|
|
Legal Resources
Business Contracts
MCLE Courses
Projects
Friends
|
Sample Business ContractsHome: Sample Business Contracts: Turn Key Datacenter Lease for Premises In a Multi-Tenant Datacenter 120 EAST VAN BUREN STREET TURN KEY DATACENTER LEASE Between DIGITAL PHOENIX VAN BUREN, LLC as Landlord and DANGER INC. as Tenant Dated 10/25/, 2007
TABLE OF CONTENTS
-i- TABLE OF CONTENTS (continued)
-ii- TABLE OF CONTENTS (continued)
-iii- 120 EAST VAN BUREN STREET TURN KEY DATACENTER LEASE This Turn Key Datacenter Lease (this “Lease”) is entered into as of the date specified in Item 4 of the Basic Lease Information (the “Effective Date”), by and between Landlord (defined in Item 1 of the Basic Lease Information, below) and Tenant (defined in Item 2 of the Basic Lease Information, below): RECITALS A. Landlord is the owner of the Land (defined in Item 20 of the Basic Lease Information, below). The Land is improved with, among other things, the Building (defined in Item 21 of the Basic Lease Information, below). The Land, the Building, and Landlord’s personal property thereon or therein may be referred to herein as the “Property.” B. Tenant desires to lease (i) a portion of the space in the Building’s Datacenter (defined in Item 22 of the Basic Lease Information, below) and (ii) that certain Pathway (defined in Section 1.1 of the Standard Lease Provisions, below) between the Datacenter and the Meet-Me Room (defined in Item 23 of the Basic Lease Information, below), for the purpose of connection to other communications networks during the Term (as defined in Section 2.1 of the Standard Lease Provisions, below). NOW, THEREFORE, in consideration of the covenants and agreements hereinafter set forth, Landlord and Tenant agree as follows: BASIC LEASE INFORMATION
-i-
-ii-
-iii-
-iv-
-v-
-vi-
-vii-
This Lease shall consist of the foregoing Basic Lease Information, and the provisions of the Standard Lease Provisions (the “Standard Lease Provisions”) (consisting of Sections 1 through 17 which follow) and Exhibits “A” through “I”, inclusive, all of which are incorporated herein by this reference as of the Effective Date. In the event of any conflict between the provisions of the Basic Lease Information and the provisions of the Standard Lease Provisions, the Basic Lease Provisions shall control. Any initially capitalized terms used herein and not otherwise defined shall have the meanings set forth in the Standard Lease Provisions. [no further text on this page]
-viii- STANDARD LEASE PROVISIONS 1. LEASE OF PREMISES. 1.1 Tenant Space. In consideration of the covenants and agreements to be performed by Tenant, and upon and subject to the terms and conditions of this Lease, Landlord hereby leases to Tenant for the Term (defined in Section 2.1, below), (i) that certain space in the cage(s) specified in Item 7(a) of the Basic Lease Information in the approximate locations depicted on Exhibit “A” attached hereto (the “Premises”) and (ii) those certain conduit(s) , partial conduit(s) and/or dark fiber(s) or copper described in Item 7(b) of the Basic Lease Information (the “Pathway”). The Premises and the Pathway shall be referred to herein collectively as the “Tenant Space.” 1.2 Condition of Tenant Space. Tenant has inspected the Datacenter and the Tenant Space and, subject to Landlord’s completion of Landlord’s Installations, Tenant accepts the Tenant Space in its “AS IS, WHERE IS” condition. Tenant acknowledges and agrees that (i) no representation or warranty (express or implied) has been made by Landlord as to the condition of the Property, the Building, the Datacenter or the Tenant Space or their suitability or fitness for the conduct of Tenant’s Permitted Use, its business or for any other purpose, except as expressly provided herein, and (ii) except as specifically set forth herein, Landlord shall have no obligation to construct or install any improvements in or to make any other alterations or modifications to the Tenant Space. Upon the completion of the Commencement Date Conditions, the taking of possession of the Tenant Space by Tenant (i.e. Tenant is not considered to be “in possession of the Tenant Space” during any period of Early Access (defined below)) shall conclusively establish that the Tenant Space was at such time in good order and clean condition. 1.3 Datacenter Connection Area. Tenant acknowledges and agrees that all interconnections between the systems of Tenant and those of other tenants of the Datacenter and/or the Building must be made in the Meet-Me Room. During the Term of this Lease and subject to availability, Tenant shall have the right to lease Additional Pathway between the Datacenter Connection Area and the Meet-Me Room upon Landlord’s then prevailing standard rates and terms for such Additional Pathway. Tenant acknowledges that the Datacenter Connection Area is a common use area that will be used by and be accessible by other tenants and their technicians. The foregoing notwithstanding, Tenant acknowledges that the Meet-Me Room is operated by an entity (not an affiliate of Landlord) named telX – Phoenix, LLC (“telx”). All operations in the Meet-Me Room (including all MMR Services, as defined in Section 6.1, below), and all Tenant presence, including pathway, in the Meet-Me Room (other than connections made in Landlord’s Meet-Me Room interconnection rack) are governed and controlled by telx; each and all of which is subject to such agreements and costs as are required, from time to time, by telx. 1.4 Intentionally Deleted. 1.5 Quiet Enjoyment; Access. Subject to all of the terms and conditions of this Lease, Tenant shall quietly have, hold and enjoy the Tenant Space without hindrance from Landlord or any person or entity claiming by, through or under Landlord. Subject to the terms and conditions of this Lease (including, without limitation, the Datacenter Rules and Regulations (defined in Section 6.2, below)) and Landlord’s Access Control Systems (defined in Section 7.1, below) and Force Majeure (as defined in Section 17.14 below), Tenant shall have access to the Tenant Space twenty-four (24) hours per day, seven (7) days per week. 2. TERM. 2.1 Term. The term of this Lease, and Tenant’s obligation to pay Rent under this Lease, shall commence on the Commencement Date and shall continue in effect for the period specified in Item 5 of the Basic Lease Information (the “Term”), unless this Lease is earlier terminated as provided herein. 2.2 Delivery of Tenant Space. Delivery of Tenant Space. Landlord shall use commercially reasonable efforts to cause the Commencement Date Conditions to occur prior to the Target
-1- Commencement Date. Upon the occurrence of the Commencement Date, Landlord shall deliver the Commencement Date Notice to Tenant. 2.2.1 Intentionally deleted. 2.2.2 In the event that the Commencement Date Conditions have not occurred by the Target Commencement Date, Landlord shall not be deemed in default hereunder, and the Commencement Date shall be postponed, as Tenant’s sole and exclusive remedy, until the date on which the Commencement Date Conditions have occurred. Notwithstanding the forgoing, in the event that the Commencement Date Conditions have not occurred prior to December 31, 2007, subject to extension related to Tenant Delay (defined below) and Force Majeure (not to exceed 60 days of Force Majeure), Tenant shall have the right, as its sole and exclusive remedy, to terminate this Lease by delivering written notice of such termination to Landlord. Should the Commencement Date Conditions occur prior to Tenant’s exercise of the foregoing termination right, however, such termination right shall, in such event, expire and be of no further force or effect upon such occurrence of the Commencement Date Conditions. For the purposes of this Lease, “Tenant Delay” shall mean a delay in Landlord’s completion of the Commencement Date Conditions, which is attributable to or caused by any change order by Tenant. 2.2.3 Tenant acknowledges that Tenant shall be responsible for installing, at Tenant’s sole cost and expense, any and all work (other than the completion of the Commencement Date Conditions) for the Premises (collectively, the “Tenant Work”). Sections 2.2, 2.2.1 & 2.2.2, above, notwithstanding, Landlord agrees, subject to the terms and conditions of this Section 2.2.3, to permit Tenant and its contractors, subcontractors, space planner/interior architect, engineers, consultants, vendors, suppliers and other representatives, and their respective employees to enter and occupy the Premises, prior to the Commencement Date (“Early Access”), for the purposes of inspecting same and for performing Tenant Work, including the installation of fixtures and equipment (e.g., telephone, communications and computer equipment and the wiring and cabling for same), on and after the date upon which Landlord notifies Tenant, verbally or otherwise, that the Premises is dust-free and safe for Tenant’s occupancy, as determined by Landlord in Landlord’s sole and absolute discretion, but not before Tenant’s Early Access would materially delay Landlord’s ability to complete the Commencement Date Conditions on or before the Target Commencement Date (the date upon which Landlord provides such notice of Early Access is referred to herein as the “Early Access Date”; the period between the Early Access Date and the Commencement Date is referred to herein as the “Early Access Period”). Any such permission shall constitute a license only, conditioned upon Tenant’s: (a) working in harmony with Landlord and Landlord’s agents, contractors, workmen, mechanics and suppliers; and (b) furnishing Landlord with such insurance as Landlord may reasonably require against liabilities which may arise out of such entry; provided that, in no event shall such insurance requirements exceed those that are described on Exhibit “B”, attached hereto. Notwithstanding anything in this Lease to the contrary, the Early Access Period may be reduced by Landlord to the extent such Early Access materially interferes with Landlord’s ability to complete the Commencement Date Conditions on or before the Target Commencement Date. Additionally, Tenant agrees that, while Tenant shall not be required to pay Base Rent during the Early Access Period, Tenant shall be required to pay any and all electricity charges that accrue to the Premises during the Early Access Period. Tenant’s Early Access right is subject to Tenant executing and delivering to Landlord a Memorandum of Understanding in the form attached hereto as Exhibit “E-2”. 2.3 Extension Option. 2.3.1 Subject to and in accordance with the terms and conditions of this Section 2.3, Tenant shall have the number of options (each, an “Extension Option”) specified in Item 6 of the Basic Lease Information to extend the Term of this Lease with respect to the entire Tenant Space, each for an
-2- additional term of forty-eight (48) calendar months (collectively the “Extension Terms”, each an “Extension Term”), upon the same terms, conditions and provisions applicable to the then current Term of this Lease (except as provided otherwise herein). The Base Rent payable with respect to the Tenant Space for each year of the Extension Term (the “Option Rent”) shall be increased hereunder as of the first (1st) day of each such year to be equal to one hundred three percent (103%) of the Base Rent payable for the immediately preceding year of the Term of the Lease, as extended. 2.3.2 Tenant may exercise each Extension Option only by delivering to Landlord a written notice (an “Option Exercise Notice”) at least nine (9) calendar months (and not more than twelve (12) calendar months) prior to then applicable expiration date of the Term, which Option Exercise Notice shall specify that Tenant is irrevocably exercising its Extension Option so as to extend the Term of this Lease by an Extension Term on the terms set forth in this Section 2.3. In the event that Tenant shall duly exercise an Extension Option, the Term shall be extended to include the applicable Extension Term (and all references to the Term in this Lease shall be deemed to refer to the Term specified in Item 5 of the Basic Lease Information, plus all duly exercised Extension Terms). In the event that Tenant shall fail to deliver an Option Exercise Notice within the applicable time period specified herein for the delivery thereof, time being of the essence, at the election of Landlord, Tenant shall be deemed to have forever waived and relinquished such Extension Option, and any other options or rights to renew or extend the Term effective after the then applicable expiration date of the Term shall terminate and shall be of no further force or effect. 2.3.3 Tenant shall have the right to exercise any Extension Option only with respect to the entire Tenant Space leased by Tenant at the time that Tenant delivers an Option Exercise Notice. If Tenant duly exercises an Extension Option, Landlord and Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary herein, any attempted exercise by Tenant of an Extension Option shall, at the election of Landlord, be invalid, ineffective, and of no force or effect if, on the date on which Tenant delivers an Option Exercise Notice or on the date on which the Option Term is scheduled to commence there shall be an uncured Event of Default by Tenant under this Lease 3. BASE RENT AND OTHER CHARGES. 3.1 Base Rent. Commencing on the Commencement Date, Tenant shall pay to Landlord base rent (the “Base Rent”) for the Tenant Space in the amount set forth in Item 9 of the Basic Lease Information. All such Base Rent shall be paid to Landlord in equal monthly installments in advance on the first day of each and every month throughout the Term of this Lease; provided, however, that (a) the first full monthly installment of Base Rent shall be payable upon Tenant’s execution of this Lease and (b) if the Term of this Lease does not commence on the first day of a calendar month, the Base Rent for such partial calendar month shall (i) be calculated on a per diem basis determined by dividing the Base Rent above by the actual number of days in such month and multiplying such amount by the number of days remaining in such calendar month from and after (and including) the Commencement Date, and (ii) shall be paid by Tenant to Landlord on the Commencement Date. Except as set forth in this Section 3.1, Tenant shall not pay any installment of Rent (defined in Section 3.3, below) more than one (1) month in advance. 3.2 Installation Fee/Other Charges. In addition to paying the Base Rent, within thirty (30) days after Tenant’s receipt of an invoice therefor from Landlord, Tenant shall pay to Landlord as Additional Rent the one-time installation fee and any other charges specified in Item 10 of the Basic Lease Information as partial consideration for the fixturization of the Datacenter as set forth on Exhibit “E” attached hereto and Landlord’s costs in connection with this Lease and Tenant’s commencement of operations within the Tenant Space 3.3 Payments Generally. Base Rent, all forms of Additional Rent (defined in this Section 3.3, below) payable hereunder by Tenant and all other amounts, fees, payments or charges payable hereunder by Tenant shall (i) each constitute rent payable hereunder (and shall sometimes collectively be referred to herein as “Rent”), (ii) be payable to Landlord when due without any prior notice or demand therefor (except as provided herein) in lawful money of the United States without any abatement, offset or
-3- deduction whatsoever (except as specifically provided otherwise herein), and (iii) be payable to Landlord at the address of Landlord specified in Item 17 of the Basic Lease Information (or to such other person or to such other place as Landlord may from time to time designate in writing to Tenant. No receipt of money by Landlord from Tenant after the termination of this Lease, the service of any notice, the commencement of any suit, or a final judgment for possession shall reinstate, continue or extend the Term of this Lease or affect any such notice, demand, suit or judgment. No partial payment by Tenant shall be deemed to be other than on account of the full amount otherwise due, nor shall any endorsement or statement on any check or any letter accompanying any check or payment be deemed an accord and satisfaction, and Landlord shall be entitled to accept such payment without compromise or prejudice to any of the rights of Landlord hereunder or under any Applicable Laws (defined in Section 6.3.1, below). In the event that the Commencement Date or the Expiration Date (or the date of any earlier termination of this Lease) falls on a date other than the first or last day of a calendar month, respectively, the Rent payable for such partial calendar month shall be prorated based on a per diem basis. For purposes of this Lease, all amounts (other than Base Rent) payable by Tenant to Landlord pursuant to this Lease, whether or not denominated as such, shall constitute “Additional Rent.” All Rent payable hereunder, except for Base Rent and except as otherwise specifically set forth herein, shall be payable in arrears within thirty (30) day of invoice by Landlord. 3.4 Late Payments. Tenant hereby acknowledges and agrees that the late payment by Tenant to Landlord of Base Rent or Additional Rent (or any other sums due hereunder) will cause Landlord to incur administrative costs not contemplated under this Lease and other damages, the exact amount of which would be extremely difficult or impractical to fix. Landlord and Tenant agree that if Landlord does not receive any such payment on or before the date that is five (5) days after the date on which such payment is due (a “Late Charge Delinquency”), Tenant shall pay to Landlord, as Additional Rent, (i) a late charge (“Late Charge”) equal to five percent (5%) of the amount overdue to cover such additional administrative costs and damages, and (ii) interest on all such delinquent amounts at an interest rate (the “Default Rate”) equal to the lesser of (a) one and one-half percent (1 1/2 %) per month or (b) the maximum lawful rate from the date such amounts are first delinquent until the date the same are paid. In no event, however, shall the charges permitted under this Article 3 or elsewhere in this Lease, to the extent the same are considered to be interest under applicable law, exceed the maximum lawful rate of interest. Landlord’s acceptance of any Late Charge, or interest pursuant to this Section 3.4, shall not be deemed to constitute a waiver of Tenant’s default with respect to the overdue amount, nor prevent Landlord from exercising any of the other rights and remedies available to Landlord hereunder or under any Applicable Laws. Notwithstanding anything herein to the contrary, Landlord agrees to waive the default interest and late charges for one (1) late payment hereunder during any consecutive twelve (12) calendar month period during the Term provided such late payment is paid in full within five (5) business days after written notice to Tenant of such failure. 3.5 Electrical Power. Tenant shall pay for all electricity provided to and/or used in the Tenant Space, as set forth herein. An electrical metering device (or electrical metering devices) (collectively, the “Electrical Metering Equipment”) compatible with Landlord’s energy management system for monitoring electricity provided to and/or used in the Tenant Space shall be installed by Tenant at Tenant’s cost. Landlord shall bill Tenant monthly for the actual cost of all electricity provided to and/or used in the Tenant Space based upon the Electrical Metering Equipment (the “Actual Electrical Costs”), plus a cost-recovery factor equal to fifty percent (50%) of the Actual Electrical Costs (the “Shared Electrical Payment”; together with the Actual Electrical Costs, collectively, the “Power Payment”). Tenant shall pay the Power Payment to Landlord, as Additional Rent, within thirty (30) days of delivery of such Power Payment invoice. Landlord and Tenant acknowledge that the Shared Electrical Payment is intended to reimburse Landlord for electricity used by certain equipment within the Tenant Space and/or by equipment located outside the Tenant Space but serving the Tenant Space, which usage, in either case, is commercially impractical of being metered because it utilizes equipment and/or facilities designed to serve more area of the Building than just the Tenant Space (the “Shared Electrical Equipment”). For the avoidance of doubt, it is the intent of the parties that this Section 3.5 represents a mechanism only for Landlord’s cost recovery with regard to electrical power provided to an | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||