EXHIBIT 10.20
Lease between:
▇▇▇▇▇ Wall Street, L.L.C.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
and
R.E. ▇▇▇▇▇▇▇▇, Inc.
d.b.a. Colo Solutions
▇.▇. ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
COMMERCIAL LEASE
1. PARTIES:
▇▇▇▇▇ WALL STREET L.L.C. a New Hampshire Limited Liability Company with
a place of business at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇,
LESSOR, which expression shall include its heirs, successors, and
assigns where the context so admits, does hereby lease to R.E.
▇▇▇▇▇▇▇▇, Inc. d.b.a. Colo Solutions, a Florida corporation with a
principal place of business at ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, LESSEE, which
expression shall include its successors, executors, administrators, and
assigns where the context so admits, and the LESSEE hereby leases the
following described premises:
2. LEASED PREMISES:
Approximately Two Thousand Seven hundred and Thirty-nine (2,739)
rentable square feet +/- located on the ground floor of the building
known as One Wall St. in Manchester New Hampshire, and as shown on the
attached Exhibit A., together with the right to use in common, with
others entitled thereto, the hallways, stairways, and elevators,
necessary for access to said leased premises, and lavatories nearest
thereto.
"Rentable space" shall mean the measured area occupied by the LESSEE
plus a Seventeen point five (17.5%) percent common factor.
Lessor and Lessee acknowledge that the exact area of the Leased
Premises will not be determined until final layout and completion of
fit up work provided for below and agree to execute an Addendum in
substantially the form attached hereto upon completion of the fit-up
work. The area of the Leased Premises shall be measured from the
interior surface of the exterior windows and the center line of
demising partitions.
3. TERM:
The term of this lease shall be for five years, commencing on the
Commencement Date and ending on February 29, 2006.
4. RENT:
A. BASE RENT: The LESSEE shall pay to the LESSOR rent, monthly,
on the first day of each month, at the annual rate per square
foot of rentable space shown below:
Year Rate/SF Annual Rate Monthly Rate
---- ------- ----------- ------------
1 $15.00 $41,085.00 $3,423.75
Base Rent shall increase at a rate of 3% per annum and adjusted at the
anniversary of each lease year for the initial term of the lease.
B. TAX ESCALATION: If any tax year commencing with the fiscal
year 2002, the real estate taxes on the land and buildings, of
which the leased premises are a part, are in excess of the
amount of the real estate taxes thereon for the fiscal year
2001, (hereinafter called the "Base Year"), LESSEE will pay to
LESSOR as additional rent hereunder, when and as designated by
notice in writing by LESSOR, 4.6% of such excess that may
occur in each year of the term of this lease or any extension
or renewal thereof and proportionately for any part of a
fiscal year. If the LESSOR obtains an abatement of any such
excess real estate tax, a proportionate share of such
abatement, less the reasonable fees and costs incurred in
obtaining the same, if any, shall be refunded to the LESSEE.
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C. OPERATING COST ESCALATION: The LESSEE shall pay to the LESSOR
as additional rent hereunder when and as designated by notice
in writing by LESSOR, 4.6% per cent of any increase in
operating expenses over those incurred during the calendar
year 2001. Operating expenses are defined for the purposes of
this agreement include cleaning, trash removal services,
repair and maintenance, heating and cooling, electrical
services for common areas, snow and ice removal, casualty
insurance, and management services calculated at 5% of total
rent. This increase shall be prorated should this lease be in
effect with respect to only a portion of any calendar year.
D. ELECTRICAL USES ON PREMISES: See also UTILITIES, below.
5. SECURITY DEPOSIT:
Upon the execution of this lease, the LESSEE shall pay to the LESSOR an
amount equal to the first month's rent, which shall be held as a
security for the LESSEE's performance as herein provided and refunded
to the LESSEE at the end of this lease subject to the LESSEE's
satisfactorily compliance with the conditions hereof.
6. UTILITIES:
The LESSEE shall pay, as they become due, all bills for electricity
that are furnished to the leased premises and separately metered.
Lessee shall separately meter the premises at Lessee's sole cost. The
LESSOR agrees to provide all other utility service and to furnish
reasonably hot and cold water and reasonable heat and air conditioning
to the leased premises, the hallways, stairways, elevators, and
lavatories during normal business hours on regular business days of the
heating and air conditioning seasons of each year, to furnish elevator
service and to light passageways and stairways during business hours,
and to furnish such cleaning service as is customary in similar
buildings in said city or town, all subject to interruption due to any
accident, to the making of repairs, alterations, or improvements, to
labor difficulties, to trouble in obtaining fuel, electricity, service,
or supplies from the sources from which they are usually obtained for
said building, or to any cause beyond the LESSOR's control.
LESSOR shall have no obligation to provide utilities or equipment other
than the utilities and equipment within the premises as of the
commencement date of this lease. In the event LESSEE requires
additional utilities or equipment, the installation and maintenance
thereof shall be the LESSEE's sole obligation, provided that such
installation shall be subject to the written consent of the LESSOR.
LESSOR's consent shall not be unreasonably withheld or delayed.
LESSOR's obligation to pay costs of HVAC is limited to power required
to serve office uses during the building hours of operation which is
Monday through Friday 7:00 a.m. to 6:00 p.m., Saturday 9:00 AM to 12:00
noon. This power shall be separately metered or determined. After hours
HVAC will be charged to LESSEE based upon actual usage and costs to
LESSOR of providing same. This implies no limit in use of the Building
by the LESSEE.
7. USE OF LEASED PREMISES:
The LESSEE shall use the leased premises only for the purpose of
co-location of telecommunications and internet related equipment
commonly referred to as a "switch area".
COMPLIANCE WITH LAWS: The LESSEE acknowledges that no trade or
occupation shall be conducted in the leased premises or use made
thereof which will be unlawful, improper, noisy or offensive, or
contrary to any law or any municipal by-law or ordinance in force in
the city or town in which the premises are situated.
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9. FIRE INSURANCE: The LESSEE shall not permit any use of the leased
premises which will make voidable any insurance on the property of
which the leased premises are a part, or on the contents of said
property or which shall be contrary to any law or regulation from time
to time established by the New England Fire Insurance Rating
Association, or any similar body succeeding to its powers. The LESSEE
shall on demand reimburse the LESSOR, and all other tenants, all extra
insurance premiums caused by the LESSEE's use of the premises.
10. MAINTENANCE:
A. LESSEE'S OBLIGATIONS: The LESSEE agrees to maintain the leased
premises in good condition, damage by fire and other casualty
only excepted, and whenever necessary, to replace plate glass
and other glass therein, acknowledging upon taking possession
that the leased premises are then in good order and the glass
whole. The LESSEE shall not permit the leased premises to be
overloaded, damaged, stripped or defaced, nor suffer any
waste. LESSEE shall obtain written consent of LESSOR before
erecting any sign on the premises.
▇. ▇▇▇▇▇▇'▇ OBLIGATIONS: The LESSOR agrees to maintain the
structure and interior of the building of which the leased
premises are a part in the same condition as it is at the
commencement of the term or as it may be put in during the
term of this lease, reasonable wear and tear, damage by fire
and other casualty only excepted, unless such maintenance is
required because of the LESSEE or those for whose conduct the
LESSEE is legally responsible.
11. ALTERATIONS - ADDITIONS:
The LESSEE shall not make structural alterations or additions to the
leased premises, but may make non-structural alterations provided the
LESSOR consents thereto in writing, which consent shall not be
unreasonably withheld or delayed. All such allowed alterations shall be
at LESSEE's expense and shall be in quality at least equal to the
present construction. LESSEE shall not permit any mechanics' liens, or
similar liens, to remain upon the leased premises for labor and
material furnished to LESSEE or claimed to have been furnished to
LESSEE in connection with work of any character performed or claimed to
have been performed at the direction of LESSEE and shall cause any such
lien to be released of record forthwith without cost to LESSOR. Any
alterations or improvements made by the LESSEE shall become the
property of the LESSOR at the termination of occupancy as provided
herein. However, the LESSEE shall retain ownership of generator, and
related electrical equipment, D.C. power plant, UPSs, rack cabinets,
access systems, and Lessee installed cooling systems and special fire
suppression equipment, provided that upon surrender of the Premises,
LESSEE removes these items and repairs any damage to the premises or
building occasioned by their removal.
12. ASSIGNMENT - SUBLEASING:
The LESSEE shall not assign or sublet the whole or any part of the
leased premises without LESSOR'S prior written consent which shall not
be unreasonably withheld, conditioned or delayed. Notwithstanding such
consent, LESSEE shall remain liable to LESSOR for the payment of all
rent and for the full performance of the covenants and conditions of
this lease. However, LESSEE shall have the right to sublease or assign
any portion of the premises to any related entity, parent company,
subsidiary, affiliate or to any successor-in-interest or entity
acquiring fifty-one percent (51%) or more or its stock or assets
without the LESSOR'S consent. However, LESSEE shall remain liable to
LESSOR for the payment of all rent and for the full performance of the
covenants and conditions of this Lease unless the successor in interest
is satisfactory to LESSOR as of comparable financial responsibility.
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13. SUBORDINATION:
This lease shall be subject and subordinate to any and all mortgages,
deeds of trust and other instruments in the nature of a mortgage, now
or at any time hereafter, a lien or liens on the property of which the
leased premises are a part and the LESSEE shall, when requested,
promptly execute and deliver such written instruments as shall be
necessary to show the subordination of this lease to said mortgages,
deeds of trust or other such instruments in the nature of a mortgage.
14. LESSOR'S ACCESS:
The LESSOR or agents of the LESSOR may, at reasonable times, enter to
view the leased premises and may remove placards and signs not approved
and affixed as herein provided, and make repairs and alterations as
LESSOR should elect to do and may show the leased premises to others,
and at any time within three (3) months before the expiration of the
term, may affix to any suitable part of the leased premises a notice
for letting or selling the leased premises or property of which the
leased premises are a part and keep the same so affixed without
hindrance or molestation.
15. INDEMNIFICATION AND LIABILITY:
The LESSEE shall save the LESSOR harmless from all loss and damage
occasioned by the use or escape of water or by the bursting of pipes,
as well as from any claim or damage resulting from neglect in not
removing snow and ice from the roof of the building or from the
sidewalks bordering upon the premises so leased, or by any nuisance
made or suffered on the leased premises, unless such loss is caused by
the neglect of the LESSOR. The removal of snow and ice from the
sidewalks bordering upon the leased premises shall be the Lessor's
responsibility.
16. LESSEE'S LIABILITY INSURANCE:
The LESSEE shall maintain with respect to the leased premises and the
property of which the leased premises are a part comprehensive public
liability insurance in the amount of 1 MILLION CSL with property damage
insurance in limits of 1 MILLION CSL in responsible companies qualified
to do business in New Hampshire and in good standing therein insuring
the LESSOR and well as LESSEE against injury to persons or damage to
property as provided. The LESSEE shall deposit with the LESSOR
certificates for such insurance at or prior to the commencement of the
term, and thereafter within thirty (30) days prior to the expiration of
any such policies. All such insurance certificates shall provide that
such policies shall not be canceled without at least ten (10) days
prior written notice to each assured named therein.
17. FIRE - CASUALTY - EMINENT DOMAIN:
Should a substantial portion of the leased premises, or of the property
of which they are a part be substantially damaged by fire or other
casualty, or be taken by eminent domain, the LESSOR may elect to
terminate this lease. When such fire, casualty, or taking renders the
leased premises substantially unsuitable for their intended use, a just
and proportionate abatement of rent shall be made, and the LESSEE may
elect to terminate this lease if:
(a) The LESSOR fails to give written notice within thirty (30)
days of intention to restore leased premises, or
(b) The LESSOR fails to restore the leased premises to a condition
substantially suitable for their intended use within ninety
(90) days of said fire, casualty or taking.
The LESSOR reserves, and the LESSEE grants to the LESSOR, all rights
which the LESSEE may have for damages or injury to the leased premises
for any taking by eminent domain, except for damage to the LESSEE's
fixtures, property or equipment or business interruption.
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18. LATE PAYMENT- DEFAULT AND BANKRUPTCY:
A. LATE PAYMENT: LESSEE agrees that because of actual damages for
a late payment or a dishonored check are difficult to fix or
ascertain, but recognizing that damage and injury result
therefore, LESSEE agrees that if payments of rent and other
obligations are not received in hand by LESSOR ten (10)
business days after the date is due, LESSEE agrees to pay
liquidated damages of $100.00 plus 18% per annum on the
delinquent amount from the due date. The postmark on the
payment, received plus two (2) days, shall be conclusive
evidence of whether the payment is delinquent. However, LESSOR
is not responsible for late deliveries by U.S. Mail. LESSEE
agrees to pay a liquidated damage of $25.00 for each
dishonored check. In the event that two or more of the
LESSEE's checks are dishonored in a 12 month period, the
LESSOR, in addition to other Rights, shall have the right to
demand payment by Certified Check or Money Order.
B. DEFAULT AND BANKRUPTCY: In the event that (a) the LESSEE
shall default in the payment of any installment of rent or
other sum herein specified and such default shall continue for
fifteen (15) days after the payment due date; or (b) the
LESSEE shall default in the observance or performance of any
other of the LESSEE's covenants, agreement, or obligations
hereunder and such default shall not be corrected within
thirty (30) days after written notice thereof; or (c) the
LESSEE shall be declared bankrupt or insolvent according to
law, or, if any assignment shall be made of LESSEE's property
for the benefit of creditors, then the LESSOR shall have the
right thereafter, while such default continues, to re-enter
and take complete possession of the leased premises, to
declare the term of this lease ended, and remove the LESSEE's
effects, without prejudice to any remedies which might be
otherwise used for arrears of rent or other default. The
LESSEE shall indemnify the LESSOR against all loss of rent and
other payments which the LESSOR may incur by reason of such
termination during the residue of the term. If the LESSEE
shall default, after reasonable notice thereof, in the
observance or performance of any conditions or covenants on
LESSEE's part to be observed or performed under or by virtue
of any of the provisions in any article of this lease, the
LESSOR, without being under any obligation to do so and
without thereby waiving such default, may remedy such default
for the account and at the expense of the LESSEE. If the
LESSOR makes any expenditures or incurs any obligations for
the payment of money in connection therewith, including but
not limited to, reasonable attorney's fees in instituting,
prosecuting or defending any action or proceeding, such sums
paid or obligations insured, with interest at the rate of 12
per cent per annum and costs, shall be paid to the LESSOR by
the LESSEE as additional rent.
19. NOTICE:
Any notice form the LESSOR to the LESSEE relating to the leased
premises or to the occupancy thereof, shall be deemed duly served, if
mailed, postage prepaid, certified return receipt requested to the
LESSEE at ▇.▇. ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ Any notice from the
LESSEE to the LESSOR relating to the leased premises or to the
occupancy thereof, shall be deemed duly served, if mailed to the LESSOR
by registered or certified mail, return receipt requested, postage
prepaid, addressed to the LESSOR at such address as the LESSOR may from
time to time advise in writing. All rent notices shall be paid and sent
to the LESSOR at ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇.
20. SURRENDER:
The LESSEE shall at the expiration or other termination of this lease
remove all LESSEE's goods and effects from the leased premises,
(including, without hereby limiting the generality of the foregoing,
all signs and lettering affixed or painted by the LESSEE, either inside
or outside the leased premises). LESSEE shall deliver to the LESSOR the
leased premises and all keys, locks thereto, and other fixtures
connected therewith and all alterations and additions made to or upon
the leased premises except as noted in Clause 11, above, in good
condition, damage by fire or other casualty only excepted. In the event
of the LESSEE's failure to remove any of LESSEE's property from the
premises, LESSOR is hereby authorized, without liability to LESSEE for
loss or damage thereto, and at the sole risk of LESSEE, to remove and
store any of the property at LESSEE's expense,
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or to retain same under LESSOR's control or to sell at public or
private sale, without notice any or all of the property not so removed
and to apply the net proceeds of such sale to the payment of any sum
due hereunder, or to destroy such property.
21. BROKERAGE:
The Broker(s) named herein, the Fini Real Estate Group, Inc. warrants
that it is duly licensed as such by the State of New Hampshire and
joins in this agreement and becomes a party hereto, insofar as any
provisions of this agreement expressly apply to it, and to any
amendments or modifications of such provisions to which it agrees in
writing.
LESSOR agrees to pay the above-named Broker as separately agreed.
Each party warrants to the other that no other Broker or Brokers have
represented that party in the transactions resulting in this Agreement.
22. OTHER PROVISIONS:
It is also understood and agreed that
A. Hazardous Waste: Lessee shall not cause or permit any
hazardous waste to be used, stored, generated or disposed of
on or about the Demised Premises. Lessee shall indemnify and
hold harmless the Lessor from any and all claims, damages,
fines, judgments, penalties, costs, liabilities or losses
(including, without limitation, any and all costs associated
by the removal and clean-up of same, for a decrease in value
of the Demised Premises, for damages caused by loss or
restriction of rentable or usable space, and any and all sums
paid for settlement of claims, attorney's fees, consultant and
expert fees) which are attributable to Lessee, for arising
during or after the expiration of term or any extension
thereof. As used herein, "hazardous substance" means any
substance that is toxic, ignitable, reactive or corrosive and
that is regulated by any local government, the State of New
Hampshire or the United States Government. "Hazardous
Substance" includes any and all materials or substances that
are defined as "hazardous substance" pursuant to state,
federal or local government law.
B. Signage: Lessee is granted authority to install proper signage
on available marquee now installed on Elm Street at front of
building known as One Wall Street. Lessee acknowledges that
other lessees of One Wall Street will mutually share space on
this marquee. All signage must comply with ordinances of the
City of Manchester, NH. Lessor must also approve all signage
to be installed. The maximum height of the sign shall be no
more than 3 feet and the maximum width shall not exceed the
actual width of the sign pillar. Cost of installation to be
the responsibility of Lessee. Lessee agrees to reduce the
height of signage to 1 foot if necessary to accommodate
additional signage from new tenants. LESSEE shall affix no
signs, identification logos or notices to any windows or wall
on the interior of the Building except as approved by the
LESSOR. Subject to the Lessor's prior approval, not to be
unreasonably withheld, conditioned or delayed, Lessee may
affix identifying signage to the entry way to the Leased
Premise, which signage comports with the decor and appearance
of the lobby area.
C. Option to Renew: Lessor grants Lessee an option to renew for
two additional five year terms at market rates existing at the
time of each renewal. Lessee will give Lessor nine (9) months
written notice, prior to the expiration of the respective
term, if any option is to be exercised. See "Exhibit F. for
Procedure for Resolution of Dispute on Market Rate, Terms and
Conditions".
D. Limited Right of Interim Occupancy: Lessee may on after lease
execution occupy and use, and install furniture and equipment
for the period ending with completion of fit-up. Lessee may
occupy
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the space ten days prior to the Commencement date for purposes
of installation of telephone equipment or business fixtures so
long as Lessee does not interfere with Lessor build-out, and
subject to coordination and scheduling at the sole discretion
of Lessor's work supervisor.
E. Access rights: LESSEE shall have access to the Leased Premises
twenty four hours per day and seven days per week.
F. Life Safety and Americans With Disabilities Act: LESSOR
warrants that the site access to the building and the building
will meet all current compliance codes at Lessor's sole cost
and expense and that may be required by any local, state or
federal law.
G. Hazardous Materials: LESSOR warrants that to LESSOR's
knowledge there are no hazardous materials within the building
or the site.
H. Fit Out Specifications: Details of layout design and
specifications for the Leased Premises are found in
Exhibit C., part of this Agreement.
I. Lessee shall have the right, at Lessee's sole cost, to install
a receiving antenna and associated facilities on the roof of
the Building, so long as the Lessor approves the size,
location, access and structural aspects of the installation,
and the parties concur on a lease rate for that additional
use, and Lessee obtains any necessary permits or regulatory
authorizations.
J. The following Exhibits and Appendices are incorporated by
reference:
Exhibit A. Layout of Leased Premises
Exhibit B. Legal Description of Premises
Exhibit C. Fit-Up Work By LESSOR
Exhibit D. Cleaning Schedule
Exhibit F. Procedure for Resolution of Dispute on Market Rate,
Terms and Conditions
ADDENDUM TO LEASE AGREEMENT
IN WITNESS WHEREOF, the said parties hereunto set their hands and seals
this day of , 2001.
▇▇▇▇▇ WALL STREET, L.L.C.
LESSOR
Witness: /s/ BY: /s/ Manager/Member
-------------------- --------------------- ----------------
Title
R.E. ▇▇▇▇▇▇▇▇, INC. D.B.A. COLO SOLUTIONS
LESSEE
Witness: BY: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ President
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Title
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