the taxing authority
changes the number or amount of installments of Taxes or the dates on which
Taxes are required to be paid, then the amounts or the due dates of the
installments of the Tax Payment shall be correspondingly revised so that the
Tax Payment (or the installments thereof) will be due not more than thirty
(30) days prior to the date the corresponding payment is due to such
authority. If any additional Taxes are imposed during any Lease Year or if
any Tax Statement contains an error, Landlord may at any time deliver revised
Tax Statements to Tenant, and the provisions of this Section 5.2.1.1 regarding
the timing of the Tax Payment shall apply to such revised Tax Statements.
Landlord's failure to render a Tax Statement during any Lease Year or failure
to make a demand under this Section 5.2.1 shall not prejudice Landlord's right
to render a Tax Statement with respect to such Lease Year during any
subsequent Lease Year or with respect to any subsequent Lease Year, and shall
not affect Tenant's obligation to pay the Tax Payment for such Lease Year or
act as a waiver of any kind. Whenever so requested, but not more than once a
year, Landlord shall furnish Tenant with a reproduced copy of the tax ▇▇▇▇ for
the Taxes for the current or next succeeding Lease Year, if theretofore issued
by the taxing authority.
5.2.1.2 ADJUSTMENTS OF TAX PAYMENT. The Tax Payment shall be prorated
--------------------------
for any Partial Lease Year in which the Lease Term shall commence or end. If
a Tax Statement is furnished to Tenant after the commencement of the Lease
Year in respect of which such Tax Statement is rendered, Tenant shall, within
thirty (30) days after receipt, pay to Landlord the amount shown thereon. If,
after Tenant shall have made a Tax Payment and regardless of whether this
Lease shall have terminated, Landlord shall receive a refund of any portion of
the Taxes on which such payment shall have been based, Landlord shall have the
option either to pay to Tenant Tenant's Share of the net refund after
deduction of all expenses (including, but not limited to, attorneys' and
appraisers' fees and disbursements and witnesses' fees) incurred by Landlord
in connection with obtaining the refund or to credit such sum against
subsequent Tax Payments; provided, however, that Tenant's Share of such refund
-------- -------
shall be limited to the amount, if any, which Tenant had theretofore paid to
Landlord in respect of Taxes for such Lease Year.
5.2.1.3 MISCELLANEOUS TAX MATTERS. Tenant shall receive Tenant's Share
--------------------------
of any discount that Landlord may receive by virtue of any early payment of
Taxes or on account of any exemption or abatement of Taxes, and Taxes shall be
calculated by taking such discounts into account. Subject to the second
sentence of Section 5.1.7, Taxes shall be computed initially on the assessed
valuation in effect at the time the Tax Statement is issued to Tenant,
regardless of any then pending proceeding for reduction of such assessed
valuation. Only Landlord shall be eligible to institute tax reduction or
other proceedings to reduce the assessed valuation of the Telehouse Complex or
the Building or contest any item comprising Taxes. Notwithstanding the
foregoing, Tenant shall have the right to participate in, at Tenant's sole
cost and expense, or maintain, at Tenant's sole cost and expense, appropriate
proceedings to seek reduction of any Tax imposed on Tenant's property under
the provisions of the New York State Tax Law imposing a tax on
telecommunications equipment or other Tenant's property. Tenant's liability
for any Tax Payment due under this Section 5.2.1 shall survive the expiration
or earlier termination of this Lease, and shall be payable within thirty (30)
days after demand therefor following such expiration
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or termination. In no event shall any adjustment of any Tax Payment hereunder
result in a decrease in Base Rent.
5.2.2 PAYMENT OF TENANT'S SHARE OF BUILDING OPERATING EXPENSES.
---------------------------------------------------------
5.2.2.1 OPERATING EXPENSE STATEMENT. Tenant shall pay to Landlord as
----------------------------
Additional Rent an amount equal to Tenant's Share of Building Operating
Expenses for any Lease Year or Partial Lease Year in the manner set forth in
this Section 5.2.2. Promptly after the commencement of each Lease Year,
Landlord shall submit to Tenant a statement (the "Operating Expense
Statement") setting forth Landlord's estimate of Building Operating Expenses
for such Lease Year and indicating Tenant's Share of the estimated Building
Operating Expenses. For the first Lease Year, Tenant's Share of estimated
Building Operating Expenses is set forth in Section 1.1 as the Initial
Tenant's Share of Building Operating Expenses (the "Operating Expense
Payment"). Landlord's failure to render an Operating Expense Statement during
any Lease Year or failure to make a demand under this Section 5.2.2 shall not
prejudice Landlord's right to render an Operating Expense Statement with
respect to such Lease Year during any subsequent Lease Year or with respect to
any subsequent Lease Year, and shall not affect Tenant's obligation to pay
Tenant's Share of such Building Operating Expenses for such Lease Year or act
as a waiver of any kind. Within thirty (30) days of receipt of an Operating
Expense Statement, Tenant shall pay to Landlord a sum equal to one-twelfth
(1/12th) of such estimated Building Operating Expenses multiplied by the
number of months (including any partial months) to and including the then
current month which have elapsed since the commencement of such Lease Year,
less the aggregate of any payments made on account of Building Operating
Expenses made since the commencement of such Lease Year pursuant to this
Section 5.2.2; and, thereafter, commencing with the first day of the month
following the furnishing to Tenant of an Operating Expense Statement and
continuing monthly on the first day of every month thereafter until rendition
of the next succeeding Operating Expense Statement, Tenant shall pay an amount
equal to one-twelfth (1/12th) of Tenant's Share of such estimated Building
Operating Expenses.
5.2.2.2 MISCELLANEOUS BUILDING OPERATING EXPENSE MATTERS. Tenant's
-------------------------------------------------
liability for Tenant's Share of Building Operating Expenses due under this
Section 5.2.2 shall survive the expiration or earlier termination of this
Lease, and shall be payable within thirty (30) days after demand therefore
following such expiration or termination. In no event shall the Base Rent
ever be reduced by the operation of any provision of this Section 5.2.2.
5.2.3 TENANT'S OBJECTION TO TAX STATEMENT OR OPERATING EXPENSE
--------------------------------------------------------
STATEMENT. Any Tax Statement or Operating Expense Statement shall be
----------
conclusively binding upon Tenant unless (a) Tenant shall send Landlord a
notice within one hundred and eighty (180) days of receipt thereof stating
that Tenant objects to Landlord's determination therein of (i) the Tax Payment
or (ii) the Operating Expense Payment, and specifying the reasons for such
objection and further stating that Tenant desires to make the examination
permitted by this Section 5.2.3, and (b) within sixty (60) days after the
examination in clause (a) above, Tenant shall give Landlord a notice that it
still disputes Landlord's determination of such Tax Payment or Operating
Expense Payment, as the case may be, specifying with reference to the
particular books and records of Landlord, the particular respects in which
such Tax Statement or Operating Expense Statement is claimed to be inaccurate
and that it requests that such dispute be determined by arbitration pursuant
to Section 5.2.4. of this Lease.
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From and after the date of Tenant's notice under clause (a) above until
the expiration of the time period within which Tenant may send its notice
under clause (b) above, Landlord shall afford Tenant or its representatives
the right on as many occasions as shall be reasonably necessary to examine
(and make extracts from and copies of Landlord's books, records and all other
data relating to the operation, repair, cleaning, maintenance, management and
security of the Building. Each time Tenant desires to make any such
examination, it shall give reasonable advance notice to Landlord of the date
on which it will conduct such examination. Tenant shall conduct such
examination at the business office of Landlord during the normal business
hours of such office. Tenant shall maintain all information obtained in the
course of such examination in strict confidence.
No dispute by Tenant shall excuse or ▇▇▇▇▇ Tenant's obligation to make
the payments required by this Section 5.2 pending resolution of Tenant's
objection. Any dispute by Tenant shall be determined by arbitration pursuant
to Section 5.2.4.
If the Tax Payment for such Tax Year or the Operating Expense Payment for
such Lease Year, as determined by such arbitration (or settlement), is more or
less than the amount thereof indicated in the Tax Statement or the Operating
Expense Statement, as the case may be, Tenant shall pay to Landlord any
difference in Landlord's favor, and Tenant shall receive a credit against the
next installments of Additional Rent in respect of Taxes or Operating
Expenses, as the case may be (or, following the expiration of the Term, a
refund), for any difference in Tenant's favor; provided, that if any Rents are
-------- ----
due and owing to Landlord under this Lease, Landlord may apply such credit
against any such Rents due and owing.
5.2.4 Arbitration. Any dispute under Section 5.2.3 shall be determined
-----------
by arbitration conducted in New York, New York in accordance with the rules of
the American Arbitration Association (or its successor) by a panel of three
(3) arbitrators. Each arbitrator shall be an independent certified public
accountant who is an employee or member of an accounting firm national in
scope. Tenant shall designate an arbitrator meeting the foregoing
requirements in its written notice requesting arbitration made pursuant to
Section 5.2.3. Landlord shall, by written notice to Tenant, designate a
second arbitrator meeting the foregoing requirements within thirty (30) days
after receipt of Tenant's notice. Within thirty (30) days after Landlord's
notice to Tenant, the two arbitrators so designated shall select the third
arbitrator, and if they do not do so, the third arbitrator shall be selected
by the American Arbitration Association. Landlord and Tenant shall execute
all documents and do all other things necessary to submit the dispute to
arbitration pursuant to this Section 5.2.4. A judgment or order may be
entered in any court of competent jurisdiction based upon an arbitration award
made in an arbitration pursuant to this Section 5.2.4. The costs and expenses
of arbitrations shall be shared equally between Landlord and Tenant, but each
party shall be responsible for its own costs and expenses and the fees and
expenses of its own witnesses and counsel and the arbitrator designated by it.
The arbitrators shall have the right to consult experts in the matter under
arbitration; provided, that such consultations shall be made only after ten
-------- ----
(10) days' prior notice to Landlord and Tenant and only in their presence,
with full right on their part to cross-examine such experts. The
arbitrators' decision and award shall be in writing and counterpart copies
thereof shall be delivered to Landlord and Tenant. In rendering their
decision and award, the arbitrators shall have no power to vary, modify or
amend any provision of this Lease.
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ARTICLE VI
SERVICES AND UTILITIES
----------------------
SECTION 6.1 ELECTRICITY.
------------
6.1.1 DIRECT SUPPLY. Electrical power shall be furnished directly to
--------------
the Premises by the Port Authority for so long as the Port Authority provides
electrical power to the Building, and Tenant shall obtain electrical power
directly from the Port Authority. The costs of such service (which shall be
at least one hundred fifteen percent (115%) of the cost to the Port Authority
of the same quantity of electrical power) shall be paid by Tenant directly to
the Port Authority on such terms and conditions as the Port Authority may
establish. Notwithstanding the foregoing, if Tenant's consumption of
electrical power exceeds the standard of forty (40) Volt-Amps per square foot
of Useable Area, Tenant shall pay as Additional Rent an amount calculated
according to the Excessive Electricity Schedule annexed hereto as Exhibit "F".
-----------
6.1.2 ADDITIONAL ELECTRICAL EQUIPMENT. If Tenant from time to time
--------------------------------
shall require additional electrical power for use in the Premises in excess of
the quantity being previously supplied to the Premises, Tenant may obtain such
additional electrical power from the Port Authority so long as Tenant's use of
electrical power will not exceed the capacity of existing feeders to the
Building or the risers, conduits, transformers, cables, switches, meters,
switchboards or wiring installations and Tenant's use of electrical power will
not, in Landlord's reasonable judgment, overload such installations or
interfere with the use thereof by other lessees and occupants of the Building.
If, in Landlord's reasonable judgment, such excess requirements cannot be
furnished unless additional risers, conduits, feeders, transformers, cables,
switches, meters, switchboards or installations are installed in the Premises
or the Building, Landlord, upon written request of Tenant, will, to the extent
that such excess requirements can in Landlord's reasonable opinion be
practically and safely met without undue interference with the use and
occupancy of other lessees and occupants, proceed with reasonable diligence to
install such additional risers, conduits, feeders, transformers, cables,
switches, meters, switchboards or installations provided the same and the use
thereof (i) shall be permitted by the Port Authority, (ii) shall not cause
permanent damage to the Building or the Premises or create a dangerous
condition or entail unreasonable Alterations or unreasonably interfere with,
or disturb other lessees or occupants of the Building or increase the premiums
for any insurance on the Building, and (iii) shall comply with applicable
laws; but no risers, conduits, feeders, transformers, cables, switches,
meters, switchboards or installations may be installed without Tenant's first
submitting plans and obtaining the prior written consent of Landlord (which
shall not be unreasonably withheld) and the Port Authority. Tenant shall pay
all costs and expenses incurred by Landlord in connection with such
installation of additional risers, etc., within thirty (30) days after receipt
of an invoice and documentation substantiating all charges. All meters and
all panel boards, feeders, risers, wiring, transformers, switches,
switchboards and other conductors or equipment required for the Premises to
receive electrical power directly from the Port Authority and/or public
utility shall be installed by Landlord at Tenant's expense, the amount of
which shall be equal to the direct, out-of-pocket costs and expenses actually
incurred by Landlord, plus the Landlord's Improvement Fee as described in
Section 8.6. Notwithstanding the above, Landlord agrees that the installation
of a second CPC/PDU, as necessary to accommodate up to 105 cabinets will be
acceptable.
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6.1.3 LANDLORD'S CONSENT TO ELECTRICAL ALTERATIONS. In order that
--------------------------------------------
Landlord may at all times have all necessary information that it requires to
maintain and protect its equipment, Tenant agrees that Tenant will not make
any alteration of or addition to, the electrical equipment or wiring in the
Premises without the prior written consent in each instance of Landlord (which
shall not be unreasonably withheld) and, if required, of the Port Authority.
6.1.4 [INTENTIONALLY OMITTED]
-----------------------
6.1.5 PROVISION OF EMERGENCY POWER. Except as provided in this Section
----------------------------
6.1.5, Landlord shall not be liable in any way to Tenant for any failure,
inadequacy or defect in the supply or character of electrical power furnished
to the Premises caused by any applicable law or any act or omission of the
Port Authority or for any other reason not attributable to the gross
negligence or willful misconduct of Landlord. However, in the event of an
interruption in the electrical power furnished by the Port Authority, Landlord
shall furnish emergency electrical power to the Premises as follows:
(i) Landlord shall provide to the Premises an emergency power system
consisting of (a) four diesel generators located in the Building equipped with
a 48-hour capacity fuel tank, and (b) an uninterruptable power source ("UPS
----
System") with batteries which operate to provide electrical power from the
-------
time of the interruption in the Port Authority's service until the generators
are operating, but not exceeding fifteen (15) minutes.
(ii) Landlord shall operate the emergency power system to provide two
categories of electrical power to the Premises. The first category, referred
to as "Essential Power", is electrical power in quantity at least equal to
one-half (1/2) of the quantity of electrical power normally consumed by Tenant
during the time of year in which the interruption occurs in Tenant's operation
of its lighting and air-conditioning equipment for office space. The second
category, referred to as "Critical Power", is electrical power in quantity at
least equal to the quantity of electrical power normally consumed by Tenant
during the time of year in which the interruption occurs in Tenant's operation
of its computers in the Premises.
Provided, that Landlord shall use its best efforts to furnish both Essential
--------
Power and Critical Power to the Premises at all times during any interruption
of the Port Authority's service, but Landlord shall not be liable to Tenant
for any loss, liability, damage or expense which Tenant may sustain or incur
if (i) all or part of the emergency power system fails to operate or (ii) the
electrical power supplied to the Premises by Landlord's emergency power system
is interrupted due to an event of Force Majeure or otherwise or (iii) the
quantity or character of electrical power supplied by Landlord's emergency
power system changes or is no longer available or suitable for Tenant's
requirements, except for actual damage suffered by Tenant and resulting from
Landlord's willful misconduct or gross negligence, and then only after actual
notice thereof to Landlord and Landlord's failure to cure within a reasonable
time. Notwithstanding anything to the contrary contained in this Section
6.1.5, in no event shall Landlord be liable to Tenant or any third Person for
consequential damages. Provided, further, that Landlord will maintain in good
working order and condition all equipment and conductors required to furnish
the Premises with normal and emergency electrical power; will not interrupt or
diminish electrical power supplied to the Premises unless required due to an
emergency, and will use its best efforts to notify Tenant not less than five
(5) business days in advance of an anticipated or planned interruption or
diminution of power
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furnished to the Premises. In the event that the supply of electrical power to
the Premises is interrupted by any cause except Tenant's acts or omissions,
and such interruption results in the shut down of Tenant's computer and/or
communications equipment in the Premises and prevents Tenant from engaging in
its business for a period in excess of one hour in any calendar day, then the
Base Rent and Tenant's Share of Building Operating Expenses shall be abated
for such calendar day.
SECTION 6.2 WATER.
-----
6.2.1 PROVISION OF WATER. Landlord shall provide hot and cold water for
------------------
ordinary lavatory and drinking purposes only in the common areas.
Additionally, Landlord shall provide chilled water to the Premises as
necessary for the cooling of the computer and/or communications equipment
therein and for conditioning air for office space cooling.
6.2.2 FAILURE OF WATER SUPPLY. Except as provided in this Section
-----------------------
6.2.2, Landlord shall not be liable to Tenant for any loss, liability, damage
or expense which Tenant may sustain or incur by reason of any failure,
inadequacy or defect in the supply or character of water furnished to the
Premises or the common areas except for actual damage suffered by Tenant by
reason of any such failure, inadequacy or defect caused by the gross
negligence or willful misconduct of Landlord, and then only after actual
notice thereof to Landlord and Landlord's failure to cure within a reasonable
time, and in no event shall Landlord be liable to Tenant or any third Person
for consequential damages. In the event that the supply of chilled water for
cooling the computer and/or communications equipment in the Premises is
interrupted by any cause except Tenant's acts or omissions, and such
interruption results in the shut down of Tenant's computer and/or
communications equipment in the Premises and prevents Tenant from engaging in
its business for a period in excess of one hour in any calendar day, then the
Base Rent and Tenant's Share of Building Operating Expenses shall be abated
for such calendar day.
SECTION 6.3 ELEVATORS AND CLEANING. Landlord shall (i) provide necessary
----------------------
passenger elevator service on a 24-hour basis each day and shall provide
freight elevator service and loading dock service on business days from 8:00
o'clock a.m. to 6:00 o'clock p.m. and on Saturdays from 8:00 o'clock a.m. to
1:00 o'clock p.m. (collectively, "Business Hours") and (ii) provide office and
window cleaning services, and remove Tenant's ordinary office refuse and
rubbish, all pursuant to the Cleaning Specifications provided in Exhibit "C"
-----------
annexed hereto. Landlord shall not be required to provide janitorial services
for portions of the Premises used for computer operations or for storage. The
terms "Business Days" and "Saturdays" as used in this Section 6.3 and in
Section 6.4 shall not include Sundays or Federal or New York State legal
holidays. Landlord shall have the right to make reasonable changes in the
operation of the elevators or the loading dock in the Building and shall have
the right to discontinue, temporarily or permanently, the use of any one or
more cars in any of the banks of elevators provided reasonable elevator
service is furnished to the Premises as above provided.
SECTION 6.4 HEATING AND AIR CONDITIONING.
----------------------------
6.4.1 HEATING. Landlord shall, through the heating equipment of the
-------
Building, furnish the common areas of the Building with heat sufficient in
Landlord's reasonable judgment for comfortable occupancy of the common areas
between October 1st and May 14th. Tenant shall be responsible for providing
heating to the Premises.
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6.4.2 AIR CONDITIONING. Landlord shall, through the air conditioning
----------------
equipment of the Building, furnish the common areas of the Building with air
conditioning sufficient in Landlord's reasonable judgment for comfortable
occupancy of the common areas between May 15th and September 30th. Tenant
shall be responsible for providing air conditioning to the Premises.
6.4.3 MISCELLANEOUS HVAC PROVISIONS. Any heating, ventilating or air
-----------------------------
conditioning equipment required by Tenant for the proper operation of Tenant's
computer or for the comfortable occupancy by Tenant of the Premises and any
utilities required for the operation of such equipment shall be furnished,
installed, maintained and obtained by Tenant, at Tenant's sole cost, in
accordance with the applicable provisions of this Lease and Exhibit "B".
Landlord shall not be required to provide any heat, ventilating or air
conditioning to the Premises other than conditioned fresh air as required by
applicable law. Landlord and Tenant shall at all times cooperate fully with
each other, and Tenant shall abide by all the Rules and Regulations which
Landlord may reasonably prescribe or which the Port Authority may prescribe
for the proper functioning of the Building's heating, ventilating and air
conditioning system. Landlord upon reasonable notice (except in emergency)
shall have free and unrestricted access to any and all heating, ventilating
and air conditioning facilities in the Premises.
6.4.4 EFFECT ON HVAC OF CHANGES IN PREMISES. Tenant understands that
-------------------------------------
(i) any occupancy of the Premises, in whole or in part, for any purpose other
than the Permitted Use or (ii) any rearrangement of partitioning which
interferes with normal operation of the Building's heating, ventilating and
air conditioning system, may require changes or alterations in said system or
in the ducts through which the system operates, and Tenant accordingly agrees
that any changes or alterations so occasioned shall be made only with the
prior written consent of Landlord which Landlord will not unreasonably
withhold (and the consent of the Port Authority), and shall be done by Tenant
at Tenant's expense, and otherwise subject to the provisions of Article VIII,
to the extent applicable.
SECTION 6.5 SERVICE INTERRUPTION. Landlord reserves the right to interrupt,
--------------------
curtail, stop or suspend service or operation of the heating, air
conditioning, elevator, plumbing, mechanical and electrical systems when
Landlord is required to do so because Landlord has been mandated by law to
adhere to a recognized energy, water or other resource conservation program
promulgated by any governmental or quasi-governmental agency, bureau, board,
commission, department, office or other division thereof. Landlord may take
such action as it deems appropriate to comply with any such program, including
making Alterations to the Building or Premises, provided such actions do not
adversely affect Tenant's use and occupancy of Premises. Landlord agrees,
however, that it will use its best efforts to minimize interference with
Tenant's use of the Premises in effecting such and that Landlord diligently
will prosecute same to completion. Landlord agrees that it will not apply the
restrictions of such program to Tenant on a discriminatory basis. Subject to
the provisions of Section 6.1.5, Landlord reserves the right without liability
to Tenant to interrupt, curtail, stop or suspend service or operation of the
heating, air conditioning, elevator, plumbing, mechanical and electrical
systems, when necessary by reason of accident, or emergency, or for repairs or
Alterations desirable or necessary in the reasonable judgment of Landlord to
be made, until said repairs or Alterations shall have been completed.
Landlord agrees, however, that it will use its best efforts to minimize
interference with Tenant's use of the Premises in effecting such and that
Landlord diligently will prosecute same to completion.
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SECTION 6.6 ADDITIONAL TENANT USE. At the Commencement Date, and from time
---------------------
to time thereafter, Landlord may impose a reasonable charge at no profit, as
Additional Rent, and establish reasonable Rules and Regulations for: (a) the
use by Tenant of the heating, air conditioning, or ventilation systems serving
the common areas, or of the loading dock or freight elevator at any time other
than during Business Hours; or (b) the use by Tenant of chilled water in
amounts exceeding the amounts Landlord has undertaken to provide in Section
6.2.1 of this Article VI. All requests for additional services must be
submitted in writing to the Building's superintendent (or such other person
designated by Landlord), by a person authorized by Tenant to make such
requests, before 3:00 o'clock p.m. on weekdays for weekday service and before
3:00 o'clock p.m. the day preceding holidays and weekends for holiday or
weekend service. In the event of emergency, after-hours service may be
obtained by calling the Building's superintendent (or such other person
designated by Landlord) in sufficient time to enable him to provide the
service requested, and Tenant shall follow up with a written confirmation.
Landlord may also impose a reasonable charge, as Additional Rent, for the use
of any additional or unusual cleaning services required because of any non-
building standard improvements in the Premises or for the removal of any
refuse and rubbish from the Premises, other than discarded material placed in
wastepaper baskets and left for emptying as an incident to Landlord's normal
cleaning of the Premises. Landlord may charge Tenant an additional charge for
cleaning if Tenant has glass partitions or an unusual amount of glass surfaces
in the interior of the Premises. Any charges imposed under the provisions of
this Section shall not exceed charges imposed for the provision of such
services in similar, first-class data centers.
SECTION 6.7 EXCULPATION OF LANDLORD FOR UTILITIES.
-------------------------------------
Except as provided in Section 6.1.5 and Section 6.2.2, Landlord shall not be
liable for any failure to furnish any services or utilities when such failure
is caused by events of Force Majeure, accidents, breakage, necessary repairs,
including any governmental energy, water or other resource conservation
program and including any interruption in service by the Port Authority, and
Tenant shall not be entitled to any damages nor shall such failure ▇▇▇▇▇ or
suspend Tenant's obligation to pay the Rents or constitute or be construed as
a constructive or other eviction of Tenant.
SECTION 6.8 ACCESS. Tenant agrees to allow Landlord, its cleaning contractor
------
and their employees, to have access to the Premises after 5:30 o'clock p.m.
and before 8:00 o'clock a.m. and to have the right to use, without charge
therefor, all light and electrical power in the Premises reasonably required
to clean the Premises.
SECTION 6.9 COMMUNICATION FACILITIES. During the Lease Term, until Landlord
------------------------
gives Tenant written notice to the contrary, Teleport Communications Group, a
partnership, shall, under the terms of the Ground Lease, be the exclusive
provider of communications services and facilities at the Teleport, including,
without limitation, all antennas, conduit, and cabling and including any such
items located in, on, or around any buildings and structures at the Teleport,
and Tenant shall not, and shall not permit any other Person to, install,
contract for, or use, or cause to be installed, contracted for, or used, any
such items, services, or facilities at the Teleport not provided by Teleport
Communications Group without the prior written approval of Teleport
Communications Group, which may be withheld or subject to such conditions as
Teleport Communications Group in its sole discretion may determine, provided,
--------
however, that Teleport Communications Group may consent to internal building
-------
wiring and internal terminal equipment
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furnished by Tenant, but only if Teleport Communications Group is reasonably
satisfied after testing and inspection that such wiring and equipment is
technologically compatible with its telecommunications equipment and
configurations at the Teleport. Notwithstanding the above, Tenant will have
access to fiber based services of both the Teleport Communications Group and
▇▇▇▇ Atlantic.
ARTICLE VII
INSURANCE
---------
SECTION 7.1 PROPERTY INSURANCE. During the Lease Term, Landlord shall
------------------
maintain All Risk property insurance, covering the Building and insuring the
Building in the amount of its full replacement value, with loss of rents
coverage. The amount of any deductible shall be determined by Landlord but
shall not exceed that which is commercially reasonable for a first-class data
center.
SECTION 7.2 LIABILITY INSURANCE. During the Lease Term, Landlord shall
-------------------
maintain public liability insurance covering the Building and insuring against
all hazards and risks customarily insured against by Persons operating data
communications buildings. During the Lease Term, Tenant shall maintain
comprehensive general liability insurance, written on an occurrence basis with
blanket contractual liability coverage, broad form property damage and such
other coverage as Landlord may reasonably require, with respect to the
Premises, their use and occupancy by Tenant and the conduct or operation of
business therein, with combined single-limit coverage of not less than Five
Million Dollars ($5,000,000). Landlord may, from time to time, but not more
frequently than once every three (3) years, increase the policy amount to be
maintained by Tenant under this Section 7.2 as Landlord reasonably deems
necessary in order to maintain adequate liability coverage, provided, that the
policy amount does not exceed the policy amount required for other tenants
within the Building.
SECTION 7.3 USE OF PREMISES. Tenant shall not do, or permit anything to be
---------------
done, in or about the Premises which might, solely by reason of the particular
nature of Tenant's use of the Premises: (a) increase any insurance rate with
respect to the Building over the rate which would otherwise then be in effect,
or (b) result in insurance companies of good standing refusing to insure the
Building in amounts satisfactory to Landlord, or (c) result in the
cancellation of any policy covering or relating to the Building.
SECTION 7.4 WAIVER OF SUBROGATION.
---------------------
7.4.1 WAIVER INCLUDED IN POLICY. Landlord and Tenant shall each secure
-------------------------
an appropriate clause in, or an endorsement upon, each property insurance
policy required by this Article VII, pursuant to which the insurance company
waives subrogation or permits the insured, prior to any loss, to agree with a
third party to waive any claim it might have against said third party without
invalidating the coverage under the insurance policy. On Tenant's policies,
the waiver of subrogation or permission for waiver of any claim shall extend
to Landlord and its agents and employees and against other lessees in the
Building, provided, that such other lessees agree to a waiver of their
--------
respective rights of subrogation against Tenant. On Landlord's policies, the
waiver
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of subrogation or permission for waiver of any claim shall extend to Tenant
and its agents and employees. If such waiver be unobtainable, the parties
shall include in their property insurance policies (i) an express agreement
that such policy shall not be invalidated if the insured waives or has waived
before the casualty the right of recovery against any party responsible for a
covered casualty or (ii) any other form of permission for the release of such
responsible party. If such waiver, agreement or permission shall not be, or
shall cease to be, obtainable without additional charge or at all, the insured
party shall so notify the other party promptly after notice thereof. If the
other party shall agree in writing to pay the insurer's additional charge
therefor, such waiver, agreement or permission shall (if obtainable) be
included in the policy. In the event either party's insurer shall refuse to
permit such waiver, agreement or permission even with an additional charge,
then the other party shall have the right to designate another insurer with a
Best's Insurance Guide rating of A-XI or better who would be prepared to
permit such waiver, and the first party shall use such other insurer.
7.4.2 LANDLORD'S WAIVER. As long as Landlord's casualty insurance
-----------------
policies include the waiver of subrogation or agreement or permission to
release liability referred to in Section 7.4.1, Landlord hereby waives, for
itself and those claiming through or under it, any right of recovery against
Tenant, any other permitted occupant of the Premises, and of their partners,
employees, agents or contractors, for any loss occasioned by fire or other
insured casualty, whether or not arising from the negligence of Tenant or its
employees, agents or contractors. If at any time any of Landlord's property
insurance policies shall not include such or similar provisions, the waiver
set forth in the foregoing sentence shall, upon notice given by Landlord to
Tenant, be of no further force or effect (or, if the insurer shall not grant
such waiver for all of the required parties, such waiver shall be of no force
or effect only with respect to the required parties not included in such
waiver). To the extent that Landlord is at any time a self-insurer with
respect to loss, damage or destruction by fire or other casualty, Landlord
agrees to waive any claim or right of recovery which Landlord might have
against Tenant for any loss occasioned by fire or other casualty, whether or
not arising from Tenant's negligence.
7.4.3 TENANTS' WAIVER. As long as Tenant's property insurance policies
---------------
include the waiver of subrogation or agreement or permission to release
liability referred to in Section 7.4.1 and provided that Landlord provides the
waiver referred to in Section 7.4.2, Tenant hereby waives (and agrees to use
reasonable efforts to cause all other occupants of the Premises to execute and
deliver to Landlord instruments waiving), for itself and those claiming
through or under it, any right of recovery against Landlord, the other
additional insureds and any of their partners, employees, agents or
contractors, and against other lessees of the Telehouse Complex to the extent
that the policies of such other lessees permit a similar waiver for the
benefit of Tenant and such other lessee actually gives such a waiver, for any
loss occasioned by fire or other insured peril, whether or not arising from
the negligence of Landlord or its employees, agents or contractors. If at any
time any of Tenant's property insurance policies shall not include such or
similar provisions, the waiver set forth in the foregoing sentence shall, upon
notice given by Tenant to Landlord, be of no further force or effect (or, if
the insurer shall not grant such waiver for all of the required parties, such
waiver shall be of no force or effect only with respect to the required
parties not included in such waiver). To the extent that Tenant is at any
time a self-insurer with respect to loss, damage or destruction by fire or
other peril, Tenant agrees to waive any claim or right of recovery which
Tenant might have against Landlord for any loss occasioned by fire or other
peril, whether or not arising from Landlord's negligence provided that
Landlord provides the waiver referred to in Section 7.4.2.
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7.4.4 LIMITATION ON WAIVER. Except to the extent expressly provided in
--------------------
this Section 7.4, nothing contained in this Lease shall relieve either party
of any liability to the other or to its insurance carriers which such party
may have under law or the terms of this Lease in connection with any damage to
the Building by fire or other peril.
SECTION 7.5 POLICY REQUIREMENTS. Landlord and its agents and employees, the
-------------------
City of New York, the New York City Public Development Corporation, the Port
Authority and any other Superior Lessor or any Superior Mortgagee whose name
and address shall have been furnished to Tenant shall be designated as
additional insureds on any insurance policy required by this Article VII.
Tenant shall deliver to Landlord certificates of insurance for the insurance
coverage required by this Article VII, in form reasonably satisfactory to
Landlord, issued by the insurance company or its authorized agent, within
thirty (30) days of the Commencement Date. Tenant shall procure and pay for
renewals of such insurance from time to time before the expiration thereof,
and Tenant shall deliver to Landlord such renewal certificate(s). At
Landlord's request, Tenant shall deliver certificates of insurance to
additional insured parties. All policies shall be issued by companies of
recognized responsibility, reasonably acceptable to Landlord, and licensed to
do business in the State of New York. All policies shall provide that they
cannot be cancelled or modified unless Landlord, the Port Authority and any
other Superior Lessor or any Superior Mortgagee named as an additional insured
are given at least thirty (30) days' prior written notice of such cancellation
or modification. All insurance policies involving liability shall contain a
provision that in any action or proceeding under or in connection with such
policy, the insurance carrier shall not without obtaining express advance
consent from the General Counsel of the Port Authority raise any defense
involving in any way the immunity of the Port Authority, its Commissioners,
officers, agents or employees, the governmental nature of the Port Authority,
the provisions of any statutes respecting suits against the Port Authority, or
the jurisdiction of the tribunal over the person of the Port Authority.
Tenant shall not carry separate or additional insurance, concurrent in form or
contributing in the event of any loss or damage with any insurance required to
be obtained by Tenant under this Lease. Tenant may carry any insurance
coverage required of it hereunder pursuant to blanket policies of insurance so
long as the coverage afforded Landlord and the other additional insureds
thereunder shall not be less than the coverage which would be provided by
direct policies.
SECTION 7.6 PREMIUM INCREASE. If, by reason of any default by Tenant under
----------------
this Lease after notice and beyond any applicable grace period, or by reason
of any Tenant's Work installed in the Premises except for any work performed
by Landlord pursuant to the terms hereof, including without limitation, the
work referred to in Section 2.3 of this Lease, the premiums on Landlord's
insurance on the Building (including without limitation rent insurance) are
higher than they otherwise would be, Tenant shall correct such default, and
Tenant shall reimburse Landlord, within thirty (30) days after demand, as
Additional Rent, for that part of the premiums attributable to the default by
Tenant or the Tenant's Work. If, due to the particular manner of Tenant's use
of the Premises, any such insurance shall be cancelled by the insurance
carrier, then Tenant shall cease such use or occupancy and shall indemnify,
defend and hold Landlord harmless against any loss which would have been
covered by such insurance. A schedule or statement of rates for the Building,
issued by the insurance companies insuring the Building, or by a fire
insurance rating organization or other similar body making rates for insurance
for the Building, shall be conclusive evidence of the facts therein stated and
of the several items and charges in the insurance rate then applicable to the
Building.
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ARTICLE VIII
ALTERATIONS
-----------
SECTION 8.1 CONDITIONS.
----------
SECTION 8.1.1 ALTERATIONS BY TENANT. With Landlord's prior approval, which
---------------------
will not be unreasonably withheld, and the prior approval of the Port
Authority, if such approval is required pursuant to the Ground Lease, Tenant
may from time to time, at its expense, make such alterations, improvements,
additions and replacements (including installation of fixtures, cables, wires)
and decorations (collectively, "Alterations") in and to the Premises as Tenant
may desire, provided that: (a) the Alterations do not affect the outside
--------
appearance of the Building and are not visible from the outside of the
Building; (b) the Alterations are non-structural and do not impair the
strength or structural integrity of the Building; (c) the Alterations are to
the interior of the Premises and do not affect any part of the Building
outside of the Premises; (d) the Alterations do not adversely affect the
proper functioning of the mechanical, electrical, sanitary and other service
systems of the Building, or unreasonably increase the usage of such systems by
Tenant; (e) before proceeding with any Alteration (other than decorations),
Tenant shall submit to Landlord, for Landlord's reasonable approval, plans and
specifications for the work to be done, and Tenant shall not proceed with such
work until it obtains Landlord's approval, which shall not be unreasonably
withheld; (f) Tenant shall pay to Landlord upon demand the reasonable direct,
out-of-pocket costs and expenses actually incurred by Landlord in reviewing
Tenant's plans and specifications and inspecting the Alterations to determine
whether they are being performed in accordance with the approved plans and
specifications and in compliance with law, including the fees of any architect
or engineer employed by Landlord for such purpose; and (g) Tenant shall comply
with the rules and regulations of Landlord and the Port Authority (including
applicable provisions of the Ground Lease) then in force with respect to the
making of Alterations. Tenant hereby agrees that the review and approval by
Landlord of Tenant's plans and specifications for Alterations are solely for
Landlord's benefit. Landlord shall have no duty toward Tenant, nor shall
Landlord be deemed to have made any representation or warranty to Tenant with
respect to the safety, adequacy, correctness, efficiency or compliance with
law of the plans and specifications, the Alterations or their design, or any
other matter regarding the Alterations. Landlord shall, at no cost or expense
to Landlord, cooperate reasonably with Tenant and its contractors and
subcontractors in obtaining all permits, approvals, certificates and bonds
required under this Article VIII.
SECTION 8.1.2 ALTERATIONS BY LANDLORD. Landlord reserves the right, at any
-----------------------
time, to make such Alterations, in or to the Building, the Telehouse Complex
and the respective systems and equipment of each, as well as in or to street
entrances, doors, halls, passages, elevators, escalators and stairways, and
other public parts of the Building, as Landlord shall deem necessary or
desirable. However, Landlord shall not exercise its rights under this Section
8.1.2 in a manner that would materially interfere with Tenant's use or access
to the Premises, reduce Tenant's usable square footage, materially alter the
configuration of the Premises, or in any manner effect the Tenant's ability to
continue their permitted use of the Premises.
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SECTION 8.2 PERFORMANCE. Landlord or Tenant shall obtain all necessary
-----------
governmental permits and certificates for the construction of the Alterations
which either of them undertakes and for the use and occupancy of the
Alterations upon completion. Tenant shall retain a reputable contractor,
selected from Landlord's list of acceptable contractors and independently
approved by Landlord (which approval shall not be unreasonably withheld) and
by the Port Authority for specific Alterations, to perform the Alterations in
compliance with the permits and certificates and applicable law. Alterations
shall be diligently performed in a good and workmanlike manner, using new
materials and equipment at least equal in quality and class to the better of:
(a) the original installations of the Building, or (b) the prevailing building
standards established by Landlord. Any Alterations by Tenant in the
mechanical, electrical, sanitary, heating, ventilating, air-conditioning or
other systems of the Building shall be performed only by contractors
designated by Landlord. Alterations shall be performed in a manner that
causes the least interference with the use of the Building by lessees and
occupants and in a manner that does not interfere unreasonably with, delay or,
in the case of Tenant's Alterations, impose additional expense on Landlord in
the maintenance, repair or operation of the Building; and if any additional
expense is incurred by Landlord as a result of any Alterations by Tenant,
Tenant shall reimburse Landlord for such additional expense, within thirty
(30) days after demand, as Additional Rent. Throughout the performance of
Alterations by Tenant, Tenant shall carry, or cause its contractors to carry,
workers' compensation insurance as required by law and general liability
insurance, with completed operations endorsements, for any occurrence in or
about the Building, in such coverage limits as Landlord may reasonably
require, with insurers meeting the requirements of Section 7.5. Landlord and
the Persons specified in Section 7.5 shall be designated as additional
insureds on such insurance policies. Tenant shall furnish Landlord with
evidence reasonably satisfactory to Landlord that such insurance is in effect
before the commencement of Alterations and, on request of Landlord during
construction, Tenant shall provide evidence reasonably satisfactory to
Landlord that the insurance remains in effect. Upon completion of any
Alterations, Landlord or Tenant shall obtain certificates of final approval of
such Alterations required by any governmental authority and, in the case of
Alterations performed by Tenant, shall furnish Landlord with copies thereof,
together with the "as-built" plans and specifications therefor as approved in
accordance with law and the Rules and Regulations for the Building and the
Teleport. If any of Tenant's Alterations involve the removal of fixtures,
equipment or other property in the Premises which are not Tenant's Property,
the removed fixtures, equipment or other property shall be promptly replaced
at Tenant's expense with new fixtures, equipment or other property of like
utility and at least equal value, unless Landlord otherwise directs Tenant in
writing.
SECTION 8.3 LIENS AND VIOLATIONS.
--------------------
8.3.1 DISCHARGE OF LIENS AND VIOLATIONS. Tenant shall promptly procure
---------------------------------
the cancellation or discharge of all notices of violation arising from or
otherwise connected with Alterations, or any other work, done for Tenant, or
any person claiming through or under Tenant, which shall be Authority or the
Building Department of the City of New York or any other public authority.
Tenant shall not utilize materials in Alterations that are subject to security
interests or liens. Tenant shall defend, indemnify and hold Landlord harmless
from and against all liens and encumbrances or claims of liens or encumbrances
filed in connection with Alterations, or any other work, labor, services or
materials done for or supplied to Tenant, including security interests in any
materials, fixtures or articles installed in the Premises; and against all
costs, expenses and liabilities incurred in connection with any such lien or
encumbrance, or claim of lien or
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encumbrance, its removal or any related action or proceeding. Subject to
Tenant's right to contest as set forth below, Tenant shall satisfy or
discharge of record each lien or encumbrance within twenty (20) days after it
is filed. If Tenant fails to do so, Landlord shall have the right to satisfy
or discharge such lien or encumbrance by payment to the claimant on whose
behalf it was filed or by payment into court or to the County Clerk pursuant
to the New York Lien Law. Tenant shall reimburse Landlord within thirty (30)
days after demand for the costs and expenses so incurred by Landlord, as
Additional Rent, and without regard for any defense or offset that Tenant may
have had against the claimant.
8.3.2 TENANT'S RIGHT TO CONTEST LIENS. Notwithstanding anything to the
-------------------------------
contrary contained in this Section 8.3, Tenant shall have the right to contest
in good faith and with diligence the correctness or the validity of any lien,
encumbrance or claim therefor if Tenant discharges the lien of record, whether
by deposit of funds into the appropriate court or with the County Clerk or by
procuring and recording a lien release bond issued by a corporation authorized
to issue surety bonds in the State of New York in an amount equal to one and
one-half (1.5) times the amount of the claim of lien, encumbrance or claim
therefor. The bond shall meet the requirements of New York law and shall
provide for payment of any sum that the claimant may recover on the claim,
together with costs of suit if it recovers in the action. Nothing in this
Lease contained shall be construed as a consent on the part of Landlord to
subject Landlord's estate in the Premises to any lien or liability under the
Lien Law of the State of New York.
SECTION 8.4 LABOR CONDITIONS. In the performance of Alterations, Tenant
----------------
shall not permit any Labor Condition to arise or continue at the Building or
the Teleport which interferes with the progress of other construction work at
the Building or the Teleport. The determinations of the Port Authority or
Landlord as to whether any Labor Condition interferes with the progress of
other construction work at the Teleport or the Building shall be conclusive on
Tenant so long as such determinations are not arbitrary or capricious and,
upon notice from the Port Authority or Landlord, Tenant shall, or shall cause
its contractor to, rectify any Labor Condition specified in the notice as soon
as is reasonably possible, unless failure to rectify such Labor Condition
immediately will result in an emergency situation, in which event Tenant
shall, or shall cause its contractor to, rectify such Labor Condition
immediately. In the event of failure by Tenant or its contractor to comply
with the requirements of this Section (whether or not such failure is due to
Tenant's fault), the Port Authority or Landlord by notice shall have the right
to suspend the Port Authority's or Landlord's permission to Tenant to proceed
with any portion of the Alterations being performed, and Tenant shall
thereupon immediately cease the same. Unless failure to immediately suspend
construction will result in an emergency condition, the Port Authority has
agreed to give, and Landlord will give, reasonable advance notice before
directing a cessation of construction. When the Labor Condition shall be so
settled that such interference no longer exists, the Port Authority has agreed
to, or Landlord, by notice to Tenant, shall, reinstate the permission to
Tenant to perform the Alterations on all the same terms and conditions as
before the suspension. "Labor Condition" shall mean and include strikes,
boycotts, picketing, work-stoppages, slowdowns, complaints, disputes,
controversies or any other type of labor trouble, regardless of the employer
of the Person involved or their employment status, if any.
SECTION 8.5 PORT AUTHORITY'S FEE. If the Port Authority shall charge any fee
--------------------
in connection with any Alteration to the Premises, Tenant shall pay the fee.
SECTION 8.6 IMPROVEMENT FEE. Tenant shall pay to Landlord as Additional Rent
---------------
in
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connection with any Alterations except for those performed by Landlord in
connection with Tenant's initial occupancy of the Premises, Landlord's fee
(the "Improvement Fee"), which shall not exceed (i) fifteen percent (15%) of
the total cost of such Alteration if Landlord performs the Alteration on
Tenant's behalf, and (ii) if Tenant performs the Alteration, all of Landlord's
reasonable actual costs and expenses in connection with such Alteration. There
shall be excluded from such computation the cost of furniture, furnishings,
draperies, office, computer and communication equipment, painting, cabinetry,
items of special decoration and telephone installation. Prior to making any
Alteration, Tenant shall submit to Landlord a statement of Tenant's
contractor, estimating the total cost of such Alteration. The Improvement Fee
shall be calculated on the basis of such estimate and paid in equal monthly
installments during the course of the performance of the Alteration, together
with the monthly installments of Base Rent. Upon completion of the Alteration,
Tenant shall submit to Landlord a statement of Tenant's contractor, certifying
the total cost of such Alteration. The Improvement Fee shall be adjusted, if
necessary, based on the certification. Within thirty (30) days after
completion of the Alteration, Tenant shall pay to Landlord any remaining
balance of the Improvement Fee. If the Improvement Fee, as adjusted, is less
than the amount theretofore paid to Landlord, Landlord, within thirty (30)
days after receipt of the certification, shall refund to Tenant the amount of
such overpayment.
ARTICLE IX
LANDLORD'S AND TENANT'S PROPERTY
--------------------------------
SECTION 9.1 TENANT'S PROPERTY. All computer, communications and office
-----------------
equipment, whether or not attached to or built into the Premises, which are
installed in the Premises by or for the account of Tenant, without expense to
Landlord, and which can be removed without substantial damage to the Premises
or the Building, and all furniture, furnishings and other articles of movable
personal property owned by Tenant and located in the Premises shall remain the
property of Tenant ("Tenant's Property") and may be removed by Tenant at any
time during the Lease Term. Prior to the expiration of the Lease Term, or
immediately upon any earlier termination of this Lease, Tenant shall remove
from the Premises all of Tenant's Property (except such items thereof as
Landlord has expressly permitted to remain, which shall become the property of
Landlord). Tenant shall repair any damage to the Premises or to the Building
resulting from the installation or removal of Tenant's Property. Equipment or
other property for which Landlord shall have granted an allowance or credit to
Tenant, or any item installed for Tenant's account, but in replacement of an
item that was not Tenant's Property, shall not be deemed Tenant's Property and
shall become the property of Landlord.
SECTION 9.2 FIXTURES. All fixtures, equipment (other than equipment referred
--------
to in Section 9.1), improvements and appurtenances attached to or built into
the Premises at the Commencement Date or during the Lease Term, including
Alterations, shall become and remain a part of the Premises and the property
of Landlord, regardless of whether they were installed by Tenant or at
Tenant's expense, and shall not be removed by Tenant.
SECTION 9.3 [INTENTIONALLY OMITTED.]
SECTION 9.4 ABANDONMENT. If Tenant does not remove items of Tenant's
-----------
Property from
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the Premises after the expiration or earlier termination of the Lease Term,
Landlord may consider such items to have been abandoned. In that event
Landlord may retain such items as its property or dispose of them, at Tenant's
expense, in such manner as Landlord shall determine.
SECTION 9.5 TAXES ON TENANT'S PROPERTY AND NON-STANDARD TENANT IMPROVEMENTS.
---------------------------------------------------------------
9.5.1 TAXES ON TENANT'S PROPERTY. Tenant shall pay all taxes levied or
---------------------------
assessed upon Tenant's Property. If the assessed value of the Building is
increased by the inclusion of a value placed upon Tenant's Property, Tenant
shall pay to Landlord, within thirty (30) days after demand, as Additional
Rent, the taxes (including payments in lieu of taxes) levied against Landlord
on account of the included value of Tenant's Property. Landlord shall
uniformly apply this Section 9.5.1 or a similar provision to all tenants of
the Building and if Landlord does not uniformly apply such a provision,
Landlord shall not include in Building Operating Expenses any taxes that
should have been charged directly to other tenants of the Building under the
terms of such a provision.
9.5.2 [INTENTIONALLY OMITTED.]
ARTICLE X
REPAIRS AND MAINTENANCE
-----------------------
SECTION 10.1 Landlord's Obligations. Landlord, at its expense, shall keep
----------------------
and maintain the Building's exterior walls, glass, structural components, roof
and foundation and the public portions of the Building and the Building
systems and facilities serving the Premises, including, without limitation,
the mechanical, electrical, sanitary, ventilating, air conditioning and other
systems, in proper working order, condition and repair. Landlord's obligation
to perform such repairs in the Premises, or with respect to Building systems
and facilities serving the Premises, shall arise promptly after Tenant has
notified Landlord or Landlord has actual knowledge of the need for such
repairs in the Premises.
SECTION 10.2 TENANT'S OBLIGATIONS. Except for Landlord's obligations as set
--------------------
forth specifically in Sections 10.1 and 13.1, Tenant shall take good care of
the Premises and Tenant's Property. Tenant shall promptly replace all
scratched, damaged or broken doors and interior glass in the Premises with
doors and glass that match as nearly as practicable the damaged item unless
such damage or breakage is caused by the acts or omissions of Landlord.
Tenant shall be responsible for all repairs, maintenance and replacement of
wall and floor coverings and electrical fixtures and equipment in the Premises
(excluding the portions of the HVAC system located outside of the Premises and
excluding the sprinkler system and life safety system). Additionally, Tenant
shall be responsible for all maintenance and repairs, interior and exterior,
structural and non-structural, ordinary and extraordinary, of the Premises,
the Building and the Building's facilities and systems, made necessary, in
whole or in part, by: (a) the performance or existence of Tenant's Work or
Alterations (excluding any Work or Alterations performed by Landlord under the
Lease); b) the installation or use of Tenant's Property in the Premises; (c)
the moving of Tenant's Property into or out of the Building; (d) an act or
omission of Tenant or its officers, partners,
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employees, agents, representatives, contractors, sublessees or invitees; or
(e) the particular nature of Tenant's use or occupancy of the Premises. Tenant
shall promptly make all repairs in or to the Premises for which Tenant is
responsible, and such repair work shall be subject to the provisions of
Article VIII regarding Alterations, to the extent applicable. Tenant shall
also be responsible for any repairs and maintenance of the Infrastructure
required as a result of the acts or omissions of Tenant, its officers,
partners, employees, agents, representatives, contractors, sublessees or
invitees. Landlord shall perform or cause to be performed, at Tenant's
expense, any other repairs of the Building and its facilities and systems or
the Infrastructure for which Tenant is responsible. Tenant shall reimburse
Landlord on demand, as Additional Rent, for the costs of such repairs, plus
fifteen percent (15%) of such costs as an allowance for Landlord's overhead
and indirect costs.
SECTION 10.3 EXCULPATION OF LANDLORD FOR REPAIRS. Except as otherwise
-----------------------------------
expressly provided in this Lease, Landlord will not be liable to Tenant and
Tenant's obligations under this Lease shall not be reduced or abated, by
reason of any inconvenience, annoyance, interruption or injury to business
arising from Landlord making any maintenance, repairs or Alterations in or to
any portion of the Building or the Premises or in or to the fixtures,
equipment or appurtenances of the Building or the Premises, which Landlord is
required or permitted to make by this Lease, or which are required by law, or
which Landlord deems appropriate, excepting any direct (but not consequential)
damages to the extent caused by the gross negligence or willful misconduct of
Landlord or its employees. Landlord shall have the right to erect scaffolding
and barricades in the Building for purposes of such repairs, provided that
such structures do not unreasonably impair access to or use of the Premises.
Tenant waives any rights it may have under any provisions of law regarding the
duties of a lessor to repair leased premises or the rights of lessees to make
repairs if the lessor fails to do so. In the event that Landlord fails for a
period of thirty (30) days after receipt of written notice from Tenant to
perform maintenance or repairs in the Premises that Landlord is required to
perform by the terms of this Lease, and such maintenance or repairs will not
affect the utility and other systems in the Building nor interfere in any way
with the occupancy and quiet enjoyment of other tenants and occupants of the
Building, then Tenant may make such repairs to the Premises and Landlord shall
pay the reasonable cost of such repairs within thirty (30) days after receipt
of Tenant's itemized invoices for such work.
SECTION 10.4 NOTICE. Tenant will notify Landlord and Landlord will notify
------
Tenant of: (a) any occurrence in or about the Premises for which Landlord
will be liable; (b) any fire or other casualty in the Premises; (c) any damage
to or defect in the Premises, for the repair of which Landlord will be
responsible; and (d) any damage to or defect in any part of the Building's
sanitary heating, ventilating, air-conditioning or other systems located in or
passing through the Premises.
ARTICLE XI
USE AND COMPLIANCE WITH LAW
---------------------------
SECTION 11.1 USE. Tenant shall use and occupy the Premises for the Permitted
---
Use and for no other purpose.
SECTION 11.2 LICENSES AND PERMITS. Tenant shall procure and at all times
--------------------
comply with
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the terms and conditions of any governmental license or permit required for
the lawful conduct of the Permitted Use in the Premises, and Landlord shall
procure and at all times comply with the terms and conditions of any
governmental license or permit required for the lawful occupancy of the
Building, excluding licenses and permits relating to work done by or on behalf
of Tenant. at no cost to the Tenant. Landlord and Tenant shall, at no cost or
expense to Landlord, cooperate with each other in obtaining any governmental
license or permit required under this Section 11.2. Anything contained herein
to the contrary notwithstanding, to the best knowledge of Landlord, the
Permitted Use of the Premises is permissible under all applicable laws,
statutes, rules and regulations affecting the Premises and Landlord maintains
all necessary governmental licenses and permits and certificates of occupancy
for the Permitted use of the Premises.
SECTION 11.3 PROHIBITED USES. Tenant shall not at any time use or occupy or
---------------
allow any Person to use or occupy the Premises or the Infrastructure or do or
permit anything to be done or kept in or about the Premises or the Building or
the Infrastructure that solely by reason of the particular nature of Tenant's
use of the Premises or Infrastructure: (a) violates any certificate of
occupancy in force for the Building or the Infrastructure; (b) causes or is
likely to cause damage to the Building or the Infrastructure or any equipment,
facilities or other systems therein; (c) constitutes a violation of law; (d)
violates a requirement or condition of the standard fire insurance policy
issued for office or data processing buildings in the City of New York or, in
the non-arbitrary and non-capricious judgment of Landlord or the Port
Authority, constitutes an extra-hazardous condition; (e) impairs the
character, reputation, image or appearance of the Building as a first-class
data center; (f) impairs the proper and economic maintenance, operation and
repair of the Building, the Infrastructure or their respective equipment,
facilities or systems; (g) constitutes a nuisance, annoyance or inconvenience
to other lessees or occupants of the Building or the Infrastructure or any
portion of the Telehouse Complex or interferes with or disrupts the use or
occupancy of any area of the Building, the Infrastructure or any portion of
the Telehouse Complex (other than the Premises) by other lessees or occupants
of the Building or the Telehouse Complex or the Teleport; (h) interferes with
the computer or telecommunications operations of any lessee or occupant of the
Telehouse Complex or with the transmission or reception of microwave,
television, radio or other communications signals by antennae located
anywhere within the Teleport (including the Building); (i) constitutes an
unlawful, immoral or objectionable occurrence or condition; or (j) results in
repeated demonstrations, bomb threats or other events which require evacuation
of the Building or any other portion of the Telehouse Complex or otherwise
disrupts the use, occupancy or quiet enjoyment of the Building or any other
portion of the Telehouse Complex by other lessees and occupants. Tenant shall
not use or allow another Person to use any part of the Premises for a
restaurant or bar; the preparation, consumption, storage, manufacture or sale
of food, beverages, liquor, tobacco, drugs or hazardous substances; the
maintenance or operation of vending machines or devices for dispensing or sale
of food, beverages, liquor, tobacco, tobacco products or merchandise of any
kind or any equipment or device for furnishing services to the public,
including pay telephones; the business of photocopying, multilith or offset
printing (but Tenant may use part of the Premises for photocopying in
connection with its own business); a typing or stenography business; a school
or classroom; cooking, lodging or sleeping; or for immoral purposes. No
noise, vibration or odor shall be permitted to escape from the Premises.
SECTION 11.4 COMPLIANCE BY TENANT. Tenant and Landlord shall promptly
--------------------
forward to each other any notice received of the violation of any law
involving the Premises. Tenant shall comply with all laws and all Superior
Leases that impose any obligation arising from or related to:
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(a) the particular manner of Tenant's use of the Premises; (b) the conduct of
Tenant's business or operation of its equipment therein; (c) any cause or
condition created by or at the instance of Tenant; or (d) breach of any of
Tenant's obligations hereunder; and Tenant shall pay all the costs, expenses,
fines, penalties and damages which may be imposed upon Landlord by reason of
or arising out of Tenant's failure to comply with (i) the requirement for
delivery of the notice provided in the first sentence of this Section 11.4 or
(ii) any law or any Superior Lease that imposes any obligation arising from or
related to: (w) the peculiar nature of Tenant's use of the Premises; (x) the
conduct of Tenant's business or operation of its equipment therein; (y) any
cause or condition created by or at the instance of Tenant; or (z) breach of
any of the Premises by Tenant pursuant to this Section 11.4 shall be subject
to the provisions of Article VIII. Anything contained in this Lease to the
contrary notwithstanding, to the best knowledge of Landlord, at the time
possession of the Premises is delivered, the Premises shall comply fully with
(i) all laws regarding life safety, including, without limitation, New York
Local Laws Nos. 5, 16, and 58 and any similar or successor laws thereto, and
(ii) all laws regrading the removal and disposal of asbestos, including,
without limitation, New York City Local Law 76 and any similar or successor
laws thereto and (iii) American Disabilities Act.
SECTION 11.5 SERVICE CONTRACTS. Tenant shall neither contract for, nor
-----------------
employ any labor in connection with, the maintenance or cleaning of, or
providing of any other services to, the Premises or the Building (but
excluding Tenant's Property) without the prior consent of Landlord, which
consent shall not be unreasonably withheld or delayed, and the prior consent
of the Port Authority.
SECTION 11.6 FLOOR LOAD. Tenant shall not place a load upon any floor of the
----------
Premises which exceeds either the load per square foot which such floor was
designed to carry 100 pounds per square foot, or that which is allowed by law.
Landlord reserves the right to prescribe the weight and position of all safes,
business machines and mechanical equipment. Business machines and mechanical
equipment used by Tenant that cause vibrations or noise that may be
transmitted to the Building structure or to any leased space to such a degree
as to be reasonably objectionable to Landlord or to any lessees or occupants
of the Building shall be placed and maintained by Tenant, at its expense, in
settings of cork, rubber or spring-type vibration eliminators sufficient to
eliminate such vibrations or noise.
SECTION 11.7 RIGHT OF REPOSSESSION. If in order to comply with any law now
---------------------
or hereafter enacted, it becomes necessary for Landlord to recover possession
of all or any portion of the Premises, Landlord shall have the right to
repossess the Premises, or such portion thereof, at any time upon one hundred
eighty (180) days' (or any lesser time required by law) notice to Tenant, and
when said space shall have been repossessed, in lieu of any and all claims for
damages, Tenant shall be entitled to a reduction in the Base Rent equal to the
percentage that the Rentable Area of the repossessed space bears to the total
Rentable Area of the Premises, and a reduction in Tenant's Share of Taxes and
Building Operating Expenses by an amount equal to the percentage that the
Rentable Area of the repossessed space bears to the total Rentable Area of the
Building. However, if the space taken is of such an amount or size as to make
the remaining space unusable to Tenant, in Tenant's sole discretion, then
Landlord, upon thirty (30) days' notice from Tenant, shall use its best
efforts to furnish Tenant with comparable space, if available, elsewhere in
the Telehouse Complex and to place Tenant in such new space at Landlord's
expense, and this Lease and each and all of the terms, covenants and
conditions hereof shall thereupon remain in full force and effect and be
deemed applicable to such new space. For this
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purpose, comparable space shall include provision by Landlord of capability
similar to that resulting from Preparation of Premises, Section 2.3, and
Tenant Improvements, Section 3.1. If Landlord is unable to provide Tenant with
such substitute space, then this Lease shall cease and terminate on the date
(the "Repossession Date") designated in writing by Tenant to Landlord at least
thirty (30) days prior to such Repossession Date, which Repossession Date
shall not be later than ninety (90) days from the end of the thirty (30) day
notice period. No exercise by Landlord of any right reserved in this Section
11.7 shall entitle Tenant to damages for any injury or inconvenience
occasioned thereby.
SECTION 11.8 RULES AND REGULATIONS. Tenant shall observe and comply with the
---------------------
Rules and Regulations for the Teleport promulgated by the Port Authority in
the Ground Lease and the Rules and Regulations (the "Rules and Regulations")
for the Building set forth in Exhibit D hereto, and any amendments and
---------
additions thereto as Landlord may reasonably adopt or the Port Authority may
adopt from time to time for the management, safety, security, care,
cleanliness and good order of the Teleport, which Landlord should provide to
the Tenant, or of the Building. Landlord shall not be responsible or liable to
Tenant for violations of the Rules and Regulations by other lessees and
occupants of the Building. Landlord agrees that it shall not apply any Rule
or Regulation to Tenant on a discriminatory basis.
SECTION 11.9 LABOR HARMONY. Tenant shall not use (and upon notice from
-------------
Landlord shall cease using) contractors, labor, materials or equipment that,
in Landlord's reasonable judgment, would disturb labor harmony with the
workforce or trades engaged in performing other work or services in or about
the Building or the Telehouse Complex or which would violate any of the terms
of the Ground Lease.
SECTION 11.10 LANDLORD'S AND PORT AUTHORITY'S CONSENT. In the event Tenant's
---------------------------------------
compliance as required by this Lease necessitates actions by Tenant for which
this Lease requires Landlord's consent and the consent of the Port Authority,
Tenant shall obtain such consents before taking such actions. Landlord will
cooperate in obtaining the Port Authority's consent when necessary.
ARTICLE XII
RIGHTS OF LANDLORD
------------------
SECTION 12.1 Conduits in Premises. Landlord reserves the right, and Tenant
--------------------
shall permit Landlord, to install, erect, use and maintain pipes, ducts and
conduits in and through the Premises when reasonably required; provided that
--------
(i) Landlord shall disguise, conceal or camouflage the pipes, ducts and
conduits, (ii) the same are erected along perimeter walls wherever possible
and are installed in a manner that does not materially detract from the
appearance of the Premises or interfere with Tenant's use and operation of the
Premises.
SECTION 12.2 ENTRY BY LANDLORD. Landlord and its agents shall have the right
-----------------
to enter or pass through the Premises at reasonable times: (a) to examine the
Premises and to show them to actual and prospective lenders, Superior Lessors,
Superior Mortgagees, purchasers, and lessees of the Building; (b) to make
repairs and Alternations in the Premises, the Building or Building
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facilities and equipment; and (c) to take such actions as Landlord deems
necessary or desirable in an emergency, including shutting down or turning off
Tenant's computer, air conditioning, cooling and other equipment. Any entry by
Landlord shall be made on reasonable advance oral notice, except in emergency
situations. In exercising its rights under this Section 12.2, Landlord shall
take reasonable measures to avoid unnecessary interference with Tenant's use
and occupancy of the Premises. Landlord shall have a pass key or card key to
the Premises and shall be allowed to bring materials and equipment into the
Premises as necessary in connection with repairs and Alterations. If work is
to be performed by Landlord in the Premises, Tenant shall afford Landlord
access and the work shall be done with due diligence. Landlord shall not
interfere with Tenant's business operations and shall not cause any
interruption thereto; but Tenant acknowledges that Landlord's work may be done
on business days during business hours and Tenant agrees to cooperate amicably
enabling Landlord to complete such work. Landlord shall repair any damage it
causes to the Premises and shall fully restore the Premises to the condition
existing prior to the commencement of Landlord's work.
SECTION 12.3 [INTENTIONALLY OMITTED.]
SECTION 12.4 EXHIBITING THE PREMISES. During the period of six (6) months
-----------------------
prior to the date of expiration of the Lease Term, Landlord and its agents may
exhibit the Premises to prospective tenants during normal business hours, on
reasonable advance oral notice to Tenant.
SECTION 12.5. [INTENTIONALLY OMITTED]
SECTION 12.6 BUILDING NAME AND ADDRESS. Landlord reserves the right at any
-------------------------
time, without prior notice to Tenant, to change the Building's or the
Telehouse Complex's respective name or address, and Landlord shall have no
liability to Tenant for any cost or inconvenience occasioned thereby.
Landlord shall provide Tenant notice within 5 days of change.
SECTION 12.7 [INTENTIONALLY OMITTED]
SECTION 12.8 SECURITY. Landlord shall supply reasonable security measures
--------
for the Building, consistent with such services supplied for other buildings
in the Teleport. By obligating itself to provide security measures, Landlord
does not warrant or represent the adequacy or sufficiency of such security to
protect persons and property in or about the Premises or the Building, and
Landlord's obligations under this Section 12.8 are expressly subject to the
exculpatory provisions of Article XVI of this Lease. In addition, Landlord
reserves the right to institute such security measures as may be required by
the Port Authority, from time to time.
SECTION 12.9 OTHER RIGHTS. The enumeration of rights of Landlord in this
------------
Article is not all-inclusive, and shall not be construed to preclude or limit
other rights reserved to Landlord by this Lease or by law.
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ARTICLE XIII
DAMAGE OR DESTRUCTION
---------------------
SECTION 13.1 RESTORATION. If the Building or the Premises is partially
-----------
damaged or totally destroyed by fire or other casualty, and if this Lease is
not terminated as provided in this Article XIII, Landlord shall repair the
damage and restore the Building or the Premises (except for Tenant's
Property), as the case may be, with reasonable dispatch after notice to
Landlord of the damage or destruction and the collection of substantially all
of the insurance proceeds receivable on account of the casualty; provided,
--------
that in no event shall Landlord be required to expend on such restoration
amounts in excess of the total insurance proceeds collected on account of the
casualty. Tenant shall not be obligated to repair damage to or destruction of
the Building or the Premises caused by such casualty.
SECTION 13.2 RENT ABATEMENT. If fire or other casualty damages or destroys
--------------
or renders the Premises untenantable, or deprives Tenant of reasonable access
to the Premises, the Base Rent shall be abated or reduced in the proportion
that the Rentable Area of the untenantable portion of the Premises bears to
the total Rentable Area of the Premises, for the period from the date of the
damage or destruction to the date that any damage to the Premises has been
substantially repaired except for Punch-List Items and Tenant has reasonable
access to the Premises and Tenant's Share of Taxes and Building Operating
Expenses shall be adjusted to the percentage that the Rentable Area of the
portion of the Premises that has not been rendered untenantable bears to the
then Rentable Area of the Building after the casualty; provided, however,
-------- -------
should Tenant reoccupy a portion of the Premises for the conduct of Tenant's
Business during the period the repair work is taking place and prior to the
date that the Premises are substantially repaired, the Base Rent and
Additional Rent allocable to such reoccupied portion, based upon the
proportion which the Rentable Area of the reoccupied portion of the Premises
bears to the total Rentable Area of the Premises, shall be payable by Tenant,
and Tenant's Share of Taxes and Building Operating Expenses shall be adjusted
based upon the proportion which the Rentable Area of the reoccupied portion of
the Premises bears to the then total Rentable Area of the Building, from the
date of such occupancy.
SECTION 13.3 [INTENTIONALLY OMITTED]
-----------------------
SECTION 13.4 ELECTION TO TERMINATE.
---------------------
13.4.1 LANDLORD'S ELECTION TO TERMINATE. If: (i) the Building or the
--------------------------------
Premises is totally destroyed by fire or other casualty; or (ii) the Building
is so damaged (whether or not the Premises are damaged or destroyed) that
Landlord elects not to restore the Building; or (iii) less than one (1) year
remains in the Lease Term at the time of the fire or other casualty and the
time necessary to rebuild or repair the Building or the Premises, in the
opinion of a reputable contractor, would exceed ninety (90) days; then, in any
of such cases, either party may terminate this Lease by giving the other party
notice to such effect within ninety (90) days after the date of the casualty.
This Lease shall terminate on the date specified in such party's notice.
13.4.2 TENANT'S ELECTION TO TERMINATE. If: (i) the Building is totally
------------------------------
destroyed by fire or other casualty; or (ii) the Building or the Premises is
damaged to such an extent that Tenant cannot reasonably expect to conduct its
business for a period exceeding ninety (90) days from
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the date of the casualty, Tenant may terminate this Lease by giving Landlord
notice within ninety (90) days after the date of the casualty, and this Lease
shall terminate as of the date of the casualty.
SECTION 13.5 BUSINESS INTERRUPTION. Except as set forth in Section 6.1.5 and
---------------------
Section 6.2.2 of the Lease, Tenant shall not be entitled to any compensation
or rent abatement solely on account of inconvenience, loss of business or
annoyance arising from any repair or restoration of any portion of the
Premises or of the Building pursuant to this Article XIII. Landlord shall
exert reasonable efforts to make such repair or restoration promptly and in
such manner as not to interfere unreasonably with Tenant's use and occupancy
of the Premises, but Landlord shall have no obligation to perform such work on
an overtime or premium-pay base.
SECTION 13.6 TENANT'S PROPERTY. Landlord shall not be obligated to repair
-----------------
any damage to or replace Tenant's Property.
SECTION 13.7 WAIVER. Tenant hereby waives the application of any law, now or
------
hereafter in force, to any case of damage to or destruction of the Building or
the Premises by fire or other casualty, or to a taking of all or part of the
Building or the Premises subject to the provisions of Article XIV below. This
Article XIII constitutes an express agreement governing the case of damage or
destruction of the Premises or the Building by fire or other casualty, and
Section 227 of the Real Property Law of the State of New York, which provides
for such contingency in the absence of an express agreement, shall not apply
in any such case.
ARTICLE XIV
EMINENT DOMAIN
--------------
SECTION 14.1 COMPLETE TAKING. If the whole of the Building or the Premises
---------------
is taken by condemnation, sale in lieu of condemnation, or in any other manner
for any public or quasi-public use or purpose ("Eminent Domain"), this Lease
and the term and estate hereby granted shall terminate as of the date of
vesting of title on such taking or the date that the condemning or purchasing
authority takes possession, whichever is earlier ("Date of the Taking"), and
the Rents shall be prorated and adjusted as of such date.
SECTION 14.2 PARTIAL TAKING. If only part of the Building is taken by
--------------
Eminent Domain, this Lease shall be unaffected by such taking, except that:
(a) if more than twenty-five percent (25%) of the Rentable Area of the
Building shall be taken, whether or not any portion of the Premises shall be
affected thereby, or if so much of the Building shall be taken that Landlord
in the exercise of its good faith business judgment determines that it would
be economically or operationally impractical to operate (including
impracticability of providing conditioned air or of operating the emergency
power system) the portion of the Building remaining after the taking, Landlord
may, at its option, terminate this Lease by giving Tenant sixty (60) days
prior notice to that effect within thirty (30) days after the Date of the
Taking, and (b) if twenty percent (20%) or more of the Premises shall be so
taken and the remaining area of the Premises shall not be reasonably adequate
for Tenant to continue operation of its business, Tenant may terminate this
Lease by giving Landlord sixty (60) days prior notice to that effect within
thirty (30) days after the Date of the
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Taking. This Lease shall terminate on the sixtieth (60th) day after the date
that such termination notice from Landlord or Tenant is given, and the Rents
shall be prorated and adjusted as of such termination date. Upon a partial
taking, where this Lease continues in force as to any part of the Premises,
the Base Rent shall be reduced by the percentage that the Rentable Area of the
portion of the Premises taken bears to the Rentable Area of the Premises prior
to the taking, and Tenant's Share of Taxes and Building Operating Expenses
shall be adjusted to the percentage that the Rentable Area of the portion of
the Premises left to Tenant bears to the Rentable Area of the Building after
the taking.
SECTION 14.3 AWARD. Landlord shall be entitled to receive the entire award or
-----
payment in connection with any taking of the Premises, without deduction for
any estate vested in Tenant by this Lease. Tenant hereby expressly assigns to
Landlord all of its right, title and interest in and to every such award or
payment. Tenant shall be entitled to claim and receive any award or payment
from the condemning authority expressly granted for the taking of Tenant's
Property, interruption of its business or moving expenses, but only if
Tenant's claim does not adversely affect or result in any reduction of
Landlord's or the Port Authority's award or interfere with Landlord's or the
Port Authority's prosecution of its claim for the taking. If Tenant
intervenes in a condemnation proceeding in which Landlord or the Port
Authority is a party, Landlord and Landlord's counsel or the Port Authority
and the Port Authority's counsel shall manage and control the proceeding for
the claimants.
SECTION 14.4 TEMPORARY TAKING. If all or any portion of the Premises is
----------------
taken by Eminent Domain for a limited period of time,not exceeding fourteen
(14) days this Lease shall remain in full force and effect and Tenant shall
continue to perform all of Tenant's obligations under this Lease, including,
without limitation, the payment of Rents. Tenant shall be entitled to receive
that portion of the award which is made for any such temporary taking of the
Premises attributable to any period within the Lease Term and for any damage
to Tenant's Property. Landlord shall be entitled to receive that portion of
the award which is made for any such temporary taking of the Premises
attributable to the period after the expiration of the Lease Term or which is
allocable to the Building, other than the Premises, or to the cost of
restoration of the Premises or which is made for any other purpose. If any
such temporary taking terminates prior to the expiration of the Lease Term,
Tenant shall restore the Premises as nearly as possible to their condition
prior to the taking, at Tenant's sole cost and expense; provided that Tenant
shall receive the portion of the award attributable to such restoration. If
all of the Premises is taken by Eminent Domain for a period of time longer
than ninety (90) consecutive days, then Tenant shall have the right to treat
such taking as a Total Taking and the provisions of Sections 14.1 and 14.3
shall apply. If less than all of the Premises is taken by Eminent Domain for
a period of time longer than ninety (90) consecutive days, then Tenant shall
have the right to treat such taking as a Partial Taking and the provisions of
Sections 14.2 and 14.3 shall apply.
ARTICLE XV
SURRENDER OF PREMISES
---------------------
SECTION 15.1 SURRENDER. On the last day of the Lease Term, or upon any
---------
earlier termination of this Lease, or upon any re-entry by Landlord upon the
Premises, Tenant shall quit
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and surrender the Premises to Landlord "broom-clean" and in good order,
condition and repair, ordinary wear and tear and also excepting any damage or
destruction caused by fire or other casualty which Tenant is not obligated by
this Lease to repair. As provided in Section 9.2, Tenant shall remove all of
Tenant's Property from the Premises.
SECTION 15.2 ACCEPTANCE OF SURRENDER. Prior to expiration of the Lease Term,
-----------------------
or earlier termination of this Lease in accordance with the terms hereof, no
act or thing done by Landlord or its agents (including accepting the keys to
the Premises) shall be deemed an acceptance of surrender of the Premises, and
no agreement to accept such surrender shall be valid unless in writing and
signed by Landlord.
SECTION 15.3 NO MERGER. The surrender of this Lease by Tenant or the
--------
termination of this Lease prior to expiration of the Lease Term shall not
constitute a merger, and at the option of Landlord shall operate as an
assignment to Landlord of any subleases of the Premises.
SECTION 15.4 NO HOLDING OVER. There shall be no holding over by Tenant after
---------------
expiration of the Lease Term, and the failure by Tenant to deliver possession
of the Premises to Landlord shall be an unlawful detainer.
ARTICLE XVI
EXCULPATION AND INDEMNIFICATION
-------------------------------
SECTION 16.1 Exculpation. Except to the extent provided for in this Lease,
-----------
neither Landlord, nor any partner, shareholder, director, officer, agent or
employee of Landlord nor the Port Authority nor the agents or employees of the
Port Authority shall be liable to Tenant or its partners, directors, officers,
contractors, agents,employees, invitees, sublessees or licensees, for any
loss,injury or damage to Tenant or to any other Person, or to its or their
property, irrespective of the cause of such injury, damage or loss, including
but not limited to, claims for damage resulting from: (i) any equipment or
appurtenances becoming out of repair; (ii) injury done or occasioned by
weather conditions; (iii) any defect in or failure of plumbing, heating or air
conditioning equipment, raised flooring, leak detection equipment, gas, water,
and steam pipes, stairs, porches, railings or walks; (iv) broken glass; (v)
the backing up of any sewer pipe or downspout; (vi) the bursting, leaking or
running of any water pipe, air conditioner, humidifier, chiller, tank, tub,
washstand, water closet, waste pipe, sprinkler, drain or any other pipe or
tank in, upon or about the Building or the Premises; (vii) the escape of steam
or hot water; (viii) water, snow or ice being upon or coming through the roof
or any skylight, trapdoor, stair, doorway, window, walk or any other place
upon or near the Building or the Premises or otherwise; (ix) the falling of
any fixture, plaster, tile or stucco; and (x) any act, omission or negligence
of other lessees, licensees or other occupants of the Building or of adjoining
or contiguous buildings or of owners of adjacent or contiguous property;
unless solely caused by or solely resulting from the gross negligence or
willful misconduct of Landlord or its employees in the operation or
maintenance of the Premises or the Building, without any contributing
negligence on the part of Tenant or any of its sublessees or licensees or its
or their employees, agents or contractors, or any other lessees or occupants
of the Building. Further, neither Landlord, nor any partner, shareholder,
director, officer, agent or employee of Landlord nor the Port Authority or the
Commissioners, officers, agents and employees of the Port Authority in its
capacity as Superior
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Lessor shall be liable: (a) for any such damage caused by other lessees or
Persons in or about the Building, or caused by operations in construction of
any private, public or quasi-public work; or (b) for consequential damages,
whether arising out of any loss of the use of the Premises or any equipment or
facilities therein by Tenant or any Person claiming through or under Tenant,
or arising from any other cause including the gross negligence or willful
misconduct of Landlord or its agents, contractors or employees.
SECTION 16.2 INDEMNITY.
---------
(A) To the extent not covered by insurance, Tenant shall defend,
indemnify and hold harmless Landlord, the Port Authority and the Commissioners
of the Port Authority, all Superior Lessors and Superior Mortgagees, and its
and their respective partners, directors, officers, agents and employees (in
the case of the Landlord only, to the extent not covered by insurance
maintained by Landlord) from and against any and all claims, demands,
liability, losses, damages, costs and expenses arising from or in connection
with: (a) the use or occupancy of the Premises or the conduct or management
of the Premises or of any business therein, or any work or act whatsoever
done, or any condition created (other than by Landlord or with respect to
which Landlord is obligated to remedy pursuant to the terms and provisions of
this Lease) in or about the Premises during the Lease Term or during the
period of time, if any, prior to the Commencement Date that Tenant may have
been given access to the Premises or during any holdover by Tenant after the
expiration or earlier termination of this Lease; (b) any act or omission of
Tenant or any of its subtenants or licensees or its or their partners,
directors, officers, members, agents, employees, representatives, contractors,
customers, guests, invitees and other Persons doing business with Tenant or
who are at the Premises with Tenant's consent (whether or not such acts or
omissions occur at the Premises or elsewhere in the Teleport); (c) any
accident, injury or damage whatever (unless caused solely by Landlord's
negligence) occurring in or about the Premises; and (d) any breach or default
by Tenant in the full and prompt payment and performance of Tenant's
obligations under this Lease or under any other lease of space in the
Telehouse Complex or any ancillary service agreement or other agreement
between Landlord and Tenant. If any claim, action or proceeding is brought
against any of the persons indemnified under this Section 16.2 (A) for a
matter covered by this indemnity, Tenant, upon notice from the indemnified
Person, shall defend such claim, action or proceeding by counsel reasonably
satisfactory to Landlord and the indemnified Person. In the conduct of such
defense, Tenant shall not, without obtaining express advance permission from
the General Counsel of the Port Authority, raise any defense involving in any
way the jurisdiction of the tribunal over the person of the Port Authority,
the immunity of the Port Authority, its Commissioners, officers, agents or
employees, the governmental nature of the Port Authority, or the provisions of
any statutes respecting suits against the Port Authority. Any party seeking
indemnification pursuant to this Section 16.2 (A) shall (i) give prompt
written notice to Tenant of the commencement by a third party of any action,
suit or proceeding or of any written threat from a third party of any claim,
action, suit or proceeding for which such party shall seek to be indemnified,
(ii) advise Tenant in writing upon request of the status of the same, (iii)
cooperate, at no expense to such party, with Tenant with respect to the
defense of the same, and (iv) not settle or compromise any such claim, action,
suit or proceeding without Tenant's prior written consent, which consent shall
not unreasonably be withheld. The Tenant's obligations under this Section
16.2 (A) shall not be diminished by any delay or failure to comply with the
foregoing clauses (i) through (iv), except to the extent that such failure or
delay results in any increased costs or material prejudice to Tenant solely as
a result of such failure or delay.
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(B) Landlord shall defend, indemnify and hold harmless Tenant and its
partners, directors, officers, agents and employees (to the extent not covered
by insurance maintained by Tenant) from and against any and all claims,
liability, losses, damages, costs and expenses arising from or in connection
with: (a) the use or occupancy of the Building (other than the Premises) or
the conduct or management of the Building (other than the Premises), or any
work or act whatsoever done, or any condition created (other than by Tenant or
with respect to which Tenant is obligated to remedy pursuant to the terms and
provisions of this Lease) in or about the Building (other than the Premises)
during the Lease Term or during the period of time, if any, prior to the
Commencement Date that Tenant may have been given access to the Premises or
during any holdover (with Landlord's express written consent) by Tenant after
the expiration or earlier termination of this Lease; (b) any act or omission
of Landlord or any of its partners, directors, officers, members, agents,
employees, representatives, and contractors, and other Persons doing business
with Landlord (excluding other tenants and occupants of the Building) (whether
or not such acts or omissions occur at the Building or elsewhere in the
Teleport); (c) any accident, injury or damage whatever (unless causes solely
by Tenant's negligence) occurring in or about the Building (other than the
Premises); and (d) any breach or default by Landlord in the full and prompt
payment and performance of Landlord's obligations under this Lease or any
ancillary service agreement or other agreement between Landlord and Tenant.
If any claim, action or proceeding is brought against any of the persons
indemnified under this Section 16.2 (B) for a matter covered by this
indemnity, Landlord, upon notice from the indemnified Person, shall defend
such claim, action or proceeding by counsel reasonably satisfactory to Tenant
and the indemnified Person. Any party seeking indemnification pursuant to
this Section 16.2 (B) shall (i) give prompt written notice to Landlord of the
commencement by a third party of any action, suit or proceeding or of any
written threat from a third party of any claim, action, suit or proceeding for
which such party shall seek to be indemnified, (ii) advise Landlord in writing
upon request of the status of the same, (iii) cooperate, at no expense to such
party, with Landlord with respect to the defense of the same, and (iv) not
settle or compromise any such claim, action, suit or proceeding without
Landlord's prior written consent, which consent shall not unreasonably be
withheld. Landlord's obligations under this Section 16.2 (B) shall not be
diminished by any delay or failure to comply with the foregoing clauses (i)
through (iv), except to the extent that such failure or delay results in any
increased costs or material prejudice to Landlord solely as a result of such
failure or delay.
SECTION 16.3 TRANSFERS OF LANDLORD'S INTEREST. The term "Landlord" shall
--------------------------------
mean only the owner at the time in question of the present Landlord's interest
in the Building. In the event of a sale or transfer of the Building (by
operation of law or otherwise) or a lease of all or substantially all of the
Building, or a sale or transfer (by operation of law or otherwise) of the
leasehold estate under any such lease, the grantor, transferor or lessor, as
the case may be, shall be and hereby is (to the extent of the interest or
portion of the Building or leasehold estate sold, transferred or leased)
automatically and entirely released and discharged, from and after the date of
such sale and other thus accrued obligations, transfer or leasing, of all
liability in respect of the performance of any of the terms of this Lease on
the part of Landlord thereafter to be performed; it being intended that
Landlord's obligations hereunder shall be binding on Landlord, its successors
and assigns only during and in respect of their respective successive periods
of ownership. In the event of such a sale, transfer or leasing, the covenants
of Landlord shall thereafter be binding upon the transferee of Landlord's
interest. If Landlord's interest in the Building shall be sold, assigned or
otherwise transferred to any Person, including any transfer upon the exercise
of any remedy provided in a Superior Lease or a Superior Mortgage or at law or
equity, that Person, and
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each Person thereafter succeeding to its interest in the Building, shall not
be: (a) liable for any act or omission of Landlord under this Lease occurring
prior to such sale, assignment or other transfer; (b) subject to any offset,
defense or counterclaim accruing prior to such sale, assignment, or other
transfer; (c) bound by any payment prior to such sale, assignment or other
transfer of Base Rent or Additional Rent for more than one month in advance;
and (d) liable for the return of the Security Deposit except to the extent
that the Security Deposit has been paid over to such Person.
SECTION 16.4 RECOURSE LIMITED TO BUILDING. No recourse shall be had on any
----------------------------
of Landlord's obligations hereunder or for any claim based thereon or
otherwise in respect thereof against any agent, incorporator, subscriber to
the capital stock, shareholder, officer, director, or employee, past, present
or future, of any corporation or any joint venturer of a joint venture which
shall be Landlord hereunder or included in the term "Landlord" or of any
successor of any such corporation, or against any principal, disclosed or
undisclosed, or any affiliate of any party which at the time the obligation
accrued shall have been Landlord or included in the term "Landlord", whether
directly or through Landlord or through any receiver, assignee, trustee in
bankruptcy or through any other Person, whether by virtue of any law or by
enforcement of any assessment or penalty or otherwise, except to the extent of
the interest of any of the foregoing in the Building or the proceeds of the
Building, all such liability, except as aforesaid, being expressly waived and
released by Tenant. Tenant shall look solely to Landlord's estate and
interest in the Building or the proceeds of the Building for the satisfaction
of any right of Tenant for the collection of a judgment or other judicial
process or arbitration award requiring the payment of money by Landlord, and
no other property or assets of Landlord, Landlord's agents, incorporators,
subscribers, shareholders, officers, directors, employees, partners,
principals (disclosed or undisclosed) or affiliates shall be subject to levy,
lien, execution, attachment, or other enforcement procedure for the
satisfaction of Tenant's rights and remedies under or with respect to this
Lease, the relationship of Landlord and Tenant, or Tenant's use and occupancy
of the Premises or any other liability of Landlord to Tenant.
SECTION 16.5 RESPONSIBILITY FOR INFRASTRUCTURE. The Infrastructure has been
---------------------------------
designed and constructed and will be repaired and maintained by the Port
Authority. Landlord shall have no responsibility regarding the
Infrastructure, and the Rents will not be reduced or abated, nor will Tenant's
other obligations hereunder be affected, by any defect or change in, or
closure of, or failure to complete, the Infrastructure; provided however, the
----------------
Base Rent and Tenant's Share of Taxes and Building Operating Expenses will be
abated on a daily basis for each day of twelve (12) hours or more that Tenant
is denied access to the Building by some defect in or repair or closure of the
Infrastructure; and provided further, that the provisions set forth in Section
----------------
6.1.5 and Section 6.2.2 shall apply.
ARTICLE XVII
SUBORDINATION AND ATTORNMENT
----------------------------
SECTION 17.1 Subordination. This Lease, and all rights of Tenant under it,
-------------
are subordinate to the Ground Lease and the rights of the Port Authority
thereunder and all present and future ground leases of all or any part of the
Building or any other part of the Telehouse
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Complex (except for leases of office or commercial space within the Building
or other portions of the Telehouse Complex); existing present and future
mortgages encumbering the Building, the Telehouse Complex or any of such
leases, including mortgages also covering other real property; all past and
future advances made under such mortgages, all renewals, modifications,
replacements and extensions of such leases and such mortgages and spreaders
and consolidations of such mortgages; unless the lessor under any such lease
or the mortgagee under any such mortgage elects that this Lease shall be
superior to his lease or mortgage pursuant to Section 17.2. This Section 17.1
shall be self-operative and no further instrument of subordination shall be
required. However, in confirmation of subordination, Tenant shall promptly
execute, acknowledge and deliver any instrument, reasonably satisfactory to
Tenant, that Landlord, the lessor under any such lease or the mortgagee under
any such mortgage or any of their respective successors in interest may
reasonably request to evidence such subordination. If Tenant fails to execute,
acknowledge or deliver any such instrument within fifteen (15) days after
request therefor, such failure shall constitute a material default under this
Lease. Tenant hereby irrevocably appoints Landlord as Tenant's attorney-in-
fact, with full power of substitution, coupled with an interest, to execute,
acknowledge and deliver any such instrument for and on behalf of Tenant in the
event of such a default by Tenant, but exercise by Landlord of its power of
attorney shall not cure the default. Any lease to which this Lease, at the
time referred to, is subordinate (including the Ground Lease) is herein called
a "Superior Lease" and the lessor of a Superior Lease or its successor in
interest, at the time referred to (including the Port Authority), is herein
called a "Superior Lessor"; and any mortgage to which this Lease, at the time
referred to, is subordinate is herein called a "Superior Mortgage" and the
holder of a Superior Mortgage is herein called a "Superior Mortgagee". Each
Superior Lessor or Superior Mortgagee is also herein called a "Superior
Interest Holder".
SECTION 17.2 ELECTION TO SUBORDINATE. By written notice to Tenant, any
-----------------------
Superior Lessor or Superior Mortgagee may elect to subordinate its Superior
Lease or Superior Mortgage to this Lease.
SECTION 17.3 NOTICE AND CURE OF LANDLORD'S DEFAULT. If any act or omission
-------------------------------------
of Landlord would give Tenant the right, immediately or after lapse of a
period of time, to cancel or terminate this Lease, or to claim a partial or
total eviction, Tenant shall not exercise such right until: (a) it has given
written notice of the act or omission to Landlord, to the Port Authority at
its address specified in Section 24.13 and to each Superior Mortgagee and
Superior Lessor whose name and address shall previously have been furnished to
Tenant, which notice shall specifically refer to this Section 17.3 and shall
describe Landlord's default with reasonable detail, specifying the section of
this Lease as to which Landlord is in default, and (b) a reasonable period for
remedying the act or omission shall have elapsed following the giving of such
notice and following the time during which the Port Authority and each such
Superior Mortgagee or Superior Lessor would be entitled under its Superior
Mortgage or Superior Lease to remedy the act or omission (which reasonable
period shall in no event be shorter than the period during which Landlord
would be entitled under this Lease, after similar notice, to effect such
remedy nor be shorter than thirty (30) days). If, within said reasonable
period, the Port Authority or such a Superior Mortgagee or Superior Lessor
gives Tenant notice of its intention to remedy the act or omission, and
thereafter diligently commences the required remedial action and pursues it to
completion, Tenant shall have no right to terminate this Lease on account of
the act or omission.
SECTION 17.4 ATTORNMENT. Any Superior Lessor or Superior Mortgagee who
----------
succeeds to
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the rights of Landlord under this Lease, whether through exercise of remedies
in a Superior Lease or Superior Mortgage or by operation of law, is in this
Section 17.4 called a "Successor Landlord". Subject to the terms of any non-
disturbance agreement between Tenant and the Superior Landlord, if such
Successor Landlord does not elect to treat this Lease as extinguished, upon
the Successor Landlord's request, Tenant shall attorn to and recognize the
Successor Landlord as Tenant's landlord under this Lease and shall promptly
execute and deliver any instrument that such Successor Landlord may reasonably
request to evidence the attornment. Tenant hereby irrevocably appoints
Landlord or the Successor Landlord as Tenant's attorney-in-fact, coupled with
an interest, to execute, acknowledge and deliver the instrument of attornment
on behalf of Tenant in the event Tenant fails to do so within twenty (20) days
after receipt. Upon attornment, this Lease shall continue in full force and
effect and as a direct lease between the Successor Landlord and Tenant, upon
all of the terms, conditions and covenants as are set forth in this Lease,
subject to the provisions of Section 16.3.
SECTION 17.5 Requirements of Superior Lessor or Mortgagee. If any Superior
Lessor or Superior Mortgagee requires any modifications of this Lease, Tenant
shall, at Landlord's request, promptly execute and deliver to Landlord
instruments effecting the modifications that the Superior Lessor or Superior
Mortgagee requires, provided that such modifications do not adversely affect
in a material respect any of Tenant's rights or Landlord's obligation, or
reduce limit or modify, in a manner materially adverse to Tenant, Landlord's
obligations under this Lease.
SECTION 17.6 COMPLIANCE WITH GROUND LEASE.
----------------------------
17.6.1 APPROVAL OF LEASE AND SUBLEASE BY PORT AUTHORITY.
------------------------------------------------
Notwithstanding the execution of this Lease by Landlord and Tenant, if the
Port Authority shall refuse to execute and deliver a consent agreement in the
form attached to the Ground Lease as "Exhibit Z", a copy of which is attached
hereto as Exhibit Z, then on the date of such refusal this Lease shall
terminate and all obligations of Landlord and Tenant arising thereafter shall
be discharged and released automatically. In addition, if the Port Authority
shall fail to execute and deliver a consent agreement in the form attached to
the Ground Lease as "Exhibit Z", a copy of which is attached hereto as Exhibit
Z within fourteen (14) days from the Fixed Commencement Date, then Tenant
shall have the right to terminate this lease and all obligations of Landlord
and Tenant arising thereafter shall thereafter be discharged and released.
Alternatively, if either Landlord or Tenant elects not to perform any of their
respective obligations hereunder until the Port Authority consents, then this
Lease shall not become effective until Landlord, Tenant and the Port Authority
shall each have executed a consent agreement in the form attached to the
Ground Lease as "Exhibit Z", a copy of which is attached hereto as Exhibit Z.
Additionally, no sublease of the Premises or assignment of this Lease shall be
effective until Tenant, its proposed subtenant or assignee and the Port
Authority shall each have executed a consent agreement in the form attached
hereto as Exhibit Z. Use or occupancy of the Premises by Tenant or any
subtenant or assignee pursuant to consent by the Port Authority shall not
entitle any such subtenant or assignee to any rights or privileges which the
Port Authority has or may hereafter accord to lessees of space at the
Teleport.
17.6.2 COMPLIANCE WITH GROUND LEASE. Tenant shall: (i) observe, be
----------------------------
bound by, and comply with all of the terms, provisions, covenants and
conditions of the Ground Lease affecting its operations under or in connection
with this Lease and its occupancy of the Premises; (ii) use the Premises for
the Permitted Use and for no other purpose whatsoever; and (iii) pay
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directly to the Port Authority on demand any rental, fee, charge or other
amount due to Landlord if Landlord shall be under notice of default under the
Ground Lease. Notwithstanding the foregoing and, except as otherwise provided
herein, Tenant shall not be bound by or be required to comply with any payment
obligation of Landlord under the Ground Lease. If the default shall have been
remedied, the Port Authority shall remit to Landlord any such rentals, fees,
charges or other amounts it has collected and which have not been used by the
Port Authority to cure the default pursuant to the terms of the Ground Lease.
No change or modification to this Lease shall be binding on the Port Authority
unless and until the Port Authority shall have given its written approval to
such change or modification. This Lease shall terminate and expire, without
notice to Tenant, no later than the day preceding the date of expiration of
the Ground Lease, or on the earlier expiration date of the Lease Term, or on
the effective date of any revocation of the Port Authority's consent to this
Lease. The Ground Lease requires that this Lease contain the following
provision, and Tenant agrees to perform and comply with the covenants of the
"Tenant" contained therein:
"Tenant covenants and agrees that, if by reason of a default upon the part of
Landlord who is the Lessee under the Underlying Lease covering the demised
premises, to wit, the Agreement of Lease between The Port Authority of New
York and New Jersey as Lessor and TELEHOUSE International Corporation of
America, as Lessee, in the performance of any of the terms or provisions of
such Underlying Lease or if for any other reason of any nature whatsoever such
Underlying Lease and the leasehold estate of the Lessee thereunder are
terminated by summary dispossess proceedings or otherwise, Tenant, at the
request in writing of the then landlord under such Underlying Lease, shall
attorn to and recognize such landlord as Tenant's landlord under this lease.
Tenant covenants and agrees to execute and deliver, at any time and from time
to time, upon the request of the landlord under such Underlying Lease, any
instrument which may be necessary or appropriate to evidence such attornment.
Tenant further waives the provisions of any statute or rule of law now or
hereafter in effect which may terminate this lease or give or purport to give
Tenant any right of election to terminate this lease or to surrender
possession of the premises demised hereby in the event such Underlying Lease
terminates or in the event any such proceeding is brought by the landlord
under such Underlying Lease if such landlord shall have requested in writing
that Tenant attorn, as aforesaid, and in that circumstance Tenant agrees that
this lease shall not be affected in any way whatsoever by any such proceeding
or termination. Nothing contained herein shall obligate the landlord to
request the Tenant to attorn or to accept such attornment from the Tenant."
ARTICLE XVIII
QUIET ENJOYMENT
---------------
SECTION 18.1 Quiet Enjoyment. So long as Tenant timely pays all the Rents
---------------
and performs all of Tenant's other obligations hereunder within the time
periods permitted under this Lease, Tenant shall peaceably and quietly, hold
and enjoy the Premises during the Lease Term without hindrance or ejection by
Landlord or any person lawfully claiming through or under Landlord, subject,
nevertheless, to the provisions and to Superior Leases and Superior
Mortgages. This covenant is a covenant running with the land, and is not a
personal covenant of Landlord, except to the extent of Landlord's interest in
this Lease and for only so long as such
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interest shall continue.
ARTICLE XIX
ASSIGNMENTS AND SUBLEASES
-------------------------
SECTION 19.1 [INTENTIONALLY OMITTED]
SECTION 19.2 PROHIBITION. Tenant shall not mortgage, pledge, encumber or
-----------
otherwise hypothecate this Lease or the Premises or any part thereof in any
manner whatsoever, and any attempt to do so shall be void and a material
breach of this Lease. Provided that Tenant obtains the prior written consent
of the Port Authority pursuant to Section 17.6 and of Landlord in accordance
with the provisions of this Article XIX, then Tenant may (a) assign or
otherwise transfer this Lease or offer or advertise to do so; or (b) sublet
the Premises or any part thereof, or offer or advertise to do so. Any attempt
by Tenant to assign or transfer this Lease or offer or advertise to do so, or
sublet the Premises or offer or advertise to do so, without strictly complying
with the requirements of Section 17.6 and this Article XIX shall be void and a
material breach of this Lease. Use or occupancy of the Premises by a
licensee, concessionaire, or any other Person other than Tenant is a sublease
subject to the provisions of this Article XIX.
SECTION 19.3 CORPORATE AND PARTNERSHIP TRANSACTIONS. If Tenant is a
--------------------------------------
corporation, a dissolution of the corporation or a transfer (by one or more
transactions) of a majority of the voting stock of Tenant shall be deemed an
assignment of this Lease subject to the provisions of Section 17.6 and this
Article XIX; but the provisions of this Article XIX shall not apply to
transactions with a corporation into or with which Tenant is merged or
consolidated or to which substantially all of Tenant's assets are transferred
or which controls or is controlled by Tenant or is under common control with
Tenant, provided that a principal purpose of such merger or transfer is not
the assignment of this Lease and that in any of such events the successor to
Tenant has a net worth computed in accordance with generally accepted
accounting principles at least equal to the net worth of Tenant immediately
prior to such merger, consolidation or transfer. Proof satisfactory to
Landlord of such net worth shall be delivered to Landlord at least thirty (30)
days prior to the effective date of any such transaction. If Tenant is a
partnership, a dissolution of the partnership or a transfer of the
controlling interest in Tenant (including the admission of new partners or
withdrawal of existing partners having a controlling interest) shall be deemed
an assignment of this Lease subject to the provisions of Section 17.6 and this
Article XIX, regardless of whether the transfer is made by one or more
transactions, or whether one or more Persons hold the controlling interest
prior to the transfer or afterwards.
SECTION 19.4 NOTICE TO LANDLORD. Tenant shall give notice to Landlord of any
------------------
proposed assignment or sublease accompanied by: (a) a conformed or
photostatic copy of the proposed assignment or sublease; (b) a statement
setting forth in reasonable detail the identity of the proposed assignee or
sublessee, the nature of its business and (for a proposed sublease) the space
to be sublet; and (c) current financial information with respect to proposed
assignee or sublessee, including, without limitation, its most recent
financial report.
SECTION 19.5 [INTENTIONALLY OMITTED]
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SECTION 19.6 [INTENTIONALLY OMITTED]
SECTION 19.7 [INTENTIONALLY OMITTED]
SECTION 19.8 CONSENT BY LANDLORD. Landlord, in its reasonable judgment,
-------------------
shall either consent, or withhold its consent, to the proposed assignment or
sublease. Landlord may condition its consent on reasonable conditions,
including, without limitation, the following requirements:
19.8.1. The business of the proposed assignee or sub-tenant and its use
of the Premises, or the relevant portion thereof, must be consistent with the
Permitted Use and, in Landlord's judgment, in keeping with the standards of
the Building.
19.8.2 The proposed assignee or subtenant must be a reputable person of
good character, with sufficient assets and income, in Landlord's judgment, to
bear the financial responsibilities of Tenant under this Lease, and Landlord
must be furnished with reasonable proof thereof.
19.8.3 Neither the proposed assignee or sublessee, nor any person who
directly or indirectly, controls, is controlled by, or is under common control
with, the proposed assignee or sublessee or any person who controls the
proposed assignee or sublessee, may then be an occupant of any part of the
Building unless Landlord is unable to provide the proposed assignee or
subtenant with comparable space within the building.
19.8.4 The proposed assignee or sublessee is not presently negotiating
with Landlord to lease space in the Building (or with the Port Authority to
lease space in the Teleport).
19.8.5 The form of the proposed sublease must be reasonably satisfactory
to Landlord and shall comply with the applicable provisions of this Article
XIX.
19.8.6 There may not be more than one Person occupying the Premises, in
the case of an assignment of this Lease or a sublease of all of the Premises,
or occupying the Sublet Portion, in the case of a sublease of part of the
Premises.
19.8.7 In the case of a sublease, Tenant shall not advertise or permit
any broker or agent or other Person to advertise the availability of the
Premises or any portion thereof at an aggregate rent per square foot of
Rentable Area which is less than the current market rent per square foot of
Rentable Area of the Premises that could be obtained if the Premises were
vacant.
19.8.8 The Sublet Portion must be regular in shape and suitable for
normal leasing purposes.
19.8.9 The written consent of the Port Authority to the proposed
sublease or assignment must first be obtained. In this regard, Tenant
acknowledges that under the terms of the Ground Lease the Port Authority's
consent to any subletting or assignment is required and that the Port
Authority has no obligation whatsoever to give such consent.
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SECTION 19.9 MISCELLANEOUS.
--------------
19.9.1 GENERAL TERMS. Any sublease to which Landlord gives its consent
-------------
shall be expressly subject and subordinate to all of the covenants,
agreements, terms, provisions and conditions contained in this Lease and to
the Ground Lease. Tenant shall reimburse Landlord on demand for any
reasonable costs that may be incurred by Landlord in connection with any
proposed assignment or sublease, including, without limitation, the costs of
making investigations as to the acceptability of the proposed assignee or
subtenant, and legal costs incurred in connection with any request for
consent. Any assignment of this Lease to which Landlord gives its consent
shall not be valid or binding on Landlord unless and until the assignee
executes an agreement in form and substance reasonably satisfactory to
Landlord, and expressly enforceable by Landlord, whereby the assignee assumes
and agrees to be bound by all of the provisions of this Lease and to perform
all of the obligations of Tenant hereunder. Tenant's obligation to reimburse
Landlord for costs under this Section shall be limited to an amount equal to
the direct, out-of-pocket costs and expenses actually incurred by Landlord.
Upon request, Landlord shall provide Tenant with copies of all invoices for
which reimbursement is sought and any related documents.
19.9.2 TENANT REMAINS LIABLE. Notwithstanding any sublease to Landlord
---------------------
or any assignment or sublease to any other Person, Tenant will remain fully
liable for the payment of Rents and for the performance of all the other
obligations of Tenant contained in this Lease. Any act or omission of an
assignee or subtenant, or anyone claiming under or through any subtenant, that
violates any of the obligations of this Lease shall be deemed a violation of
this Lease by Tenant.
19.9.3 LANDLORD'S CONSENT REQUIRED. The consent by Landlord and the
---------------------------
Port Authority to any assignment or sublease shall not relieve Tenant or any
Person claiming through or under Tenant of the obligation to obtain the
consent of Landlord and the Port Authority, pursuant to the provisions of
Section 17.6 and this Article XIX, to any future assignment or sublease.
19.9.4 INDEMNIFICATION OF LANDLORD. If Landlord or the Port Authority
---------------------------
declines to give its consent to any proposed assignment or sublease, Tenant
shall indemnify, defend and hold Landlord and the Port Authority harmless
against and from any and all loss, liability, damages, costs and expenses
(including reasonable attorneys' fees) resulting from any claims that may be
made against Landlord or the Port Authority by the proposed assignee or
sublessee, or brokers or other persons claiming a commission or similar
compensation in connection with the proposed assignment or sublease.
19.9.5 GENERAL SUBLEASE PROVISIONS. With respect to each and every
---------------------------
sublease authorized by Landlord under the provisions of this Article XIX, it
is further agreed that:
(i) The term of the sublease must end no later than one day prior to the
last day of the Lease Term.
(ii) No sublease shall be valid, and no subtenant shall take possession
of the Premises or any part thereof, until a fully executed counterpart of
such sublease has been delivered to Landlord.
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(iii) Each sublease shall provide that it is subject and subordinate to
this Lease and the Ground Lease and to all Superior Leases and Superior
Mortgages; that Landlord may enforce the provisions of the sublease,
including collection of rents; that in the event of termination of this Lease
or re-entry or repossession of the Premises by Landlord, Landlord may, at its
option, take over all of the right, title and interest of Tenant, as
sublessor, under such sublease, and such subtenant shall, at Landlord's
option, attorn to Landlord but that nevertheless Landlord shall not: (1) be
liable for any previous act or omission of Tenant under such sublease; (2) be
subject to any defense or offset previously accrued in favor of the subtenant
against Tenant; or (3) be bound by any previous modification of such
sublease made without Landlord's written consent or by any previous prepayment
of more than one (1) month's rent.
19.9.6 MODIFICATION. Landlord shall not be bound by any modification or
------------
amendment to a sublease of the Premises which Landlord has not approved in
writing.
SECTION 19.10 [INTENTIONALLY OMITTED]
SECTION 19.11 ADDITIONAL CHARGES. If Landlord shall give its consent to any
------------------
assignment of this Lease or to any sub-lease, Tenant shall in consideration
therefor, pay to Landlord, as Additional Rent:
(a) in the case of an assignment, an amount equal to the Recapture
Percentage specified in Section 1.1 multiplied by all sums and other
consideration paid to Tenant by the assignee for or by reason of such
assignment (including sums paid for the purchase or rental of part or all of
Tenant's Property to the extent that such sums are intended as consideration
for the assignment of the Lease) less (ii) Tenant Expenses in connection with
such assignment; and
(b) in the case of a sublease, (i) the Recapture Percentage specified in
Section 1.1 multiplied by the amount by which the sublease rental exceeds the
portion of the Rents allocable to the subleased space less (ii) Tenant
Expenses in connection with such sublease. In computing this amount, the
sublease rental shall include all rents, charge and other consideration
payable to Tenant under the terms of the sublease and any collateral
agreements, and also sums paid by the sublessee for the purchase or rental of
all or part of Tenant's Property to the extent that such sums are intended as
sublease rental. The Rents allocable to the subleased space for any period
shall equal the total Rents accruing during such period, multiplied by a
fraction, the numerator of which is the Rentable Area of the subleased space
and the denominator of which is the Rentable Area of the Premises.
Said Additional Rent shall be paid by Tenant to Landlord as and when said
sums, rentals, and other consideration (or any portion thereof) are received
by Tenant; provided that Tenant shall receive a credit toward such Additional
Rent in an amount equal to the net unamortized or undepreciated cost of any of
Tenant's Property that is sold to the assignee or sublessee in connection with
such assignment or sublease, determined on the basis of Tenant's federal
income tax returns, such credit to be prorated over the period during which
such sums, rentals, or other consideration are to be paid by the assignee or
sublessee, in proportion to the amount of such sums, rentals or other
consideration received by Tenant.
For purposes of this Section 19.11, "Tenant Expenses" in connection with
an
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assignment or sublease shall mean all brokerage commissions, legal fees,
takeover expenses and cash contributions or alteration expenses incurred, or
to be incurred, by Tenant in connection with such assignment or sublease.
SECTION 19.12 ACCEPTANCE OF RENT. If this Lease is assigned, whether or not
------------------
in violation of the provisions of this Lease, Landlord may collect Rents from
the assignee. If the Premises or any part thereof are sublet, whether or not
in violation of this Lease, Landlord may, after default by Tenant and
expiration of Tenant's time to cure such default, collect rent from the
sublessee. In either event, Landlord may apply the net amount collected to
payment of Rents, but no such assignment, subletting, or collection shall be
deemed a waiver of any of the provisions of this Article, an acceptance of the
assignee or sublessee as a lessee, or a release of Tenant from the performance
by Tenant of Tenant's obligations under this Lease.
SECTION 19.13 STANDARDS OF LANDLORD'S CONSENT. Landlord and Tenant agree
-------------------------------
that if Tenant desires to assign this Lease or sublet all or any part of the
Premises, and Landlord withholds its consent or conditions its consent and
Tenant believes that Landlord did so unreasonably, Tenant may prosecute an
action for declaratory relief to determine if Landlord unreasonably withheld
or conditioned its consent, but Tenant waives and discharges any claims it may
have against Landlord for damages arising from Landlord's withholding or
conditioning its consent. In any such action, each party shall bear its own
attorneys' fees. Tenant shall indemnify, defend and hold Landlord harmless
from any and all liability, losses, claims, damages, costs, expenses, causes
of action and proceedings involving any third party or parties (including
without limitation Tenant's proposed subtenant or assignee) who claim they
were damaged by Landlord's wrongful withholding or conditioning of Landlord's
consent.
ARTICLE XX
ESTOPPEL CERTIFICATES
---------------------
SECTION 20.1 ESTOPPEL CERTIFICATES. Landlord and Tenant each agree from time
---------------------
to time, within twenty (20) days after a request by the other, to execute and
deliver to the other an estoppel certificate, in form satisfactory to the
other, that: (a) certifies that this Lease is unmodified and in full force
and effect (or if there have been modifications, that the same is in full
force and effect as modified, and stating the modifications); (b) states the
expiration date of the Lease Term and that there are no agreements with either
party to extend or renew the Lease Term or to permit any holding over (or if
there are any such agreements, describes them and specifies the periods of
extension or renewal); (c) certifies the dates through which Rents have been
paid; (d) states whether or not, to the knowledge and belief of Landlord or
Tenant, Tenant or Landlord is in default in performance of any of its
obligations under this Lease, and specifies each default of which Landlord or
Tenant has knowledge; (e) states whether or not, to the knowledge and belief
of Landlord or Tenant, any event has occurred that, with the giving of notice
or passage of time, or both, would constitute a default by Tenant or Landlord
and, if such an event has occurred, specifies each such event; (f) states
whether Tenant is entitled to any credits, offsets, defenses or deductions
against payment of Rents, and, if so, describes them; and (g) states that
Tenant has no rights or options to purchase the Building or the Telehouse
Complex or the Premises. An estoppel certificate issued by Landlord or Tenant
pursuant to this Section 20.1 shall be a
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representation and warranty by such party which may be relied upon by the
other party and by others with whom the other party may be dealing, regardless
of independent investigation. Landlord or Tenant also shall include in any
estoppel certificate such other information concerning this Lease as the other
party may reasonably request. If Landlord or Tenant fails to execute and
deliver an estoppel statement within twenty (20) days after a request by the
other party: (i) the other party's representations concerning the factual
matters covered by an estoppel certificate, as described above, shall be
conclusively presumed to be correct, and (ii) such failure shall be a material
default. Upon request, Tenant shall execute and deliver estoppel certificates
to the Port Authority and any other Superior Lessor and any Superior
Mortgagee.
ARTICLE XXI
[INTENTIONALLY OMITTED]
-----------------------
ARTICLE XXII
BROKER
------
SECTION 22.1 BROKER. Tenant covenants, warrants and represents that no
------
broker was instrumental in bringing about or consummating this Lease and that
Tenant had no conversations or negotiations with any broker concerning the
leasing of the Premises. Tenant agrees to indemnify, defend and hold Landlord
harmless against and from any claims for any brokerage commissions or finder's
fees by persons other than Tenant's Broker, and all costs, expenses and
liabilities incurred in connection with such claims, including attorneys'
fees. Landlord agrees to indemnify, defend and hold Tenant harmless against
and from any claims for any brokerage commissions or finder's fees by persons
claiming under Landlord, and all costs, expenses and liabilities incurred in
connection with such claims, including attorneys' fees.
ARTICLE XXIII
CONDITIONAL LIMITATIONS
-----------------------
SECTION 23.1. CONDITIONAL LIMITATIONS. This Lease and the Lease Term and
-----------------------
estate hereby granted are subject to the limitation that if any of the
following (each a "Conditional Limitation") shall occur, Landlord may, at any
time thereafter, give a written notice to Tenant stating that this Lease and
the Lease Term and estate hereby granted shall automatically expire and
terminate on the date specified in such notice, which date shall be twenty
(20) days after the giving of such notice, and upon the expiration of such
twenty (20) day period this Lease and the Lease Term and estate hereby
granted shall automatically expire and terminate as if the last day of such
twenty (20) day period were the Expiration Date herein definitely fixed, and
Tenant immediately shall quit and surrender the Premises to Landlord, but
Tenant shall remain liable for damages as provided in this Article XXIII.
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23.1.1 [INTENTIONALLY OMITTED]
-----------------------
23.1.2 FAILURE TO PAY RENT. Any failure by Tenant to pay Base Rent or
-------------------
Additional Rent when due and such failure shall continue for ten (10) days
after notice thereof by Landlord to Tenant.
23.1.3 [INTENTIONALLY OMITTED]
-----------------------
23.1.4 FAILURE TO PERFORM UNDER THIS LEASE. The failure by Tenant to
-----------------------------------
observe and perform any other provisions of this Lease to be observed or
performed by Tenant, where such failure continues for thirty (30) days after
written notice thereof by Landlord to Tenant; provided, however, that if the
-------- -------
nature of such default is such that it cannot reasonably be cured within such
thirty (30) day period, Tenant shall not be deemed to be in default if Tenant
within that period commences to cure the default and thereafter diligently
proceeds to completion within a reasonable time; and provided further, that if
--------------------
such failure by Tenant would constitute a default under the Ground Lease,
Tenant shall have five (5) days after receipt of notice of default from the
Port Authority to cure such default (except where cure of not such default
requires more than five (5) days, Tenant shall not be deemed to be in default
if Tenant commences to cure the default within five (5) days and thereafter
diligently proceeds to completion within a reasonable time).
23.1.5 [INTENTIONALLY OMITTED]
-----------------------
23.1.6 ADMISSION OF INABILITY TO PAY DEBTS. Tenant shall be unable to,
-----------------------------------
or shall admit in writing its inability to, pay its debts as they become due.
23.1.7 VOLUNTARY PROCEEDING. Tenant shall commence any case, proceeding
--------------------
or other action (x) seeking relief on its behalf as debtor, or to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement,
adjustment, winding-up, liquidation, dissolution, composition or other relief
with respect to it or its debts under any law of any jurisdiction, domestic or
foreign, relating to bankruptcy, insolvency, reorganization or relief of
debtors, or (y) seeking appointment of a receiver, trustee, custodian or other
similar official for it or for any part of its property.
23.1.8 GENERAL ASSIGNMENT. Tenant shall make a general assignment for
------------------
the benefit of creditors.
23.1.9 INVOLUNTARY PROCEEDING. Any case, proceeding or other action
----------------------
shall be commenced against Tenant (x) seeking to enter an order against Tenant
as debtor or to adjudicate it a bankrupt or insolvent, or seeking
reorganization, arrangement, adjustment, winding-up, liquidation, dissolution,
composition or other relief with respect to it or its debts under any law of
any jurisdiction, domestic or foreign, relating to bankruptcy, insolvency,
reorganization or relief of debtors, or (y) seeking appointment of a receiver,
trustee, custodian or other similar official for it or for all or any part of
its property, which either results in the entry of such an order, adjudication
of bankruptcy or insolvency or such an appointment or the entry of any other
order having a similar effect or remains undismissed for a period of sixty
(60) days.
23.1.10 APPOINTMENT OF TRUSTEE. A trustee, receiver, custodian or other
----------------------
similar
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official is appointed for any substantial part of the assets of Tenant which
appointment is not vacated or effectively stayed within seven (7) business
days.
23.1.11 TENANT'S ACQUIESCENCE. Tenant shall consent to or acquiesce in,
---------------------
any of the acts set forth in Section 23.1.9 or 23.1.10.
23.1.12 [INTENTIONALLY OMITTED]
-----------------------
23.1.13 Waste. The committing of waste on the Premises.
-----
23.1.14 HYPOTHECATION OR ASSIGNMENT. The hypothecation or assignment of
---------------------------
this Lease or subletting of the Premises, or attempts at such actions, in
violation of Article XIX.
23.1.15 SERVICE OF NOTICE. The service by Landlord of a three-day
-----------------
notice under Section 711 of the New York Real Property Actions and Proceedings
Law more than once during each of any two (2) consecutive Lease Years of this
Lease.
23.1.16 RENT DELAYS. Payment of Base Rent or Additional Rent more than
-----------
ten (10) days after notice on two (2) or more occasions during each of any two
(2) consecutive Lease Years of this Lease.
23.1.17 LEGAL PROCESS. If Landlord, on two (2) or more occasions,
-------------
institutes legal proceedings to recover possession of the Premises from Tenant
on account of defaults.
SECTION 23.2 TERMINATION. Upon the occurrence of any Conditional Limitation,
-----------
Landlord shall have the separate and independent right to re-enter the
Premises and to remove Tenant by summary dispossess proceeding or other lawful
process. Notwithstanding anything to the contrary contained herein, if the
expiration and termination of the Lease Term shall be stayed by operation of
law or by order of any court having jurisdiction over any proceeding described
in Section 23.1 or if the trustee appointed in any such proceeding or Tenant
or Tenant as debtor-in-possession shall fail to assume Tenant's obligations
under this Lease within the period prescribed by law for such assumption or
within one hundred twenty (120) days after entry of the order for relief or
within any other period allowed by the court, or if said trustee or Tenant or
Tenant as debtor-in-possession shall fail to provide adequate protection of
Landlord's right, title and interest in and to the Premises; then, following
the lifting of any such stay, this Lease shall automatically expire and
terminate five (5) days after the lifting of such stay.
SECTION 23.3 REMEDIES AND DAMAGES.
--------------------
23.3.1 SURRENDER AND RE-ENTRY. If this Lease shall automatically expire
----------------------
or terminate pursuant to Section 23.1, or if this Lease shall otherwise expire
or be terminated or if Landlord shall re-enter or Tenant be removed from
possession of the Premises:
(i) Tenant shall immediately quit and peacefully surrender the Premises
to Landlord, and Landlord and its agents may immediately, or at any time after
such default or after the date upon which this Lease and the Lease Term shall
expire, re-enter and repossess the Premises, without notice, either by summary
proceedings or otherwise. In the event of any such re-entry, Landlord shall
have the right, with or without terminating this Lease, to remove all persons
and property
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from the Premises; the removed property may be stored in a public warehouse or
elsewhere at the cost of and for the account of Tenant.
(ii) Landlord, at Landlord's option, may relet the Premises from time to
time, either in the name of Landlord or otherwise, to such tenant or tenants,
for such term or terms ending before, on or after the Expiration Date, at such
rental or rentals and upon such other conditions, which may include
concessions and free rent periods, as Landlord, in its sole discretion, may
determine; provided, however, that Landlord shall have no obligation to relet
--------
the Premises and shall in no event be liable for refusal or failure to relet
the Premises or, in the event of any such reletting, for refusal or failure to
collect any rent due upon any such reletting, and no such refusal or failure
shall operate to relieve Tenant of any liability under this Lease or otherwise
affect any such liability. Landlord may make such repairs, replacements,
alterations, additions, improvements, decorations and other physical changes
in and to the Premises as Landlord, in its sole discretion, considers
advisable or necessary in connection with any such reletting or proposed
reletting, without relieving Tenant of any liability under this Lease or
otherwise affecting any such liability.
23.3.2 TENANT'S WAIVER OF NOTICE AND REDEMPTION. Tenant hereby waives
----------------------------------------
the service of any notice of intention to re-enter (which waiver shall not
constitute a waiver of any other notice required to be given to Tenant
pursuant to the terms of this Lease). Tenant does further hereby waive all
rights of Tenant to redeem the Premises, or to re-enter or repossess the
Premises, or to restore the operation of this Lease, after (i) Tenant shall
have been dispossessed by a judgment or by warrant of any court or (ii) any
re-entry by Landlord, or (iii) any expiration or termination of this Lease and
the Lease Term, whether such dispossess, re-entry, expiration or termination
shall be by operation of law or pursuant to the provisions of this Lease. The
terms "re-enter", "re-entry" and "re-entered" as used in this Lease shall not
be deemed to be restricted to their technical legal meanings.
23.3.3 DAMAGES. If this Lease and the Lease Term shall expire as
-------
provided in Section 23.1 or 23.2 hereof or by or under any summary proceeding
or any other proceeding, or if Landlord shall re-enter the Premises, then, in
any of said events:
(i) Tenant shall pay to Landlord all Base Rent and Additional Rent to the
date upon which this Lease and the Lease Term shall have expired or to the
date of re-entry upon the Premises by Landlord, as the case may be;
(ii) Tenant also shall pay to Landlord, as damages, any deficiency (a
"Deficiency") between the Rents for the period that otherwise would have
constituted the unexpired portion of the Lease Term and the net amount, if
any, of rents collected under any reletting effected pursuant to the
provisions of Section 23.3.1(ii) for any part of such period (first deducting
from the rents collected under any such reletting all of Landlord's expenses
in connection with the termination of this Lease, Landlord's re-entry upon the
Premises and such reletting including all repossession costs, brokerage
commissions, attorneys' fees and disbursements, alteration costs an other
expenses of preparing the Premises for such reletting); any such Deficiency
shall be paid in monthly installments by Tenant on the days specified in this
Lease for payment of installments of Base Rent, and Landlord shall be entitled
to recover from Tenant each monthly Deficiency as the same shall arise, and no
suit to collect the amount of the Deficiency for any month shall prejudice
Landlord's right to collect the Deficiency for any subsequent month by a
similar proceeding; and
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(iii) whether or not Landlord shall have collected any monthly Deficiency
as aforesaid, Landlord shall be entitled to recover from Tenant, and Tenant
shall pay to Landlord, within thirty (30) days after demand, in lieu of any
further Deficiency as and for liquidated damages, a sum equal to the amount by
which the Rents for the period that otherwise would have constituted the
unexpired portion of the Lease Term exceeds the then fair market rental value
of the Premises for the same period, both discounted to present value at the
rate of four per cent (4%) per annum less the aggregate amount of Deficiencies
theretofore collected by Landlord for the same period; if, before presentation
of proof of such liquidated damages to any court or tribunal, the Premises, or
any part thereof, shall have been relet by Landlord for the period which
otherwise would have constituted the unexpired portion of the Lease Term, or
any part thereof, the amount of rent reserved upon such reletting shall be
deemed, prima facie, to be the fair market rental value for the part of the
-----------
Premises so relet during the term of the reletting.
23.3.4 RENTS FROM RELETTING. If the Premises shall be relet together
--------------------
with other space in the Building, the rents collected or reserved under any
such reletting and the expenses of any such reletting shall be equitably
apportioned for the purposes of this Section 23.3. Tenant shall in no event
be entitled to any rents collected or payable under any reletting, whether or
not such rents shall exceed the Base Rent reserved in this Lease. Nothing
contained in this Article XXIII shall be deemed to limit or preclude the
recovery by Landlord from Tenant of the maximum amount allowed to be obtained
as damages by applicable law, or of any sums or damages to which Landlord may
be entitled in addition to the damages set forth in this Section 23.3.
23.3.5 MONIES RECEIVED. Any monies received by Landlord from or on
---------------
behalf of Tenant during the pendency of any proceedings between Landlord and
Tenant shall be deemed paid as compensation for the use and occupation of the
Premises, and the acceptance of any such compensation by Landlord shall not be
deemed an acceptance of Rents or a waiver on the part of Landlord of any
rights hereunder.
23.3.6 EQUITABLE REMEDIES. In the event of a breach or threatened
------------------
breach by Tenant of any of the provisions hereof, Landlord shall have the
right of injunction and the right to invoke any remedy allowed at law or in
equity as if re-entry, summary proceedings and other remedies were not herein
provided.
SECTION 23.4 WAIVER OF TRIAL BY JURY; TENANT NOT TO COUNTERCLAIM. Landlord
---------------------------------------------------
and Tenant each waive trial by jury in any action, proceeding or counterclaim
brought by either of them against the other on any matters not relating to
personal injury or property damage but otherwise arising out of or in any way
connected with this Lease, the relationship of Landlord and Tenant or Tenant's
use or occupancy of the Premises. Tenant shall not interpose any counterclaim
in a summary proceeding or in any action based on nonpayment of Rents or on
Tenant's holding over after expiration of the Lease Term or on any matter
relating to the foregoing unless the failure of Tenant to interpose such
counterclaim would result in the forfeiture or waiver of any claim raised
therein.
SECTION 23.5 NO HOLDOVER BY TENANT. Tenant waives any rights under Section
---------------------
2201 of the New York Civil Practice Law and Rules in connection with any
holdover proceedings which Landlord may properly institute against Tenant. If
the Premises shall not be surrendered within thirty (30) days the termination
of this Lease, Tenant hereby indemnifies Landlord against loss, cost, injury,
damage, claim, expense, or liability (including but not limited to attorneys'
fees and
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disbursements) resulting from delay by Tenant in so surrendering the Premises,
including any claims made by any succeeding tenant or prospective tenant
founded upon such delay.
SECTION 23.6 LANDLORD'S RIGHT TO CURE DEFAULTS. Landlord may, but shall not
---------------------------------
be obligated to, cure any default by Tenant under this Lease, at any time
after expiration of any applicable cure period, without notice; and whenever
Landlord so elects, all costs and expenses incurred by Landlord in curing any
such default, including, without limitation, reasonable attorneys' fees and
disbursements, together with interest on the amount of costs and expenses so
incurred at the Interest Rate, shall be paid by Tenant to Landlord within
thirty (30) days after demand, as Additional Rent.
SECTION 23.7. EFFECTS OF WAIVERS OF DEFAULT; NO OTHER WAIVER. No consent or
----------------------------------------------
waiver, express or implied, by Tenant or Landlord to or of any breach of any
obligation of the other party shall be construed as a consent or waiver to or
of any other breach of the same or any other obligation. The failure of
Landlord or Tenant at any time to insist upon the strict performance of any
obligation of the other party under this Lease or to exercise any right or
remedy herein contained, shall not be construed as a waiver or relinquishment
of the performance of such obligation or of the right to exercise any right or
remedy in the future. The following specific provision shall not limit the
generality of the provisions of this Section 23.7. The receipt or acceptance
by Landlord of Rents or the payment by Tenant of Rents with knowledge of a
breach by the other party of any term of this Lease shall not be deemed a
waiver of such breach. No payment by Tenant or receipt by Landlord of an
amount less than the correct Rents shall be deemed to be other than a payment
on account, nor shall any endorsement or statement on any check or any
accompanying letter be deemed to effect or evidence an accord and
satisfaction, and Landlord may accept such check or payment without prejudice
to Landlord's right to recover the balance or pursue any other rights of
Landlord.
SECTION 23.8 ELECTION TO TERMINATE. No re-entry or taking possession of the
---------------------
Premises by Landlord shall be construed as an election to terminate this Lease
unless a written notice of such intention be given to Tenant or unless the
termination thereof be decreed by a court of competent jurisdiction.
SECTION 23.9 REMEDIES NOT EXCLUSIVE. The rights and remedies of Landlord
----------------------
provided in this Lease for a default by Tenant are cumulative and not
exclusive, and the exercise by Landlord of any right or remedy it may have
shall not preclude the concurrent or subsequent exercise of any other right or
remedy it may have pursuant to this Lease, at law or in equity.
SECTION 23.10 PAYMENT OF LANDLORD'S EXPENSES. Any expenses incurred by
------------------------------
Landlord in connection with any performance by it for the account of Tenant,
and all costs and expenses, including reasonable attorneys' fees (whether or
not legal proceedings are instituted), involved in collecting Rents or
enforcing the obligations of Tenant under this Lease, including the cost and
expense of instituting and prosecuting legal proceedings or recovering
possession of the Premises after default by Tenant or upon expiration or
sooner termination of this Lease, shall be due and payable by Tenant, within
thirty (30) days after demand, as Additional Rent.
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ARTICLE XXIV
MISCELLANEOUS
-------------
SECTION 24.1 NO RECORDING OF LEASE. Neither Landlord nor Tenant shall record
---------------------
this Lease or any memorandum thereof.
SECTION 24.2 ENTIRE AGREEMENT. This Lease contains all of the agreements and
----------------
understandings related to the leasing of the Premises and the respective
obligations of Landlord and Tenant in connection therewith. All prior
agreements and understandings between the parties have merged into this Lease,
which alone fully and completely expresses the agreement of the parties.
SECTION 24.3 AMENDMENTS. No agreement shall be effective to amend, change,
----------
modify, waive, release, discharge, terminate or effect an amendment of this
Lease, in whole or in part, unless such agreement is in writing, refers
expressly to this Lease and is signed by Landlord and Tenant. Modifications
to this Lease will not be binding upon the Port Authority or any other
Superior Lessor or Superior Mortgagee who has a right to approve modifications
hereto under its Superior Lease or Superior Mortgage unless approved by the
Port Authority or by the other Superior Lessor or Superior Mortgagee.
SECTION 24.4 SUCCESSORS. Except as otherwise expressly provided herein, the
----------
obligations of this Lease shall bind and benefit the successors and assigns of
the parties hereto; provided, however, that no assignment, sublease or other
-------- -------
transfer in violation of the provisions of Article XIX shall operate to vest
any rights in any putative assignee, sublessee or transferee of Tenant.
SECTION 24.5 FORCE MAJEURE. Tenant and Landlord shall have no liability
-------------
whatsoever to the other on account of the inability of Tenant or Landlord to
fulfill, or delay in fulfilling, any of their respective obligations
(excluding obligations to pay money) under this Lease by reason of any strike,
lockout or other Labor Condition; inability to obtain labor, materials, coal,
oil, or other suitable fuel or reasonable substitutes therefor or the failure
of the supply of any thereof; acts of God, fire or other casualty;
governmental preemption of priorities or other controls in connection with a
public emergency; governmental restrictions or requirements of law; enemy or
hostile governmental action; civil commotion; or any other cause, whether
similar or dissimilar to the above, beyond Tenant's or Landlord's reasonable
control. (The foregoing events are collectively referred to as "Force
Majeure".) If this Lease specifies a time period for performance of an
obligation of Tenant or Landlord, that time period shall be extended by the
period of any delay in Tenant's or Landlord's performance caused by any of the
events of Force Majeure.
SECTION 24.6 POST-TERMINATION OBLIGATIONS. Upon the expiration of the Lease
----------------------------
Term or earlier termination of this Lease, neither party shall have any
further obligation or liability to the other except as otherwise expressly
provided in this Lease and except for such obligations as by their nature or
under the circumstances can only be, or by the provisions of this Lease, may
be, performed after such expiration or earlier termination. However, any
liability for a payment of Rents or indemnity shall survive the expiration of
the Lease Term or earlier termination of this Lease.
SECTION 24.7 CONSTRUCTION ON ADJACENT PREMISES. If any excavation or other
---------------------------------
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construction shall be made on any premises adjoining or above or below the
Building, Tenant shall permit Landlord, the Port Authority or the adjoining
owner, and their respective agents, employees, licensees and contractors to
enter upon the Premises and to shore the walls thereof and to erect
scaffolding and/or protective barricades around the Building (but not so as to
preclude entry thereto) and to do any act or thing necessary for the safety or
preservation of the Building. Tenant's obligations under this Lease shall not
be affected by any such construction or excavation work, shoring-up,
scaffolding or barricading. Landlord shall not be liable in any case for any
inconvenience, disturbance, loss of business or any other annoyance arising
from such construction, excavation, shoring-up, scaffolding or barricades, but
if Landlord is performing such work, Landlord shall use its best efforts so
that the work will cause as little inconvenience, annoyance and disturbance to
Tenant as possible, consistent with accepted construction practice in the
vicinity, so that such work shall be expeditiously completed.
SECTION 24.8 NO REPRESENTATIONS BY LANDLORD. Landlord and Landlord's agents
------------------------------
have made no representations, warranties or promises whatsoever with respect
to the Premises, the Building and the Teleport, except as expressly set forth
herein, and no rights, easements or licenses are acquired by Tenant by
implication or otherwise except as expressly set forth herein. Tenant
represents and warrants that it has thoroughly inspected the Premises and is
fully familiar with the Premises.
SECTION 24.9 LANDLORD'S CONSENT. All references in this Lease to the consent
------------------
or approval of Landlord shall be deemed to mean the written consent or
approval of Landlord, and no consent or approval of Landlord shall be
effective for any purpose unless such consent or approval is in writing.
SECTION 24.10 INTERPRETATION.
--------------
24.10.1 GOVERNING LAW. Irrespective of the place of execution or
-------------
performance, this Lease shall be governed by and construed in accordance with
the laws of the State of New York.
24.10.2 INVALIDITY. If any provision of this Lease or the application
----------
thereof to any Person or circumstance shall, for any reason and to any extent,
be invalid or unenforceable, the remainder of this Lease and the application
of that provision to other Persons or circumstances shall not be affected but
rather shall be enforced to the fullest extent permitted by law.
24.10.3 CAPTIONS. The Table of Contents, captions, headings and titles
--------
of this Lease are solely for convenience of reference and shall not affect its
interpretation.
24.10.4 PRESUMPTIONS. This Lease shall be construed without regard to
------------
any presumption or other rule requiring construction against the party
drafting a document. It shall be construed neither for nor against Landlord or
Tenant, but shall be given a reasonable interpretation in accordance with the
plain meaning of its terms and the intent of the parties.
24.10.5 INDEPENDENT COVENANTS. Each covenant, agreement, obligation or
---------------------
other provision of this Lease on Tenant's part to be performed shall be deemed
and construed as a separate and independent covenant of Tenant, not dependent
on any other provision of this Lease.
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24.10.6 NUMBER AND GENDER. 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 and any other gender as the context may require.
24.10.7 EXHIBITS. All exhibits, schedules and riders appended to this
--------
Lease are incorporated herein and by this reference made a part hereof.
SECTION 24.11 JOINT AND SEVERAL LIABILITY. If, at any time during the Lease
---------------------------
Term, Tenant comprises more than one person, all such persons shall be jointly
and severally liable for payment of Rents and for performance of every
obligation of Tenant under this Lease.
SECTION 24.12 SUBMISSION OF LEASE. The submission of this Lease by Tenant or
-------------------
Landlord or by Landlord to Tenant for review or signature does not constitute
an offer by or to Tenant to lease the Premises or the granting of an option to
do so. This instrument shall have no binding force or effect until its
execution and delivery by both Landlord and Tenant.
SECTION 24.13 NOTICES FROM ONE PARTY TO THE OTHER. Any notice or demand from
-----------------------------------
Landlord to Tenant or from Tenant to Landlord shall be in writing and shall be
deemed duly served if personally delivered, sent by a nationally recognized
courier service, or mailed by registered or certified mail, return receipt
requested, addressed, if to Tenant, at the Premises or such other address as
Tenant shall have last designated by notice in writing to Landlord and, if to
Landlord, to the Address of Landlord or at such other address as Landlord
shall have last designated by notice in writing to Tenant. Notices to the
Port Authority shall be delivered to the Executive Director at ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ or to such other address as the Port
Authority may hereafter designate. Notices shall be deemed received and
served when personally delivered or upon receipt if mailed or sent by a
courier service.
SECTION 24.14 PARTNERSHIP TENANT. If Tenant is a partnership (or is
------------------
comprised of two (2) or more Persons, individually or as partners of a
partnership) or if Tenant's interest in this Lease shall be assigned to a
partnership (or to two (2) or more Persons, individually or as partners of a
partnership) in a manner permitted under Article XIX (any such partnership and
such Persons are referred to as "Partnership Tenant"), the following
provisions shall apply to such Partnership Tenant: (a) the liability of each
of the parties comprising Partnership Tenant shall be joint and several; (b)
each of the parties comprising Partnership Tenant hereby consents in advance
to, and agrees to be bound by (i) any written instrument which may hereafter
be executed by Partnership Tenant or any successor partnership, changing,
modifying, extending or discharging this Lease, in whole or in part, or
surrendering all or any part of the Premises to Landlord, and (ii) any
notices, demands, requests or other communications which may hereafter be
given by Partnership Tenant; (c) any bills, statements, notices, demands,
requests or other communications given or rendered to Partnership Tenant or to
any of such parties shall be binding upon Partnership Tenant and all such
parties; (d) if Partnership Tenant shall admit new partners, all of such new
partners shall, by their admission to Partnership Tenant, be deemed to have
assumed joint and several liability for the performance of all of the
provisions of this Lease on Tenant's part to be observed and performed from
and after the date of their admission to Partnership Tenant; and (e)
Partnership Tenant shall give prompt notice to Landlord of the admission of
any such new partners, and upon demand of Landlord, shall cause each such new
partner to execute and deliver to Landlord an agreement in form satisfactory
to Landlord, wherein each such new partner shall assume joint and several
liability for the performance of all the
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provisions of this Lease on Tenant's part to be observed and performed from
and after the date of their admission to Partnership Tenant, but neither
Landlord's failure to request any such agreement nor the failure of any such
new partner to execute or deliver any such agreement to Landlord shall vitiate
the provisions of clause (d) of this Section 24.14.
SECTION 24.15 PORT AUTHORITY'S IMMUNITY. No immunity or exemption (actual,
-------------------------
alleged or imputed) of the Port Authority from any law or other requirement
shall excuse compliance, or be grounds for noncompliance, therewith by Tenant.
SECTION 24.16 NO DISCRIMINATION. Tenant shall treat all employees and
-----------------
applicants for employment at the Premises without unlawful discrimination as
to race, creed, color, national origin, sex, age, handicap, marital status,
sexual orientation or affectional preference in all employment divisions,
including but not limited to recruitment, hiring, compensation, training and
apprenticeship, promotion, upgrading, demotion, downgrading, transfer, lay-
off, and termination, and all other terms and conditions of employment except
as provided by law, and shall state in all solicitations for employment at the
Premises that all qualified applicants will receive consideration for
employment without regard to race, color, religion, national origin, sex,
sexual orientation or affectional preference.
IN WITNESS WHEREOF, Landlord and Tenant have hereunto executed this
Lease as of the day and year first above written.
LANDLORD: TELEHOUSE INTERNATIONAL CORPORATION
of America, a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
__________________________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
TENANT: ▇▇▇▇▇▇▇▇.▇▇▇, a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
__________________________
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Director of Technology
Attachments:
EXHIBIT A Floor Plans
EXHIBIT B Special Site Fitout
EXHIBIT C TELEHOUSE Tenant Cleaning Specifications
EXHIBIT D Rules and Regulations
EXHIBIT E Excessive Electricity
EXHIBIT F Appurtenant Facilities
EXHIBIT Z Consent Agreement
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EXHIBIT "A"
----------
FLOOR PLANS
-----------
[Floor Plan]
SITE E - ▇▇▇▇▇▇▇▇.▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇
▇/▇▇
▇-▇
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EXHIBIT "A"
----------
FLOOR PLANS
-----------
[Floor Plan]
▇▇▇▇▇▇▇▇.▇▇▇
SITE E
TELEHOUSE CENTER 2,895 USF
A-2
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EXHIBIT "B"
----------
SPECIAL SITE FITOUT
-------------------
In connection with the Lease to which this Exhibit B is attached,
Landlord has performed certain work ("SPECIAL SITE FITOUT") in the Premises as
hereinafter set forth. Capitalized terms used in this Exhibit without definition
shall have the respective meanings ascribed to them in the Lease.
1. Description of Work. Landlord has provided the following
-------------------
modifications to the standard site buildout as described in Section 2.3:
I. Chairs and desks in support room (as is) with critical power and power
strips.
II. Power distribution: two 20 amp circuits each with one L5-20R IG
receptacle for 32 cabinet positions.
III. Subfloor panels for telecommunications cab ▇▇▇▇
▇▇. Floor tile cutouts for 32 cabinets.
V. Open relay rack with four shelves.
2. Tenant's Cost. Tenant shall be responsible for payment of the actual
-------------
cost of the Special Fitout work, including both subcontracted work and work
performed by Landlord's own staff at a one time cost of $22,875.00 plus
applicable sales tax.
3. Payments. All amounts payable by Tenant to Landlord pursuant to this
--------
Exhibit B shall be paid by Tenant upon completion of all Special Fitout Work and
within thirty (30) days after Landlord has rendered an invoice therefor to
Tenant.
B-1
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EXHIBIT "C"
----------
TELEHOUSE TENANT CLEANING SPECIFICATIONS
----------------------------------------
There Shall Be No Cleaning In the Computer Room. The Following Cleaning
Specifications Apply Only To The Office Space In the Premises And To The Common
Areas.
A. General Cleaning - 5 Nights Per Week - Monday through Friday Inclusive:
----------------------------------------------------------------------
1. Basic Service -- Common Areas
-----------------------------
a. Empty and damp wipe all ashtrays and smoking urns.
b. Empty and dust wipe all trash receptacles. Replace liner three
times per week.
c. Dust all areas up to six feet in height. Including window sills,
walls, ledges, chairs, desks, tables, baseboard, file cabinets,
radiators, pictures and all office furniture.
d. Damp wipe all glass top desks and tables.
e. Damp wipe spillage on all furniture, including lounge and
cafeteria areas.
f. Sweep with treated cloths all composition tile flooring and
remove any spillage.
g. Vacuum or wash rubber mats as necessary
h. Vacuum all carpeted areas and remove spots (when possible).
i. Remove fingermarks where possible from painted wall partitions,
doors and glass partitions.
j. Clean interior surfaces of elevator cabs and wash composition
tile flooring, or vacuum carpet.
k. Wash clean water fountains and coolers, emptying waste water as
necessary.
l. Remove fingermarks and smudges from entrance doors and partition
glass surfaces.
m. Sweep public stairwells and dust wipe rails.
2. Basic Services -- Office Areas
------------------------------
a. Vacuum office area.
b. Empty and dust wipe all desk waste receptacles. Replace
liners three times per week.
C-1
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c. Empty and remove all computer waste paper from
receptacles.
d. Damp mop raised tile floor (not wet).
e. Remove scuff marks and spillage from raised tile
flooring walls and columns.
f. Remove finger marks and smudges from partition glass
surfaces.
g. Dust wipe with treated cloths all manner of office
furniture, i.e. desks, chairs, cabinets, credenzas, etc.
3. Basic Service -- Lavatories
---------------------------
a. Wash and dry all bowls, seats, urinals, washbasins and
mirrors.
b. Empty paper towel and sanitary napkin disposal receptacles.
c. Damp wipe exterior of waste cans and dispensing units.
Replace plastic liners.
d. Sweep and wash floors with disinfectant.
e. Dust all ▇▇▇▇▇, partitions and ledges.
f. Insert toilet tissue, toweling and soap in dispensers.
B. Common Area Cleaning Service -- Three Nights Per Week.
-----------------------------------------------------
a. Clean all food equipment in cafeteria, beverage machines,
etc.
C. Common Area Cleaning Service -- One Night Per Week
--------------------------------------------------
a. Clean passenger elevator saddles.
b. Clean interior partition glass.
c. Wash public stairs.
D. Common Area Cleaning Service -- Twice a Month
---------------------------------------------
a. Replace sand in smoking urns.
E. Common Area Cleaning Service -- Monthly
---------------------------------------
a. Wash booth partitions in lavatories.
b. Wash tile walls in lavatories.
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c. Wash interior of waste cans and sanitary
disposal containers in lavatories.
d. Clean freight elevator saddles.
F. Common Area Cleaning Service -- Quarterly
-----------------------------------------
a. High dust all walls, ledges, pictures and all areas not
reached in normal nightly cleaning.
G. Cleaning Service -- Semi-Annually
---------------------------------
a. Dust venetian blinds.
H. Cleaning Service -- Annually
----------------------------
a. Bonnet shampoo all carpets in office areas.
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EXHIBIT "D"
----------
RULES AND REGULATIONS
---------------------
1. The sidewalks, areas, entrances, vestibules, passages, corridors,
halls, elevators and stairways shall not be encumbered nor obstructed by any of
the tenants, their agents, clerks, servants or visitors, or be used by them for
any other purpose than for ingress and egress to and from their respective
premises. Landlord reserves the right to restrict and regulate the use of
aforementioned public areas of the Building by the tenants, their employees,
guests, contractors and customers and by persons making deliveries to tenants,
including but not limited to the right to allocate certain elevators for
delivery service, and the right to designate which building entrances shall be
used by persons making deliveries in the Building.
2. The doors, skylights, and windows that reflect or admit light into
passageways or into any place in the Building shall not be covered or obstructed
by any tenant.
3. The water-closets, wash-closets, urinals and other water apparatus
shall not be used for any purposes other than those for which they were
constructed and no sweepings, rubbish, rags, ashes, chemicals, refuse from
electric batteries, or other substances shall be thrown therein. No tenant shall
lay linoleum or other similar floor covering so that the same shall come in
direct contact with the floor covering of its premises, and if linoleum or other
similar floor covering is desired to be used, an interlining of builder's
deadening felt shall be first affixed to the floor by a paste, or other
material, which may easily be removed with water, the use of cement or other
similar adhesive material being expressly prohibited.
4. No tenant shall ▇▇▇▇, paint, drill into, drive nails into, or in
any way mutilate or deface any walls, ceilings, partitions, floors, wood, stone
or iron work of the Building.
5. Each tenant may display one company sign on the exterior door of
its premises. No other display may be made on any windows or doors or on any
other part of the outside or the inside of the Building, without the prior
consent in writing of the Port Authority and Landlord or its agents. Landlord
will name painters who must be employed for all sign painting and other
painting, at the expense of Tenant.
6. No tenant shall do anything or permit anything to be done, in its
premises, or bring or keep anything therein, that will in any way obstruct or
interfere with the rights of other tenants, or in any way injure or annoy them,
or those having business with them. Tenants, their agents, clerks, servants or
visitors, shall not make or cause any improper noises in the Building, or
interfere in any way with other tenants, or those having business with them.
7. No freight, furniture, or bulky matter of any description will be
received into the Building, or carried up or down, except during hours and in
the manner designated by Landlord, which may involve overtime work for
Landlord's employees. Tenants shall reimburse Landlord for extra costs incurred
by Landlord including but not limited to the cost of such overtime work. The
moving of safes shall occur at such times as Landlord shall designate upon
previous notice to Landlord or Landlord's agent; and the persons employed to
move the safes in and out of the Building must be acceptable to Landlord.
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8. Tenants shall not install any locks or bolts on any doors nor make
any changes in existing locks. Each tenant must, upon the termination of the
tenancy, restore to Landlord all the keys of offices, rooms and toilet-rooms
which shall have been furnished the tenant or which the tenant shall have had
made and in the event of loss of any keys so furnished shall pay Landlord
therefor.
9. Nothing shall be swept or thrown by the tenants or by their agents,
clerks, servants or visitors into the corridors, halls, stairways, elevators, or
light shafts, or upon the skylights of the Building, or into or upon any heating
or ventilating registers, or plumbing apparatus in the Building, or upon
adjoining buildings or upon the street. No awnings or other projections shall be
attached to the outside walls of the Building.
10. No animals or birds shall be kept in or about the premises.
11. Tenants shall not bring into the Building or keep to use in the
Building any gasoline, kerosene, camphene, burning fluid, or other inflammable,
combustible or explosive fluid, chemical or substance.
12. No tenant shall cause or permit any odors of cooking or other
processes or any unusual or objectionable odors to emanate from the premises. No
tenant shall install or permit the installation or use of any machine dispensing
goods for sale, including without limitation foods, beverages, cigarettes or
cigars; or permit the delivery of any food or beverage to the premises. No food
or beverages shall be carried in the public halls and elevators of the Building
except in closed containers.
13. Tenants shall not obtain any towel supply service or ice service
except from Persons approved by Landlord, nor obtain drinking water for delivery
on the premises from any source. Canvassing, peddling and soliciting are
prohibited in the Building and each tenant shall cooperate to prevent the same.
14. Telegraph, telephone and other wires and instruments shall not be
introduced by Tenant without previous notice to Landlord and with its reasonable
approval.
15. Landlord reserves the right to exclude from the Building between
the hours of 6:00 o'clock p.m. and 8:00 o'clock a.m. on weekdays, between the
hours of 1:00 o'clock p.m. and 8:00 o'clock a.m. on Saturdays and at all hours
on Sundays and legal holidays all Persons who do not present a pass to the
Building signed by Landlord or Landlord's agent. Landlord or its agent will
furnish passes to Persons for whom any tenant requests same in writing. Each
tenant shall be responsible for all Persons for whom he requests such pass and
shall be liable to Landlord for all acts of such Persons. Landlord may require
all such Persons to sign a register on entering and leaving the Building.
16. Landlord shall not be responsible to any tenant for the non-
observance or violation of these rules and regulations by any other tenant.
17. Landlord may from time to time adopt additional systems and
procedures to improve the security or safety of the Building, any persons
occupying, using or entering the same, or any equipment, finishings or contents
thereof, and Tenant shall comply with Landlord's reasonable requirements
relative thereto.
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18. Tenant shall conduct all aspects of its operations so as to
preserve labor harmony and to insure that the security and operations of the
Building shall not be disrupted.
19. No tenant shall use the passenger elevators for the hauling and
removal of materials or debris and same shall be done only after business hours
and only via the Building freight elevator.
20. Landlord reserves the right to rescind, alter, waive or add, as to
one or more or all tenants, any rule or regulation at any time prescribed for
the Building when, in the judgment of Landlord, Landlord deems it necessary or
desirable for the reputation, safety, character, security, care, appearance or
interests of the Building, or the preservation of good order therein, or the
operation or maintenance of the Building or the equipment thereof, or the
comfort of tenants or others in the Building. No rescission, alteration, waiver
or addition of any rule or regulation in respect of one tenant shall operate as
a rescission, alteration or waiver in respect of any other tenant.
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EXHIBIT "E"
----------
EXCESSIVE ELECTRICITY
---------------------
The following is the charging schedule for consumption of electrical power in
excess of standard consumption which is 40 Volt-Amps per square foot of Useable
Area. For consumption over 100 VA/usf, the same method of calculation for the
lesser consumption will be applied.
VA/usf $/YEAR/RENTABLE SQUARE FEET
------ ---------------------------
0- 40 0.00
41-45 5.00
46-50 10.00
51-55 15.00
56-60 20.00
61-70 25.00
71-80 35.00
81-90 45.00
91-100 55.00
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EXHIBIT "F"
----------
APPURTENANT FACILITIES
----------------------
Tenant has the benefit of using, in addition to the Premises, the following
facilities (the "Appurtenant Facilities"), subject to payment of Landlord's
standard reasonable charge for such use, if any.
- Guest receiving room
- Conference room
- Lounge
- Food/drink vending area
- Private rest facility with bed
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EXHIBIT "Z"
----------
CONSENT AGREEMENT
-----------------
Port Authority Lease No. TP-004
(said Lease being dated as of August 9, 1988)
THIS AGREEMENT, made as of April 12, 1993 by and among THE PORT
AUTHORITY OF NEW YORK AND NEW JERSEY (hereinafter called "the Port Authority"),
a body of corporate and politic, created by Compact between the States of New
Jersey and New York, with the consent of the Congress of the United States of
America and having an office at One World Trade Center, in the Borough of
Manhattan, City, County and State of New York, and TELEHOUSE International
Corporation of America (hereinafter called "the Lessee"), and ▇▇▇▇▇▇▇▇.▇▇▇
(hereinafter called "the Space Lessee), whose representative is ▇▇▇▇▇ ▇▇▇▇▇▇▇.
WITNESSETH, that:
WHEREAS, the Port Authority and the Lessee have heretofore
entered into an agreement dated August 9, 1988 (which agreement, as the same has
been or may hereafter be supplemented and amended, is hereinafter called "the
Main Lease" covering the construction and operation of an office building or
buildings at the Teleport (located in a portion of the Staten Island Industrial
Park leased by the City of New York to the Port Authority and hereinafter called
"the Facility"); and
WHEREAS, pursuant to and in accordance with the terms of the
Main Lease, the Lessee proposes as of the effective date hereof to enter into a
lease with the Space Lessee dated September 1, 1998 a copy of which is attached
hereto, made a part hereof and hereafter called "the Space Lease", subject to
the consent of the Port Authority and the execution of a Consent Agreement by
and among the Lessee, the Space Lessee and the Port Authority;
NOW, THEREFORE, for and in consideration of the covenants and
mutual agreements herein contained, the Port Authority, the Lessee and the Space
Lessee hereby agree effective as of September 1, 1998, as follows:
1. On the terms and conditions hereinafter set forth, the Port
Authority consents to the Space Lease.
2. The Space Lease shall terminate, without notice to the Space
Lessee, on the day preceding the date of expiration or earlier termination of
the Main Lease, or on such earlier date as the Lessee and the Space Lessee may
agree upon. The Space Lessee shall quit the space covered by the Space Lease and
remove its property for which it is responsible therefrom on or before the
termination of the Space Lease.
3. Neither this Consent Agreement, or anything contained herein nor
the consent granted hereunder shall constitute or be deemed to constitute a
consent to nor shall they create an implication that there has been consent to
any enlargement or change in the rights, powers and privileges granted to the
Lessee under the Main Lease, nor consent to the granting of any rights or
privileges to the Space Lessee as may be provided by the Space Lease if not
granted to the Lessee under the Main Lease. The Space Lease is an agreement
between the Lessee and the Space Lessee with respect to the various matters set
forth
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therein. Neither this Consent nor anything contained herein nor the consent
granted hereunder shall constitute an agreement between the Port Authority and
the Lessee that the provisions of the Space Lease shall apply and pertain as
between the Lessee and the Port Authority, it being understood that the terms,
conditions and agreements of the Main Lease shall, in all respects, be
controlling and determinative. The specific mention of or reference to the Port
Authority in any part of the Space Lease, including without limitation thereto,
any mention of any consent or approval of the Port Authority now or hereafter to
be obtained, shall not be or be deemed to create an inference that the Port
Authority has granted its consent or approval thereto under this Consent
Agreement or shall thereafter grant its consent or approval thereto or that the
Port Authority's discretion pursuant to the Main Lease as to any such consents
or approvals shall in any way be affected or impaired. The lack of any specific
reference in any provisions of the Space Lease to Port Authority approval or
consent shall not be deemed to imply that no such approval or consent is
required and the Main Lease shall, in all respects, be controlling.
No provision of the Space Lease, including, but not limited to,
those imposing obligations on the Space Lessee with respect to laws, rules,
regulations, taxes, assessments and liens shall be construed as a submission or
admission by the Port Authority that the same could or does lawfully apply to
the Port Authority, nor shall the existence of any provision of the Space Lease
covering actions which shall or may be undertaken by the Space Lessee or the
Lessee including, but not limited to, construction on the space covered by the
Space Lease, be deemed to imply or infer that Port Authority consent or approval
thereto pursuant to the Main Lease will be given or that Port Authority
discretion with respect thereto will in any way be affected or impaired.
4. The Space Lessee, in its operations under or in connection
with the Space Lease and in its use of the space covered by the Space Lease,
shall be subject to the applicable terms, provisions, covenants and conditions
of the Main Lease. Without in any way affecting the obligations of the Lessee
under the Main Lease and under this Consent Agreement, all acts and omissions of
the Space Lessee shall be deemed acts and omissions of the Lessee under the Main
Lease, but notwithstanding the foregoing, the Lessee shall not be or be deemed
to be in default of the Main Lease to the extent that any of the foregoing shall
constitute a breach thereof if, except for causes beyond the control of the
Lessee, it shall have commenced to remedy said default within twenty (20) days
after receipt of notice thereof from the Port Authority and continues diligently
to pursue such remedy.
5. The Space Lease shall not be changed, modified, discharged
or extended except by written instrument duly executed by the parties thereto
and only with the express written consent of the Port Authority. Without
limiting the generality of the foregoing, the Space Lessee shall use the space
covered by the Space Lease for the following purpose and for no other purpose or
purposes whatsoever: Data processing and data, video and voice communications in
connection with Space Lessee's Business, office space and incidental and usual
activities compatible therewith and for no other purpose whatsoever.
6. If the Lessee shall at any time be in default of its
obligations under the Main Lease to make payments to the Port Authority, or if
there shall occur at any time an event involving insolvency, bankruptcy,
arrangement or reorganization of the Lessee which under the terms of the Main
Lease would constitute an event the occurrence of which grants the Port
Authority the right to terminate the Main Lease, and provided the same has not
been cured within the time granted therefor, if any, under the Main Lease, the
Space Lessee on demand of the Port Authority shall pay directly to the Port
Authority any fee or other amount due to the Lessee. No such payment shall
relieve the Lessee from any obligations under the Main Lease or under this
Consent Agreement but all such payments shall be credited against the
obligations of the Lessee and of the Space Lessee for each payment or part
thereof.
7. The granting of the consent hereunder by the Port Authority
shall not be or be deemed to operate as a waiver of consent to any subsequent
agreement with respect to the use or occupancy of space at the Facility (by the
Lessee or by the Space Lessee) or to any assignment of the Main Lease or the
Space Lease
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or of any rights under either of them, whether in whole or in part.
8. In the event of any substantial default by the Space Lessee
under any of the provisions of this Consent Agreement and said default has not
been cured within thirty (30)days after the Port Authority has served a notice
of such default upon the Lessee and the Space Lessee, the Port Authority shall
have the right to revoke the consent granted hereunder upon thirty (30) days'
written notice to the Lessee and the Space Lessee, but no such revocation shall
be deemed to affect the Main Lease and the continuance thereof, it being
understood, moreover, that the foregoing shall not be deemed to affect or limit
any rights of the Port Authority under the Main Lease. In the event of the
revocation of the consent hereunder as hereinabove provided, the Lessee shall
immediately terminate the Space Lease.
9. Reference herein to the Space Lessee shall mean and include
the Space Lessee, its officers, agents, employees and also others using the
space covered by the Space Lease or on the Facility with the consent of the
Space Lessee.
10. Neither the Commissioners of the Port Authority nor any of
them, nor any officer, agent or employee thereof shall be held personally liable
to the Lessee or to the Space Lessee under any term or provision of this Consent
Agreement or because of its execution or because of any breach or alleged breach
hereof.
IN WITNESS WHEREOF, the Port Authority, the Lessee and the
Space Lessee have executed these presents.
THE PORT AUTHORITY OF NEW YORK
AND NEW JERSEY
ATTEST: By:
------------------------- --------------------------
Name:
Title:
TELEHOUSE INTERNATIONAL CORP.
OF AMERICA
ATTEST: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------------- --------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: President
▇▇▇▇▇▇▇▇.▇▇▇
ATTEST: By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
------------------------- --------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Dir. of Technology
▇-▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
ss.
COUNTY OF RICHMOND
On the 2nd day of September, 1998 before me personally came ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ to
me known, who, being by me duly sworn, did depose and say that he resides at
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇; that he is the President of
TELEHOUSE International Corporation of America, one of the corporations
described in and which executed the foregoing instrument; and that he signed his
name thereto by order of the Board of Directors of the said corporation.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------
Notary Public
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
NOTARY PUBLIC, STATE OF NEW YORK
NO. 01SH6010376
QUALIFIED IN RICHMOND COUNTY
COMMISSION EXPIRES JULY 19, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇.
▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
▇▇ the 1st day of Sept., 1998 before me personally came ▇▇▇▇▇ ▇▇▇▇▇▇▇,
to me known, who, being by me duly sworn, did depose and say that he resides at
▇▇▇ ▇. ▇▇ ▇▇., #▇▇ ▇▇▇ ▇▇▇▇, ▇.▇. ▇▇▇▇▇; that he is the Director of Technology
of ▇▇▇▇▇▇▇▇.▇▇▇, one of the corporations described in and which executed the
foregoing instrument; and that he signed his name thereto by order of the Board
of Directors of the said corporation.
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------
Notary Public
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
NOTARY PUBLIC, STATE OF NEW YORK
NO. ▇▇-▇▇▇▇▇▇▇
QUALIFIED IN NEW YORK COUNTY
COMMISSION EXPIRES AUGUST 2, ▇▇▇▇
▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇
)
) ss.:
COUNTY OF NEW YORK
On the __ day of __________, 1993 before me personally came __________,
to me known, who, being by me duly sworn, did depose and say that he resides at
___________________________; that he is the __________________ of the Port
Authority of New York and New Jersey, one of the corporations described in and
which executed the foregoing instrument; that he knows the seal of said
corporation; that it was so affixed by order of the Board of Commissioners of
said corporation; and that he signed his name thereto by like order.
________________________
Notary Public