DATA CENTER LEASE

Exhibit 10.1

 

3 CORPORATE PLACE

 

DATACENTER LEASE

Between

DIGITAL PISCATAWAY, LLC

as Landlord

and

SAVVIS COMMUNICATIONS CORPORATION

as Tenant

Dated

December 21, 2006

3 CORPORATE PLACE

DATACENTER LEASE

This 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 (defined in Item 21 of the Basic Lease Information, below) and (ii) certain Pathway (defined in Section 1.1 of the Standard Lease Provisions, below) between the Premises 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

 

 

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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 “K” , 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 Standard 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.

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STANDARD LEASE PROVISIONS

1. LEASE OF PREMISES .

1.1 Tenant Space . Subject to the terms and conditions of this Lease, Landlord hereby leases to Tenant and Tenant leases from Landlord for the Term (defined in Section 2.1, below), (i) the Premises, as specified in Item 7(a) of the Basic Lease Information in the approximate locations depicted on Exhibit “A” attached hereto (the “ Premises ”); (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 ”); and (ii) the Ancillary Space described in Item 7(c) of the Basic Lease Information (the “ Ancillary Space ”). The Premises, the Pathway and the Ancillary Space 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 accepts them in their “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, or the Tenant Space or their suitability or fitness for the conduct of Tenant’s Permitted Use, its business or for any other purpose 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. The taking of possession of the Tenant Space by Tenant shall conclusively establish that the Tenant Space and the Building were at such time in good order and clean condition.

1.3 Interconnections . Tenant acknowledges and agrees that all interconnections between the systems of Tenant and those of other tenants of 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 Premises and the Meet-Me-Room upon Landlord’s then prevailing standard rates and terms for such Additional Pathway.

1.4 Common Area . The Common Area, as defined in Paragraph 22 of the Basic Lease Information hereof, shall be subject to Landlord’s sole management and control and shall be operated and maintained in such manner as Landlord in Landlord’s discretion shall determine. Landlord reserves the right to change from time to time the dimensions and location of the Common Area, to construct additional stories on the Building and to place, construct or erect new structures or other improvements on any part of the Land without the consent of Tenant. Tenant, and Tenant’s employees, invitees and Permitted Licensees shall have the nonexclusive right to use the Common Area as constituted from time to time, such use to be in common with Landlord, other tenants of the Building and other persons entitled to use the same, and subject to such reasonable rules and regulations governing use as Landlord may from time to time prescribe. Tenant shall not solicit business or display merchandise within the Common Area, or distribute handbills therein, or take any action which would interfere with the rights of other persons to use the Common Area. Landlord may temporarily close any part of the Common Area for such periods of time as may be necessary to prevent the public from obtaining prescriptive rights or to make repairs or alterations.

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 Building Rules and Regulations (defined in Section 6.2, below)) and Landlord’s Access Control Systems (defined in Section 7.1, below), Tenant shall have access to the Tenant Space twenty-four (24) hours per day, seven (7) days per week.

 

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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 . Landlord shall deliver possession of the Premises to Tenant on the Commencement Date. In the event that Landlord shall fail to deliver to Tenant possession of the Premises on the Commencement Date for any other reason, Landlord shall not be deemed in default hereunder, and the Commencement Date shall be deemed to be extended until the date on which Landlord shall complete such installation and/or tender to Tenant delivery of possession of the Premises; provided, however, that, subject to Force Majeure (defined in Section 17.14, below), Tenant shall have the right, as its sole and exclusive remedy, to terminate this Lease if such installation has not been completed and/or Landlord shall fail to tender delivery of possession of the Premises on or before the date that is sixty (60) days after the date set forth in Item 4 of the Basic Lease Information (as such date may be extended for Force Majeure).

2.3 Renewal Options .

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 “ Renewal 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 additional term of sixty (60) calendar months (collectively the “ Renewal Terms ”, each a “ Renewal 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 and other charges payable with respect to the Tenant Space for each Renewal Term (the “ Option Rent ”) shall be as follows:

1 ^st Renewal Term:

 

2 ^nd Renewal Term:

 

 

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2.3.2 Tenant may exercise each Renewal Option only by delivering to Landlord a written notice (an “ Option Exercise Notice ”) at least nine (9) calendar months (and not more than twenty-four (24) calendar months) prior to then applicable expiration date of the Term, which Option Exercise Notice shall specify that Tenant is irrevocably exercising its Renewal Option so as to extend the Term of this Lease by a Renewal Term on the terms set forth in this Section 2.3. In the event that Tenant shall duly exercise a Renewal Option, the Term shall be extended to include the applicable Renewal 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 Renewal 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 Renewal 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 Renewal 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 a Renewal Option, Landlord and Tenant shall execute an amendment reflecting such exercise. Notwithstanding anything to the contrary herein, any attempted exercise by Tenant of a Renewal Option shall, 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 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 number thirty (30) 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. Tenant shall not pay any installment of Rent (defined in Section 3.4, below) more than one (1) month in advance.

3.2 Intentionally Deleted.

3.3 Operating Expenses and Taxes.

3.3.1 For purposes of this Section 3.3, the following definitions and calculations shall apply:

(1) The term “ Operating Expenses ” shall mean all reasonable expenses, costs and disbursements of every kind and nature which Landlord shall pay or become obligated to pay because of or in connection with the ownership, operation, maintenance, repair, replacement, protection and security of the Property, determined on an accrual basis in accordance with generally accepted accounting principles, including, without limitation, the following:

(i) Salaries and wages of all employees (“on-site” employees, including general manager and below, but including a pro rata share of the salaries and wages of “rotating on-site employees”, such as engineers who rotate among several buildings) engaged in the operation, maintenance and security of the Property, including taxes, insurance and benefits (including pension, retirement and fringe benefits) relating thereto;

 

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(ii) Cost of all supplies and materials used in the operation, maintenance and security of the Property (excluding cleaning and char supplies related to the cleaning of other tenants’ premises);

(iii) Cost of all electricity supplied to the Common Areas of the Property and all water and sewage service supplied to the Property;

(iv) Cost of all maintenance and service agreements for the Property and the equipment therein, including, without limitation, alarm service, parking facilities, security (both on-site and off-site), janitorial service, landscaping, fire protection, sprinklers, window cleaning and elevator maintenance, but excluding all cleaning and char contracts related to the cleaning of other tenants’ premises;

(v) Cost of all insurance relating to the Property, including the cost of casualty, rental and liability insurance applicable to the Property and Landlord’s personal property used in connection therewith;

(vi) Cost of repairs and general maintenance, but specifically excluding repairs and general maintenance paid by proceeds of insurance or by Tenant or by other third parties;

(vii) Cost of any capital improvement item, including installation thereof, amortized on a straight-line basis, but (A) only if it can be conclusively demonstrated that such item reduced the Operating Expense(s) to which it specifically relates, (B) only to the extent of such demonstrable savings and (C) excluding the cost of any capital improvement arising merely from the breakage or wearing out of a capital item;

(viii) Management fee equal to three percent (3%) times the product of gross rents actually collected at the Building during the year at issue (but in no event to exceed the product of the Management Fee Rate Cap (defined below) and the weighted average number of rentable square feet of occupied space in the Building); it being agreed that the management fee shall not be subject to the gross up provision of Section 3.3.4. For the purposes of this Lease, the term “ Management Fee Rate Cap ” shall mean and refer, in the first year of this Lease, to twenty-four dollars ($24). For each subsequent year of the Lease, the Management Fee Rate Cap shall escalate at a rate of three percent (3%) per year on a cumulative basis (e.g., in the 2 ^nd and 3 ^rd years of the Lease, the Management Fee Rate Cap shall be $24.72 and $25.46, respectively).

To the extent that any Operating Expenses are attributable to the Property and other properties of Landlord (specifically, including, without limitation, engineers who rotate among buildings), Landlord shall disclose the same to Tenant and a fair and reasonable allocation of such Operating Expenses shall be made between the Property and such other properties.

(2) The term “ Operating Expenses ” shall exclude the costs set forth on Exhibit “H” .

(3) [ Intentionally Deleted ]

(4) The term “ Actual Operating Expenses ” shall mean, with respect to each calendar year during the Term, the actual Operating Expenses for such year. The term “ Actual Operating Expenses Rate ” shall mean, with respect to each calendar year during the Term, the Actual Operating Expenses attributable to each square foot of rentable area in the Building (as set forth in

 

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Item 21 of the Basic Lease Information), and shall be calculated by dividing the Actual Operating Expenses by the total number of square feet of rentable area in the Building. The term “ Tenant’s Proportionate Share of Actual Operating Expenses ” shall mean, with respect to each calendar year during the Term, an amount equal to the product of (i) the Actual Operating Expenses Rate, multiplied by (ii) the sum of the number of square feet of rentable area in the Premises (as defined in Item 7(a) of the Basic Lease Information) in such year.

(5) The term “ Taxes ” shall mean all taxes, assessments and governmental charges (foreseen or unforeseen, general or special, ordinary or extraordinary) whether federal, state, county or municipal and whether levied by taxing districts or authorities presently taxing the Property or by others subsequently created or otherwise, and any other taxes and assessments attributable to the Property or its operation, and all taxes of whatsoever nature that are imposed in substitution for or in lieu of any of the taxes, assessments or other charges herein defined (including, but not limited to, margin taxes and/or other similar taxes assessed against or imposed on the Property or on Landlord as the owner of the Property, or measured by the income or profits of Landlord from the ownership and/or operation of the Property, and those taxes described in Section 4.2 hereof). Except as set forth in Article 4 hereof, Taxes shall not include any and all federal, state or local (i) franchise, capital stock or similar taxes, if any, of Landlord (unless in lieu of or a substitute for any other tax or assessment upon or with respect to any of the Tenant Space which, if such other tax or assessment were in effect on the Commencement Date, would be payable by Tenant hereunder or by Applicable Law), (ii) income, excess profits or other taxes, if any, of Landlord, determined on the basis of or measured wholly or in part by Landlord’s net income (unless such a tax is in the nature of a margin tax or other tax on rents, or is levied in lieu of or a substitute for any other tax or assessment upon or with respect to any of the Premises, which, if such other tax or assessment were in effect on the Commencement Date, would be payable by Tenant hereunder or by Applicable Law), (iii) any estate, inheritance, succession, gift or similar taxes of Landlord, (iv) any taxes in connection with the transfer or other disposition of any interest, other than Tenant’s (or any person claiming under Tenant), in the Premises or this Lease, to any person or entity, including, but not limited to, any capital gains, income, stamp or real property gains or withholding tax (unless attributable to an Event of Default or unless such transfer is to Tenant or a person designated by Tenant), or (v) any tax that would not have been imposed but for the failure of Landlord to comply with certification, information, documentation or other reporting requirements applicable to Landlord, if compliance with such requirements is required by statute or regulation of the relevant taxing authority as a precondition to relief or exemption from such tax, and (vi) any interest or penalties relating to any item listed in clauses (i) through (v) above.

(6) [ Intentionally Deleted ]

(7) The term “ Actual Taxes ” shall mean, with respect to each calendar year during the Term, the actual Taxes for such year. The term “ Actual Tax Rate ” shall mean, with respect to each calendar year during the Term, the Actual Taxes attributable to each square foot of rentable area in the Building (as set forth in Item 21 of the Basic Lease Information), and shall be calculated by dividing the Actual Taxes by the total number of square feet of rentable area in the Building. The term “ Tenant’s Proportionate Share of Actual Taxes ” shall mean, with respect to each calendar year during the Term, an amount equal to the product of (i) the Actual Tax Rate, multiplied by (ii) the sum of the number of square feet of rentable area in the Premises (as defined in Item 7(a) of the Basic Lease Information) in such year.

3.3.2 Tenant shall be obligated to pay to Landlord as additional rental an amount equal to Tenant’s Proportionate Share of Actual Operating Expenses. In addition, Tenant shall be obligated to pay to Landlord as additional rental an amount equal to Tenant’s Proportionate Share of Actual Taxes. To implement the foregoing, Landlord shall provide to Tenant on or before June 15 (or as soon thereafter as reasonably possible) after the end of the calendar year in which the Commencement Date occurs, a statement of the Actual Operating Expenses and the Actual Taxes for such calendar year, the Actual Operating Expenses Rate and the Actual Tax Rate for such calendar year, and Tenant’s Proportionate Share of Actual Operating Expenses, and Tenant’s Proportionate Share of Actual

 

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Taxes for such calendar year. Tenant shall pay to Landlord, within thirty (30) days after Tenant’s receipt of such statement, an amount equal to Tenant’s Proportionate Share of Actual Operating Expenses for such calendar year. Tenant shall pay to Landlord, within thirty (30) days after Tenant’s receipt of such statement, an amount equal to Tenant’s Proportionate Share of Actual Taxes for such calendar year.

3.3.3 Beginning with the Commencement Date (or as soon thereafter as reasonably possible), Landlord shall provide to Tenant a statement of (i) the projected annual Operating Expenses per square foot of rentable area in the Property (the “ Projected Operating Expenses Rate ”), and (ii) the projected annual Taxes per square foot of rentable area in the Property (the “ Projected Tax Rate ”). Beginning with the Commencement Date, Tenant shall pay to Landlord on the first day of each month an amount (the “ Projected Operating Expenses Installment ”) equal to one-twelfth (1/12) of the product of (i) the Projected Operating Expenses Rate for such calendar year, multiplied by (ii) the sum of the number of square feet of rentable area in the Premises (as defined in Item 7(a) of the Basic Lease Information) on the first day of the prior month. Beginning with the Commencement Date, Tenant shall also pay to Landlord on the first day of each month an amount (the “ Projected Tax Installment ”) equal to one-twelfth (1/12) of the product of (i) the Projected Tax Rate for such calendar year, multiplied by (ii) the sum of the number of square feet of rentable area in the Premises (as defined in Item 7(a) of the Basic Lease Information) on the first day of the prior month. Until Tenant has received the statement of the Projected Operating Expenses Rate and Projected Tax Rate from Landlord, Tenant shall continue to pay Projected Operating Expenses Installments and Projected Tax Installments to Landlord in the same amount (if any) as required for the last month of the prior calendar year. Upon Tenant’s receipt of such statement of the Projected Operating Expenses Rate, Tenant shall pay to Landlord, or Landlord shall pay to Tenant (whichever is appropriate), the difference between the amount paid by Tenant as Projected Operating Expenses Installments prior to receiving such statement and the amount payable by Tenant therefor as set forth in such statement. In addition, upon Tenant’s receipt of such statement of the Projected Tax Rate, Tenant shall pay to Landlord, or Landlord shall pay to Tenant (whichever is appropriate), the difference between the amount paid by Tenant as Projected Tax Installments prior to receiving such statement and the amount payable by Tenant therefor as set forth in such statement. Landlord shall provide Tenant a statement on or before June 15 (or as soon thereafter as reasonably possible) after the end of each calendar year, showing the Actual Operating Expenses Rate as compared to the Projected Operating Expenses Rate for such calendar year and the Actual Tax Rate as compared to the Projected Tax Rate for such calendar year. If Tenant’s Proportionate Share of Actual Operating Expenses for such calendar year exceeds the aggregate of the Projected Operating Expenses Installments collected by Landlord from Tenant, Tenant shall pay to Landlord, within thirty (30) days following Tenant’s receipt of such statement, the amount of such excess. If Tenant’s Proportionate Share of Actual Taxes for such calendar year exceeds the aggregate of the Projected Tax Installments collected by Landlord from Tenant, Tenant shall pay to Landlord, within thirty (30) days following Tenant’s receipt of such statement, the amount of such excess. If Tenant’s Proportionate Share of Actual Operating Expenses for such calendar year is less than the aggregate of the Projected Operating Expenses Installments collected by Landlord from Tenant, Landlord shall credit Tenant’s Rent hereunder, within thirty (30) days following Tenant’s receipt of such statement, the amount of such excess. If Tenant’s Proportionate Share of Actual Taxes for such calendar year is less than the aggregate of the Projected Tax Installments collected by Landlord from Tenant, Landlord shall credit Tenant’s Rent hereunder, within thirty (30) days following Tenant’s receipt of such statement, the amount of such excess. Landlord shall have the right from time to time during each calendar year to revise the Projected Operating Expenses Rate and/or Projected Tax Rate and provide Tenant with a revised statement thereof, and thereafter Tenant shall pay Projected Operating Expenses Installments and Projected Tax Installments on the basis of the revised statement. If the Commencement Date is not the first day of a calendar year, or the expiration or termination date of this Lease is not the last day of a calendar year, then Tenant’s Proportionate Share of Actual Operating Expenses and Tenant’s Proportionate Share of Actual Taxes shall be prorated. The foregoing adjustment provisions shall survive the expiration or termination of the Term.

 

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3.3.4 Notwithstanding any other provision herein to the contrary, it is agreed that if the Building is not ninety-five percent (95%) or more occupied on average during any calendar year commencing with calendar year 2008 an adjustment shall be made in computing the Actual Operating Expenses (with respect only to those Operating Expenses which actually vary with occupancy) for such year so that the Actual Operating Expenses are computed as though the Building had been ninety-five percent (95%) occupied during such year.

3.3.5 Landlord agrees to keep books and records reflecting the Operating Expenses and Taxes of the Property in accordance with generally accepted accounting principles. Tenant, at its expense, shall have the right, within twelve (12) months (the “ Audit Period ”) after receiving Landlord’s statement of Actual Operating Expenses and Taxes for a particular year, to audit Landlord’s books and records relating to the Operating Expenses and Taxes as the case may be for such year and, in the event that the charge to Tenant related to any audited item is reasonably alleged to have resulted in an overcharge in excess of five percent (5%) of the total charge for such item in such audit year, Tenant shall be permitted, during the Audit Period, to audit the same item for the two (2) prior calendar years occurring during the Term of this Lease. If conducted by Tenant, such audit shall be conducted only during regular business hours at Landlord’s office and only after Tenant gives Landlord fourteen (14) days written notice. Tenant shall deliver to Landlord a copy of the results of such audit within fifteen (15) days of its receipt by Tenant. No audit shall be conducted at any time that there is an existing Event of Default by Tenant of any of terms of this Lease. No subtenant shall have any right to conduct an audit and no assignee shall conduct an audit for any period during which such assignee was not in possession of the Tenant Space. Such audit must be conducted by an independent nationally recognized accounting firm. All information obtained through the Tenant’s audit with respect to financial matters (including, without limitation, costs, expenses, income) and any other matters pertaining to the Landlord and/or the Property as well as any compromise, settlement, or adjustment reached between Landlord and Tenant relative to the results of the audit shall be held in strict confidence by the Tenant and its officers, agents, and employees; and Tenant shall cause its auditor and any of its officers, agents, and employees to be similarly bound. As a condition precedent to Tenant’s exercise of its right to audit, Tenant must deliver to Landlord a signed covenant from the auditor in a form reasonably satisfactory to Landlord acknowledging that all of the results of such audit as well as any compromise, settlement, or adjustment reached between Landlord and Tenant shall be held in strict confidence and shall not be revealed in any manner to any person except upon the prior written consent of Landlord, which consent may be withheld in Landlord’s sole discretion, or if required pursuant to any litigation between Landlord and Tenant materially related to the facts disclosed by such audit, or if required by law. Tenant understands and agrees that this provision is of material importance to Landlord and that any violation of the terms of this provision shall result in immediate and irreparable harm to Landlord. Landlord shall have all rights allowed by law or equity if Tenant, its officers, agents, or employees and/or the auditor violate the terms of this provision, including, without limitation, the right to terminate this Lease or the right to terminate Tenant’s right to audit in the future pursuant to this paragraph. Tenant shall indemnify, defend upon request, and hold Landlord harmless from and against all costs, damages, claims, liabilities, expenses, losses, court costs, and attorneys’ fees suffered by or claimed against Landlord, based in whole or in part upon the breach of the confidentiality provisions of this paragraph by Tenant and/or its auditor, and shall cause its auditor to be similarly bound. If within such the Audit Period Tenant does not give Landlord written notice stating in reasonable detail any objection to the statement of Actual Operating Expenses and/or Actual Taxes, Tenant shall be deemed to have approved such statement in all respects. In the event that Tenant’s audit reveals a cumulative overcharge of over five percent (5%), Landlord shall reimburse Tenant for the reasonable costs of the audit, including reasonable costs of Tenant’s counsel in connection therewith); provided that Landlord shall be obligated to reimburse Tenant for the reasonable costs accumulated during such audit on an hourly basis, not a contingency basis.

3.4 Payments Generally . Base Rent, all forms of Additional Rent (defined in this Section 3.4, 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 in lawful money of the United States without any abatement, offset or deduction whatsoever (except as specifically

 

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provided otherwise herein), and (iii) be payable to Landlord at the address of Landlord specified in Item 16 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 .”

3.5 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) the Prime Rate (defined below) plus two hundred basis points 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 3.5, 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 the foregoing, Landlord agrees to waive the Late Charge and interest at the Default Rate for one (1) late payment hereunder during any consecutive twelve (12) calendar month period during the Term; provided that such late payment is paid in full within five (5) days after the date Tenant receives written notice from Landlord that same is past due. For the purposes of this Lease, the term the “ Prime Rate ”, shall mean the rate of interest published as the “prime rate” by The Wall Street Journal (or its successor, assign or a comparable publication) in its listing of “Money Rates”.

3.6 Electrical Power . Tenant shall pay for all electricity provided to and/or used in the Tenant Space. 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 (with no mark-up by Landlord) of all electricity provided to and/or used in the Tenant Space based upon the Electrical Metering Equipment (the “Actual Electrical Costs” ) which bill shall, upon request by Tenant, enclose the applicable portion of the utility company invoice. Tenant shall pay such amount (the “ Power Payment ”) to Landlord, as Additional Rent, within thirty (30) days of delivery of such Power Payment invoice. For the avoidance of doubt, it is the intent of the parties that this Section 3.6 represents a mechanism only for Landlord’s cost recovery with regard to electrical power provided to and/or used in or for the Premises, and that there is no intent for Tenant’s Power Payment to include any element of profit to the Landlord in connection therewith.

 

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4. TAX ON TENANT’S EQUIPMENT; OTHER TAXES .

4.1 Equipment Taxes . Tenant shall be liable for and shall pay at least ten (10) days before delinquency (and Tenant hereby indemnifies and holds Landlord harmless from and against any Claims (defined in Section 14.2, below) arising out of, in connection with, or in any manner related to) all governmental fees, taxes, tariffs and other charges levied directly or indirectly against any personal property, fixtures, machinery, equipment, apparatus, systems, connections, interconnections and appurtenances located in or used by Tenant in or in connection with the Tenant Space. If any such taxes for which Tenant is liable are levied or assessed against Landlord or Landlord’s property, and if Landlord elects to pay the same, Tenant shall pay to Landlord as Additional Rent, within ten (10) days of Landlord’s demand therefor, that part of such taxes for which Tenant is liable hereunder.

4.2 Additional Taxes . Tenant shall pay to Landlord, as Additional Rent and within ten (10) days of Landlord’s demand therefor, and in such manner and at such times as Landlord shall direct from time to time by written notice to Tenant, any excise, sales, privilege or other tax, assessment or other charge (other than income or franchise taxes) imposed, assessed or levied by any governmental or quasi-governmental authority or agency upon Landlord on account of (i) the Rent (and other amounts) payable by Tenant hereunder (or any other benefit received by Landlord hereunder), including, without limitation, any gross receipts tax, license fee or excise tax levied by any governmental authority, (ii) this Lease, Landlord’s business as a lessor hereunder, and the possession, leasing, operation, management, maintenance, alteration, repair, use or occupancy of any portion of the Tenant Space (including, without limitation, any applicable possessory interest taxes), (iii) this transaction or any document to which Tenant is a party creating or transferring an interest or an estate in the Tenant Space, or (iv) otherwise in respect of or as a result of the agreement or relationship of Landlord and Tenant hereunder.

5. INTENTIONALLY DELETED.

6. USE .

6.1 Permitted Use . Subject to the terms of this Lease to the contrary, Tenant shall use the Tenant Space only for the installation, placement, operation and maintenance of computer, switch, transmission and/or communications equipment and connections (in accordance with Section 1.3, above) and/or provision of managed hosting and IP services and/or colocation services to Tenant’s subtenants and customers (in accordance with Section 10.6, below), and in any case for all purposes necessary or appropriate for data center and/or telecommunications center purposes (including without limitation (a) office and other associated uses and (b) use of the Ancillary Space, in accordance with the terms of Exhibit “A-1” and Exhibit “J” ) (collectively, the “ Permitted Use ”). Any other use of the Tenant Space is subject to Landlord’s prior written consent, which consent may be withheld or conditioned in Landlord’s sole and absolute discretion.

6.2 Building Rules and Regulations . Tenant’s Permitted Use shall be subject to, and Tenant, and Tenant’s agents, employees and invitees shall comply fully with all requirements of the Building Rules and Regulations. Landlord shall at all times have the right to change, such rules and regulations or to amend or supplement them in such manner as may be deemed (by Landlord in the exercise of its sole but good faith discretion) advisable for the safety, care and cleanliness of the Tenant Space, the Building and the Property and for preservation of good order therein, all of which Building Rules and Regulations, as changed, amended, and/or supplemented from time to time, shall be fully carried out and strictly observed by Tenant; provided, however, that such changes to the Building Rules and Regulations may not increase Tenant’s monetary obligations under this Lease or restrict in any way Tenant’s operation in the Tenant Space twenty-four (24) hours per day seven (7) days per week during the Term. In the event of a conflict between the Building Rules and Regulations and the terms of this Lease, the terms of this Lease shall govern. Tenant shall further be responsible for the compliance with such Building Rules and Regulations (as the same may be changed, amended and/or supplemented from time to time) by the employees, agents and invitees of Tenant. Landlord shall apply the Building Rules and Regulations uniformly to the tenants of the Building.

 

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6.3 Compliance with Laws; Hazardous Materials .

6.3.1 Compliance with Laws . Tenant, at Tenant’s sole cost and expense, shall timely take all action required to cause the Tenant Space to comply in all respects with all laws, ordinances, building codes, rules, regulations, orders and directives of any governmental authority having jurisdiction (including without limitation any certificate of occupancy), and all covenants, conditions and restrictions affecting the Property now or in the future applicable to the Tenant Space (collectively, “ Applicable Laws ”) and with all rules, orders, regulations and requirements of any applicable fire rating bureau or other organization performing a similar function. Tenant shall not use the Tenant Space, or permit the Tenant Space to be used, in any manner, or do or suffer any act in or about the Tenant Space which: (i) violates or conflicts with any Applicable Law; (ii) causes or is reasonably likely to cause damage to the Property, the Building, the Tenant Space or the Building and/or Property systems and equipment, including, without limitation, all fire/life safety, electrical, HVAC, plumbing or sprinkler, access control (including, without limitation, Landlord’s Access Control Systems), mechanical, telecommunications, elevator and escalator systems and equipment (collectively, the “ Building Systems ”); (iii) will invalidate or otherwise violates a requirement or condition of any fire, extended coverage or any other insurance policy covering the Property, the Building, and/or the Tenant Space, or the property located therein, or will increase the cost of any of the same (unless, at Landlord’s election, Landlord permits an activity which will cause an increase in any such insurance rates on the condition that Tenant shall agree in writing to pay any such increase to Landlord immediately upon demand as Additional Rent); (iv) constitutes or is reasonably likely to constitute a nuisance, annoyance or inconvenience to other tenants or occupants of the Building or the Property, or any equipment, facilities or systems of any such Tenant; (v) interferes with, or is reasonably likely to interfere with, the transmission or reception of microwave, television, radio, telephone, or other communication signals by antennae or other facilities located at the Property; (vi) amounts to (or results in) the commission of waste in the Tenant Space, the Building or the Property; (vii) violates any of the rules and regulations from time to time promulgated by Landlord applicable to the Tenant Space, the Building or the Property (including, without limitation, the Building Rules and Regulations) (provided that this item (vii) shall not be deemed to allow Landlord to prohibit Tenant from running a data center in the Premises); or (viii) other than the Permitted Use. The foregoing notwithstanding, Landlord agrees (aa) to cause all other tenant spaces in the Building to be built out in accordance with Applicable Law; and (bb) to cause all other tenant leases for the Building to contain items (i)-(vii) of this Section 6.3.1. Subject to the provisions of Section 9.1.5, Tenant shall be responsible for any losses, costs or damages in the event that unauthorized parties gain access to the Tenant Space or the Building through access cards, keys or other access devices provided to Tenant by Landlord. Tenant shall promptly upon demand reimburse Landlord as additional rent for any additional premium charged for any insurance policy by reason of Tenant’s failure to comply with the provisions of this Section 6.3, subject to the notice and cure period described in Section 15.1.2 hereof.

6.3.2 Hazardous Materials . No Hazardous Materials (defined below) shall be Handled (defined below) upon, about, in, at, above or beneath the Tenant Space or any portion of the Building or the Property by or on behalf of Tenant, its Transferees (defined in 10.1, below), or their respective contractors, clients, officers, directors, employees, representatives, licensees, agents, or invitees (the “ Tenant Parties ”). Notwithstanding the foregoing, normal quantities of those Hazardous Materials customarily used in the conduct of the Permitted Use may be used at the Tenant Space without Landlord’s prior written consent, but only in compliance with all applicable Environmental Laws (defined below) and only in a manner consistent with Institutional Owner Practices (defined in Section 8.3, below). “ Environmental Laws ” shall mean and include all now and hereafter existing Applicable Laws regulating, relating to, or imposing liability or standards of conduct concerning public health and safety or the environment. “ Hazardous Materials ” shall mean and include: (1) any material or substance: (i) which is defined or becomes defined as a “hazardous substance,” “hazardous waste,” “infectious waste,” “chemical mixture or substance,” or “air pollutant” under Environmental Laws; (ii) containing petroleum, crude oil or any fraction thereof; (iii) containing polychlorinated biphenyls (PCB’s); (iv) asbestos, asbestos-containing materials or presumed asbestos-containing materials (collectively, “ ACM ”); (v) which is radioactive; (vi) which is

 

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infectious; or (2) any other material or substance displaying toxic, reactive, ignitable or corrosive characteristics, and are defined, or become defined by any Environmental Law. “ Handle ,” “ Handled ,” or “ Handling ” shall mean any installation, handling, generation, storage, treatment, use, disposal, discharge, release, manufacture, refinement, presence, migration, emission, abatement, removal, transportation, or any other activity of any type in connection with or involving Hazardous Materials. Landlord hereby represents and warrants that to the best of Landlord’s actual knowledge, neither the Building nor the Land contain any Hazardous Materials at levels or in conditions that are in violation of applicable Environmental Laws. As used herein, the phrase “ Landlord’s actual knowledge ”, or similar phrases, shall mean the actual current knowledge as of the date of this Lease of Christopher Crosby, Senior Vice President of Digital Realty Trust, L.P, and David J. Caron, Vice President of Digital Realty Trust, L.P. (the foregoing two (2) individuals, collectively, “ Landlord’s Knowledge Parties ”). In the event that Environmental Laws require Landlord to remove Hazardous Materials from any part of the Building or Land, that obligation shall be at Landlord’s sole cost and shall be limited to removal of Hazardous Materials which are in excess of the legal levels permitted by Environmental Laws, and which were not placed on the Property by Tenant (the prompt clean up of which, in accordance with Environmental Laws, shall be the responsibility of Tenant hereunder).

6.4 Electrical Consumption Threshold . Tenant’s actual electricity consumption for the Premises, as reasonably determined by Landlord pursuant to such measurement me