WILL NOT BE DEEMED TO HAVE UNREASONABLY
WITHHELD ITS APPROVAL IF THE BUILDING DOES NOT HAVE THE CAPACITY (AS REASONABLY
DETERMINED BY LANDLORD AND CONFIRMED BY AN INDEPENDENT THIRD PARTY
TELECOMMUNICATIONS ENGINEER RETAINED BY TENANT AT TENANT'S SOLE COST) TO
26
SUPPORT ANOTHER SERVICE PROVIDER.
LANDLORD'S APPROVAL SHALL NOT BE DEEMED ANY
KIND OF WARRANTY OR REPRESENTATION BY LANDLORD, INCLUDING, WITHOUT LIMITATION,
ANY WARRANTY OR REPRESENTATION AS TO THE SUITABILITY, COMPETENCE, OR FINANCIAL
STRENGTH OF THE PROVIDER. WITHOUT LIMITATION OF THE FOREGOING STANDARD, UNLESS
ALL OF THE FOLLOWING CONDITIONS ARE SATISFIED TO LANDLORD'S COMMERCIALLY
REASONABLE SATISFACTION, LANDLORD SHALL DECLINE TO GIVE ITS APPROVAL:
(I)
LANDLORD SHALL INCUR NO EXPENSES WHATSOEVER WITH RESPECT TO ANY
ASPECT OF THE PROVIDER'S PROVISION OF ITS SERVICES, INCLUDING WITHOUT
LIMITATION, THE COSTS OF INSTALLATION, MATERIALS, SERVICES AND SUPERVISION;
(II)
PRIOR TO COMMENCEMENT OF ANY WORK IN OR ABOUT THE BUILDING BY THE
PROVIDER, THE PROVIDER SHALL SUPPLY LANDLORD WITH SUCH WRITTEN INDEMNITIES,
INSURANCE, FINANCIAL STATEMENTS, AND SUCH OTHER ITEMS AS LANDLORD DETERMINES TO
BE NECESSARY TO PROTECT ITS FINANCIAL INTERESTS AND THE INTERESTS OF THE
BUILDING RELATING TO THE PROPOSED ACTIVITIES OF THE PROVIDER;
(III)
THE PROVIDER AGREES TO ABIDE BY SUCH RULES AND REGULATIONS,
BUILDING AND OTHER CODES, JOB SITE RULES AND SUCH OTHER REQUIREMENTS AS ARE
DETERMINED BY LANDLORD TO BE NECESSARY TO PROTECT THE INTERESTS OF THE BUILDING,
THE TENANTS IN THE BUILDING AND LANDLORD, IN THE SAME OR SIMILAR MANNER AS
LANDLORD HAS THE RIGHT TO PROTECT ITSELF AND THE BUILDING WITH RESPECT TO
PROPOSED ALTERATIONS;
(IV)
LANDLORD REASONABLY DETERMINES THAT THERE IS SUFFICIENT SPACE IN
THE BUILDING FOR THE PLACEMENT OF THE PROVIDER'S EQUIPMENT AND MATERIALS;
(V)
THE PROVIDER AGREES TO ABIDE BY LANDLORD REQUIREMENTS, IF ANY,
THAT PROVIDER USE EXISTING BUILDING CONDUITS AND PIPES OR USE BUILDING
CONTRACTORS (OR OTHER CONTRACTORS APPROVED BY LANDLORD);
(VI)
LANDLORD RECEIVES FROM THE PROVIDER SUCH COMPENSATION AS IS
DETERMINED BY LANDLORD TO COMPENSATE IT FOR SPACE USED IN THE BUILDING FOR THE
STORAGE AND MAINTENANCE OF THE PROVIDER'S EQUIPMENT, FOR THE FAIR MARKET VALUE
OF A PROVIDER'S ACCESS TO THE BUILDING, AND THE COSTS WHICH MAY REASONABLY BE
EXPECTED TO BE INCURRED BY LANDLORD;
(VII)
THE PROVIDER AGREES TO DELIVER TO LANDLORD DETAILED "AS BUILT"
PLANS IMMEDIATELY AFTER THE INSTALLATION OF THE PROVIDER'S EQUIPMENT IS
COMPLETE; AND
(VIII)
ALL OF THE FOREGOING MATTERS ARE DOCUMENTED IN A WRITTEN LICENSE
AGREEMENT BETWEEN LANDLORD AND THE PROVIDER, THE FORM AND CONTENT OF WHICH IS
REASONABLY SATISFACTORY TO LANDLORD;
(E)
LIMIT OF DEFAULT OR BREACH.
NOTWITHSTANDING ANY PROVISION OF THE
PROCEEDING PARAGRAPHS TO THE CONTRARY, THE REFUSAL OF LANDLORD TO GRANT ITS
APPROVAL TO ANY PROSPECTIVE TELECOMMUNICATIONS PROVIDER SHALL NOT BE DEEMED A
DEFAULT OR BREACH BY LANDLORD OF ITS OBLIGATION UNDER THIS LEASE UNLESS AND
UNTIL LANDLORD IS ADJUDICATED TO HAVE ACTED RECKLESSLY OR MALICIOUSLY WITH
RESPECT TO TENANT'S REQUEST FOR APPROVAL, AND IN THAT EVENT, TENANT SHALL STILL
HAVE NO RIGHT TO TERMINATE THE LEASE OR CLAIM AN ENTITLEMENT TO RENT ABATEMENT,
BUT