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EXHIBIT 10.17
10TH FLOOR
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease (the "Second Amendment") is dated as of
February 23, 1998, for reference purposes only, and is made between 50 West San
▇▇▇▇▇▇▇▇ Associates, a California limited partnership ("Landlord") and
AboveNet, a California corporation ("Tenant") with reference to the following
facts and circumstances, which are conclusively agreed between the parties:
A. Landlord and Tenant are parties to that certain Office Lease
dated for reference purposes as of May 15, 1996, as amended by First
Amendment to Lease dated as of December 12, 1996 (collectively referred to
as the "Lease"). All capitalized words having an assigned meaning in the
Lease shall continue to have such meaning in this Amendment unless
explicitly modified.
B. The Lease relates to Landlord's premises located on the 10th
floor of Landlord's property located at ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ (the "Building"). Pursuant to the Lease, Tenant occupies
1,986 rentable square feet of space in the Building commonly known as
Suite 1010 (also referred to as the "Existing Premises").
C. Tenant is also occupying 3,211 rentable square feet of space in
the Building commonly known as Suite 1015 pursuant to a sublease from
▇▇▇▇▇▇▇ Small Properties ("KSP"). Concurrently herewith, KSP and Tenant
are executing a Termination Agreement whereby KSP's lease on Suite 1015 is
relocated and Tenant's sublease on Suite 1015 will be terminated.
D. Tenant is currently arranging to sublease 10,419.97 rentable
square feet of space in the Building commonly known as Suite 1000, which
is currently under lease to Peat Marwick ("PM").
E. Bohn, Bennion, and Niland ("BBN") is currently occupying 4,306
rentable square feet of space in the Building commonly known as Suite 1020
(the "BBN Space").
F. Landlord and Tenant wish to amend the Lease to add Suite 1015 to
the Existing Premises on the Suite 1015 Commencement
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Date (as defined below) and to add Suite 1000 to the Existing Premises on
September 1, 1998, when the PM lease expires, on the terms and conditions
set forth below. As a part of this same transaction, Landlord and Tenant
wish to extend the term of Tenant's lease on the Existing Premises such
that said term is coterminous with the term on Suites 1000 and 1015, to
settle various other issues between Landlord and Tenant, and to grant
Landlord and Tenant various other rights. The Existing Premises and Suite
1015 are referred to herein collectively as the "Premises", and from the
Second Amendment Commencement Date, all references in the Lease to the
Premises shall be to Suites 1010 and 1015, until September 1, 1998, when
Tenant will occupy Suite 1000, as of which time the "Premises" shall
include Suites 1000, 1010, and 1015.
Now, therefore, in consideration of all of the foregoing facts and
circumstances, and for good and valuable consideration, the receipt of which is
acknowledged by each party, Landlord and Tenant agree to and do amend the Lease
as follows:
1. DEMISE OF SUITES 1015 AND 1000
Commencing on the Suite 1015 Commencement Date (defined below) and
subject to the terms and provisions of the Lease and this Second Amendment,
Landlord hereby leases to Tenant, and Tenant leases from Landlord, Suite 1015.
Commencing on September 1, 1998 and subject to the terms and provisions of the
Lease and this Second Amendment, Landlord hereby leases to Tenant, and Tenant
leases from Landlord, Suite 1000. All of the Existing Premises and these Suites
shall be deemed leased under one single, inseparable lease.
2. LEASE TERM FOR NEW SPACE; EXTENSION OF LEASE TERM FOR EXISTING PREMISES
Subject to the terms and provisions of this Second Amendment, Landlord and
Tenant agree that the Lease Term of the Existing Premises shall be and hereby is
extended as follows: The Lease Term shall continue from the Suite 1015
Commencement Date for the remainder of a calendar month (if the Suite 1015
Commencement Date occurs on a date other than the first day of a calendar month)
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plus one hundred twenty (120) full calendar months and expire, unless sooner
terminated pursuant to the provisions of the Lease and this Second Amendment,
on the last day of the 120th full calendar month following the Suite 1015
Commencement Date (the "Lease Term Expiration Date"). The Lease
Term for Suite 1015 shall begin on the Suite 1015 Commencement Date and the
Lease Term for Suite 1000 shall begin on September 1, 1998, and each shall be
coterminous with the Lease Term of the Existing Premises, and thus will also
end, unless sooner terminated pursuant to the provisions of this Lease and this
Second Amendment, on the Lease Term Expiration Date. Effective on execution
hereof, Paragraph 1.6 ("Term") of the Lease shall be of no further force or
effect, but shall be deemed replaced by this Paragraph.
3. SUITE 1015 COMMENCEMENT DATE
Landlord shall deliver occupancy of Suite 1015 to Tenant on March 1, 1998
(the "Suite 1015 Commencement Date"). In the event that Landlord does not
deliver on said date, however, the Suite 1015 Commencement Date shall be the
actual date of delivery. This Second Amendment shall not be void or voidable,
nor shall Landlord be liable to Tenant for any loss of damage resulting
therefrom, if Landlord is unable to deliver Suite 1015 by the Suite 1015
Commencement Date or to deliver Suite 1000 by September 1, 1998, provided, that
no Rent shall be payable by Tenant to Landlord on each such Suite for any
period prior to the date on which possession of the Suite is delivered by
Landlord.
4. INCREASES IN MONTHLY RENT
Tenant's Monthly Rent on Suite 1015 shall be $6,905.25 through August
31, 1998. In addition to such Suite 1015 Monthly Rent, Tenant shall pay to
Landlord as Monthly Rent on Suite 1010, beginning on the Suite 1015
Commencement Date and continuing through May 31, 1998, the sum of $2,482.50 per
month, and from June 1, 1998 through August 31, 1998, the sum of $2,979.00 per
month, for a total rent of $9,387.75 from the Suite 1015 Commencement Date to
May 31, 1998 and $9,884.25 from June 1, 1998 through August 31, 1998. Tenant's
Monthly Rent from and after September 1, 1998 for the Premises shall be as set
forth in the following table:
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Total
Rentable Per Rentable Monthly
Period Square Feet Square Foot Rent
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9/1/98 to end of 15,616.97 $2.85 $44,508.36
first lease year*
Year 2** 15,616.97 $2.85 $44,508.36
Year 3 15,616.97 $2.95 $46,070.06
Year 4 15,616.97 $2.95 $46,070.06
Year 5 15,616.97 $3.10 $48,412.61
Year 6 15,616.97 $3.10 $48,412.61
Year 7 15,616.97 $3.20 $49,974.30
Year 8 15,616.97 $3.20 $49,974.30
Year 9 15,616.97 $3.30 $51,536.00
Year 10 15,616.97 $3.30 $51,536.00
* Includes twelve full calendar months beginning on the Suite 1015
Commencement Date plus the partial month, if any, between the Suite 1015
Commencement Date and the last day of the calendar month in which it occurs.
** This and all following Lease Years begins on the day following the end of
the preceding Lease Year.
5. OPTION TO LEASE ADDITIONAL SPACE:
▇. ▇▇▇▇▇: If BBN does not extend its lease on Suite 1020 or if Suite
1020 becomes available for lease for any reason, Landlord hereby grants Tenant a
first option (subject only to any option or first refusal rights of current
tenants of the Building) to lease such space, on the terms and conditions set
forth below in this Paragraph. Such lease would be for a term beginning on the
Occupancy Date (as defined below) and ending coterminously with the term of this
lease, and with the same option to extend the lease after the end of the Lease
Term, and on all of the terms and conditions hereof, including the same rental
rate as is then in force for the Premises, and all increases in such rent. This
option is subject to all rights of BBN now or hereafter granted in regard to the
space, and Tenant understands and agrees that its rights under this option are
subordinate to any lease rights currently enjoyed
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by or hereafter granted to BBN, whether pursuant to exercise of an option to
extend the lease or by negotiation and a new amended lease between Landlord and
BBN.
B. NOTICE: Landlord shall give Tenant written notice of the availability
of Suite 1020, including a statement of the date on which it would become
available for occupancy (the "Occupancy Date"). Within thirty (30) days after
such notice, Tenant shall give Landlord written notice that Tenant exercises
the option to lease Suite 1020 granted in this Paragraph 5. Such notice shall
form a binding contract to lease Suite 1020 on the terms stated in this
Paragraph 5, beginning on the Occupancy Date. Unless exercised in accordance
with the strict requirements hereof, by a valid notice delivered to Landlord on
or before the required date, the option granted hereby shall be of no force or
effect whatever.
C. CONDITIONS: Tenant may not exercise the option granted in this
Paragraph if (i) there is a Default by Tenant on the date of Tenant's notice,
or at any time thereafter and prior to the Occupancy Date; and/or (ii) Tenant
has assigned or otherwise transferred its interest in this Lease and/or the
Premises, whether or not Landlord has consented to such assignment or transfer,
on the date of Tenant's notice or the Occupancy Date; and notice of exercise
shall be, at Landlord's sole discretion and option, of no force or effect in
either such circumstance. The period of exercise of the Option shall not be
extended for any period in which Tenant is unable to exercise the Option by
reason of a Default by Tenant, assignment, or transfer by Tenant. This option
shall be subordinate to any right of first refusal or option on the First
Refusal Space which has been granted by Landlord to any third party prior to
the execution hereof.
D. TERMS: Except as otherwise specifically excluded, all terms and
conditions of the Lease as amended by this Second Amendment (except for this
option) shall apply during any Extended Term created by Tenant's proper
exercise of the Option.
E. FORMATION OF CONTRACT BY NOTICE: Once Tenant delivers notice of its
exercise of the Option, Tenant may not withdraw such exercise and, subject to
the provisions of this Section, such notice shall automatically operate to
lease Suite 1020. Upon such lease, the term "Premises" as used in this Lease
shall thereafter include both the Premises as defined in this Amendment and
Suite 1020.
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F. SECURITY DEPOSIT: Upon the day immediately prior to Occupancy Date,
Tenant shall supply Landlord with sufficient funds as a further Security
Deposit to increase the total Security Deposit to an amount equal to the rent
for the first full month after the Occupancy Date, and unless and until Tenant
delivers such additional Security Deposit, Tenant shall not be delivered
possession of Suite 1020, but such failure shall not postpone or delay the
start of Tenant's rent obligations, which shall be on the Occupancy Date.
G. FAILURE TO GIVE VALID NOTICE: If Tenant does not give a valid
notice of exercise on or before the required date, then Tenant agrees that it
will forthwith execute such documents as are reasonably required by Landlord to
document that the Option is of no further force or effect. Tenant agrees to
indemnify, defend, and hold harmless Landlord from any and all costs, losses,
damages, or claims suffered or incurred by Landlord on account of Tenant's
failure to execute such documents if a valid notice of exercise is not timely
given.
6. RIGHT OF FIRST REFUSAL TO LEASE ADDITIONAL SPACE:
▇. ▇▇▇▇▇ AND RIGHT OF FIRST REFUSAL: Solely in the event that Tenant
does not exercise the option granted to Tenant in ▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇ grants
to Tenant a right of first refusal to lease the BBN Space (referred to in this
Paragraph as the "First Refusal Space"), on the terms contained in this
Paragraph.
B. NOTICE OF INTENT TO LEASE: If Landlord has a bona fide offer (which
may include an executed non-binding letter of intent) to lease, rent, or
license the First Refusal Space or a portion thereof to a prospective tenant at
any time after the Tenant has been offered the First Refusal Space pursuant to
the option granted herein and before the expiration or earlier termination of
this Lease or this right of first refusal, if such offer is one to which this
right of first refusal applies, as set forth in Subparagraph G below, and if
this Right of First Refusal has not been terminated as set forth in
Subparagraphs E and F, then Landlord shall notify Tenant in writing (the "First
Refusal Notice") of (a) the amount and location of the space within the First
Refusal Space which it proposes to lease (the "Offered Space"), (b) the
business terms and conditions upon which it proposes to lease such space, and
(c) the identity of the proposed tenant, and such notice shall constitute an
offer by Landlord to lease the Offered Space to Tenant as set forth below.
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C. EXERCISE OF RIGHT OF FIRST REFUSAL: If Tenant, within three (3)
business days after receipt of the First Refusal Notice (the "First Refusal
Period"), agrees in writing to lease the Offered Space on the terms and
conditions stated in the First Refusal Notice, then Landlord and Tenant shall
enter into an Amendment to this Lease (the "Amendment") whereby the Offered
Space shall be leased to Tenant on the terms and conditions stated in the First
Refusal Notice, with the exception that the lease of the Offered Space,
notwithstanding any greater or lesser term to be offered to the third party
tenant, shall be for a term which is coterminous with the term of the Lease as
amended by this Amendment and the Base Monthly Rent for the Offered Space shall
be the same as Tenant's Base Rent for the Premises as of the date of Tenant's
acceptance of the Offered Space, or the Base Rent offered by the third party,
whichever is higher, and the Amendment shall provide that Tenant shall have
the same option to extend the Lease Term as to the Offered Space as Tenant then
has to extend the Lease Term of the Premises (provided, that exercise of such
option shall be conditioned on Tenant's exercise of its option to extend the
term on the Premises).
D. LANDLORD'S RIGHT TO LEASE: If Tenant does not give written notice of
agreement to lease the Offered Space on the terms contained in the First Refusal
Notice within the First Refusal Period, then Landlord shall have the right to
lease the Offered Space to the identified tenant (or an associated party) on
substantially the business terms and conditions set forth in the First Refusal
Notice, provided, however, that Landlord may make changes to its form of lease
at the request of the identified prospective tenant to induce it to lease such
space from Landlord so long as Landlord does not substantially change the basic
business terms and conditions in First Refusal Notice in favor of the third
party tenant. If Landlord does not lease the Offered Space to the prospective
tenant within one hundred twenty (120) days after the First Refusal Notice is
given, then any further transaction shall be deemed a new transaction and the
provisions of this paragraph shall again be applicable.
E. TERMINATION: The right granted to Tenant in this Paragraph is
personal to Tenant, and may not be assigned by Tenant to any third party,
either alone or in conjunction with an assignment of this Lease or a sublease
of all or any part of the Premises. The provisions of this paragraph shall
terminate upon the earliest of the following to happen: (i) the expiration or
earlier termination of the Lease, (ii) any assignment by Tenant of its
interest in this Lease, (iii) any subletting by Tenant of substantially all of
the Premises for substantially all of the remainder of
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the Lease Term, (iv) the termination of this right by default as set forth in
Subparagraph F. below, or (v) as to any Offered Space, if Tenant refuses to
lease the Offered Space within the First Refusal Period after being given a
First Refusal Notice as to such Offered Space, if Landlord subsequently leases
the Offered Space to a prospective third party tenant or occupant.
F. TERMINATION BY DEFAULT: The rights of Tenant under this Paragraph
shall not be effective at any time when Tenant there exists a Default by
Tenant. If Tenant, with the agreement of Landlord, shall nevertheless cure such
Default by Tenant, then the rights provided hereunder shall be reinstated, but
any transaction to lease or rent any or all of the First Refusal Space entered
into by Landlord during such period of default shall be valid and Tenant shall
have no further Right of First Refusal as to any such leased or agreed to be
leased by Landlord while Tenant is in default as set forth above.
G. NO RIGHT OF FIRST REFUSAL FOR RENEWAL OR EXTENSION SPACE: The right
granted to Tenant by this Paragraph shall not arise on account of or in
connection with the renewal or extension of the term of any lease or rental
agreement affecting all or any portion of the First Refusal Space, and shall be
subordinate to any right of first refusal or option on the First Refusal Space
which has been granted by Landlord to any third party prior to the execution
hereof.
7. INCORPORATION OF NEW SPACE INTO THE PREMISES:
From and after the Suite 1015 Commencement Date and after September 1,
1998, respectively, all of the terms and conditions of the Lease, as the same
are amended and modified in this Second Amendment, shall be applicable to Suite
1015 and Suite 1000 in the same manner as applicable to the Existing Premises,
except as set forth herein.
From and after the Suite 1015 Commencement Date and until August 31, 1998,
Tenant's Percentage shall be 1.65%. From and after September 1, 1998 to the
Lease Term Expiration Date, Tenant's Percentage shall be 4.88%.
8. SECURITY DEPOSIT
Upon execution hereof, the Security Deposit pursuant to this Lease shall be
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increased from the current amount to an amount equal to $9,884.25. On September
1, 1998, the Security Deposit shall be further increased to a total of
$52,015.76, the amount of the last month's rent hereunder.
9. OPTION TO EXTEND LEASE TERM FURTHER
Landlord hereby grants to Tenant two (2) options (the "Options") to extend
the Lease Term with respect to the Premises on the following terms and
conditions:
▇. ▇▇▇▇▇: The Options shall give Tenant the right to extend the Lease
Term (as set forth herein) for two additional periods each of which shall be
five (5) years in length (each of which is referred to herein as an "Extended
Term");
B. NOTICE: Tenant shall give Landlord written notice of its exercise of
the Option (the "Notice of Exercise") no earlier than eighteen (18) nor later
than fourteen (14) months before the date on which the Lease Term would end but
for said exercise. Unless a valid Notice of Exercise is given during the period
specified in this Subparagraph, the Option shall be null, void, and of no force
or effect. At any time that the Option has become null, void, and of no further
force or effect, Tenant shall, at Landlord's written request, sign such
documents as Landlord shall reasonably propose, establishing in recordable form
that the Option no longer exists.
C. CONDITIONS: Tenant may not extend the Lease Term pursuant to this
Paragraph if (i) there is a Default by Tenant on the date of Tenant's Notice of
Exercise; and/or (ii) Tenant has assigned or otherwise transferred its interest
in this Lease and/or the Premises, whether or not Landlord has consented to such
assignment or transfer, on the date of Tenant's Notice of Exercise; and any
purported Notice of Exercise given under either of such circumstances shall be
of no force or effect. The period of exercise of the Option shall not be
extended for any period in which Tenant is unable to exercise the Option by
reason of a Default, assignment, or transfer by Tenant; provided, however, that
if there is a Default by Tenant which prevents Tenant from giving a valid Notice
of Exercise and the Default by Tenant is later cured by Tenant within the
applicable exercise period (without extension), then Tenant may exercise the
Option by giving a new Notice of Exercise prior to the end of such unextended
exercise period. If there is a Default by Tenant on the date that the Extended
Term is to commence, and said Default has continued uncured past the applicable
cure periods set forth in Paragraph 16.2 of the
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Lease, then Landlord may elect to terminate this Lease by written notice to
Tenant, in which case the Lease shall terminate notwithstanding any Notice of
Exercise, and in such case, the Notice of Exercise, the Option, and the
Extended Term shall be of no force or effect (and any further Option shall be
void). In such case, Landlord shall give the Tenant notice that Landlord elects
to terminate the Lease on such grounds, no later than ten (10) days after the
Extended Term would have otherwise commenced, which notice shall set a date not
less than thirty (30) nor more than sixty (60) days after the date on which the
notice is given, upon which date the Lease shall terminate and Tenant shall
deliver possession of the Premises to Landlord.
D. TERMS: Except as otherwise specifically excluded, all terms and
conditions of the Lease as amended by this Second Amendment (except for this
option) shall apply during any Extended Term created by Tenant's proper exercise
of the Option, except that the Base Rent for the Extended Term shall be
determined as set forth below, and any Tenant Improvement Allowances set forth
in the Lease or in this Second Amendment shall not be applicable to any Extended
Term.
E. FORMATION OF CONTRACT BY NOTICE: Once Tenant delivers notice of its
exercise of the Option, Tenant may not withdraw such exercise and, subject to
the provisions of this Section, such notice shall automatically operate to
extend the Lease Term. Upon the extension of the Lease Term pursuant to this
Section, the term "Lease Term" as used in this Lease shall thereafter include
any Extended Term created by the exercise of the Option, and the Termination
date shall be the expiration date of such Extended Term.
F. OTHER CONDITIONS TO EXERCISE: Tenant's options must be exercised
sequentially, and if Tenant does not exercise the first of the two Options, or
if, pursuant to the terms of this Section, the first option shall terminate or
become void, then the second Option shall thereupon, and without further action
by either party, immediately lapse and be of no further force or effect. Each
of the Options may be exercised only as to the total 10th floor Premises then
leased by Tenant under this Lease as amended, including any of the Option Space
which has been added to the Premises by Tenant's exercise of Option to Expand
as described above.
10. RENT DURING OPTION TERM.
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If Tenant elects to extend the Term of the Lease pursuant to Paragraph 8
above, Base Rent for the Extended Term shall be an amount equal to the Fair
Market Rental Value (as defined below) of the Premises during such Extended
Term, but in no event less than the Base Rent due during the last year of the
Lease Term prior to such Extended Term. The amount of such Base Rent during the
Extended Term shall be determined as follows:
A. DETERMINATION OF FAIR MARKET RENTAL VALUE. The "Fair Market
Rental Value", as used herein, shall be the reasonable market rental value for
the use of the Premises permitted in this Lease (including, but not limited to,
considerations of rental rates for comparable space with comparable tenant
improvements located in the Building and in the central area of downtown San
▇▇▇▇ in which the Building is located, but not elsewhere, cost of living or
other rental adjustments, and the relative financial and credit strength of
Tenant versus other tenants of comparable properties), on a "full service"
basis, for a property which is already improved with the Tenant Improvements
which are present in the Premises, but with such periodic increases in rent
during the Extended Term as the appraiser(s) shall determine to be reasonable
market lease conditions.
B. MUTUAL AGREEMENT. After timely receipt by Landlord of Tenant's
notice of exercise of an Option to extend the Lease Term, Landlord and Tenant
shall have a period of thirty (30) days in which to agree on the Fair Market
Rental Value of the Premises. If Landlord and Tenant agree on the Fair Market
Rental Value for the Premises, then they shall immediately execute an amendment
to this Lease stating such agreed upon Fair Market Rental Value as the Base
Rent for the Extended Term. If Landlord and Tenant are unable to so agree upon
the Fair Market Rental Value for the Premises, the provisions of Subparagraph
(c) below shall apply.
C. APPRAISAL. If Landlord and Tenant cannot agree in writing on a
Fair Market Rental Value for the Premises within five (5) days after the
expiration of the thirty (30) day period described in Subparagraph (b) above,
each party, at its cost and by giving notice to the other party, shall appoint
and M.A.I. real estate appraiser, with at least five (5) years full-time
commercial appraisal experience in this County, to appraise and set the Fair
Market Rental Value of the Premises. If a party does not appoint an appraiser
within five (5) days after the other party has given notice of the name of its
appraiser, the single appraiser appointed shall be the sole appraiser and
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shall set the Fair Market Rental Value, and in such case, the cost of such sole
appraiser shall be born equally by the parties. If two appraisers are appointed
by the parties as provided in this Subparagraph, the appraisers shall meet
promptly and attempt to set the Fair Market Rental Value. If they are unable to
agree within twenty (20) days after the last appraiser has been appointed, then
each of the two appraisers shall prepare a written report setting forth the
basis of and result of his/her appraisal of the Fair Market Rental Value of the
Premises, and provide copies to Landlord and Tenant. The two appraisers shall
attempt to select and agree upon a third appraiser meeting the qualifications
stated in this Section within ten (10) days after the last day the two
appraisers are given to set the Fair Market Rental Value. If they are unable to
agree on the third appraiser, either of the parties to this Lease, by giving
ten (10) days notice to the other party, may apply to the presiding judge of
the Superior Court of County for the selection of a third appraiser who meets
the qualifications stated above. Each of the parties shall bear one-half (1/2)
of the cost (including attorney's fees and court costs) of appointing the third
appraiser and of paying the third appraiser's fee. The third appraiser,
however selected, shall select which of the two appraisals submitted by the
parties' respective appraisers more closely represents the Fair Market Rental
Value for the Premises, which selection shall establish and set the Fair Market
Rental Value of the Premises for purposes of determining the Base Rent during
the Extended Term. The third appraiser shall be provided with the written
appraisals of the first two appraisers upon appointment, and shall select which
appraisal shall set Fair Market Rental Value within ten (10) days of
appointment, by a written selection provided to Tenant and Landlord.
11. WAIVER OF OTHER RENEWAL OPTIONS
Tenant agrees that the execution of this Second Amendment substitutes
new obligations in lieu of any options to extend the Lease Term or expand the
Premises or to exercise any right of first refusal, and that such shall be of
no further force or effect upon execution hereof.
12. CONDITION OF PREMISES
Tenant is currently in possession of the Existing Premises and is
familiar with their condition, and Tenant has had the opportunity to become
familiar with all other space discussed herein, and to perform any
investigations of its condition and
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suitability as Tenant deemed necessary or appropriate. Tenant accepts the
Premises, including Suites 1000, 1010, 1015, and 1020 in their current condition
as of the date on which Tenant takes possession thereof, "AS-IS", with all
faults, and acknowledges that neither Landlord, nor any agent, employee,
manager, or attorney of Landlord, has made any representations or warranties
with respect to the Premises or the Building, or with respect to the suitability
of either for the conduct of Tenant's business.
13. CONSTRUCTION OF TENANT IMPROVEMENTS
Tenant may construct Tenant Improvements in the Premises pursuant to the
provisions of the Lease and of this Second Amendment.
A. All construction of Tenant Improvements must be through a licensed
general contractor approved in advance in writing by Landlord, and pursuant to
building and other required permits issued by the City of San ▇▇▇▇. Landlord
shall also have the right to approve all subcontractors who will be working in
the Building.
B. Tenant shall construct any Tenant Improvements pursuant to plans
and specifications which have been submitted to and approved in writing by
Landlord prior to the beginning of construction, including (1) any engineering
and load calculations and (2) power and energy calculations, each as Landlord
shall deem necessary or appropriate. Such construction shall be in accordance
with all laws and regulations applicable thereto, and subject to the
confirmation of insurance as provided in the Lease. Tenant shall pay for any
and all construction work and materials performed in regard to such Tenant
Improvements, and shall keep the Building free and clear of all liens or
encumbrances relating thereto in accordance with Paragraph 10.3 of the Lease.
Construction shall otherwise be in accordance with the rules and requirements
of Paragraphs 10.1 of the Lease. Tenant's contractor shall obey all regulations
and directives of Landlord's management staff, and shall cooperate with said
staff to minimize any inconvenience and/or damage to the Building. Prior to the
start of construction, Tenant's contractor shall deposit with Landlord the sum
of $1,000.00, which Landlord shall hold as a deposit against any damages to the
Building, damage to neighboring tenants, completion of any common area or
Building punchlist items, and full compliance with all Building regulations and
directives.
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C. Tenant will pay all Monthly and Additional Rent payable hereunder,
including making such payments during any period of construction of Tenant
Improvements in any of the Premises.
14. PARKING
Subject to the provisions of the Lease relating to parking, Tenant
shall continue to have the same rights as are currently granted to Tenant under
this Lease through September 1, 1998, and thereafter, Landlord shall make
available to Tenant three (3) unreserved parking spaces for each 1,000 rentable
square feet subject to this Lease, one half in the Off-Site Parking Facilities
and one half in the On-site Parking Facilities, all at the standard rates
charged by Landlord or its contractor for the use of such spaces.
15. CROSS-DEFAULT
Tenant acknowledges and agrees that it is currently leasing other
portions of the Building pursuant to another lease between Landlord and Tenant
relating to other premises in the Building, which lease is dated for reference
purposes as of May 24, 1996 (relating to space on the 18th floor) as amended
from time to time (the "Other Premises Lease"), that any Default by Tenant
under this Lease shall be considered a Default by Tenant under the Other
Premises Lease, and that any Default By Tenant under the Other Premises Lease
shall be considered to be a Default By Tenant under this Lease. Accordingly,
this Lease is amended to add the following Subparagraph (g) to the list of
occurrences which constitute a Default by Tenant:
(g) Any Default by Tenant under the Other Premises Lease between
landlord and Tenant, as amended from time to time.
Provided that Landlord has given any notice and opportunity to cure required by
the Other Premises Lease, Landlord shall not be required to give any further
notice or offer any further opportunity to cure a Default by Tenant under the
Other Premises Lease in order to have such be considered a Default by Tenant
hereunder. Any notice given by Landlord in order to satisfy the requirements of
Other Premises Lease which meets the requirements of California Code of Civil
Procedure Section 1161 shall also satisfy the notice requirements of such
Section regarding unlawful
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detainer proceedings as to the Premises which are the subject of this Lease,
and no further notice shall be required. Tenant agrees that any Default by
Tenant under this Lease shall also be considered a Default by Tenant under the
Other Premises Lease. If there is a Default by Tenant under the Other Premises
Lease, Landlord may, but is not required to, pursue any or all rights and
remedies (separately or in combination) granted to Landlord under either such
lease in regard to default.
16. ADMINISTRATIVE AND MANAGEMENT SERVICES BY LANDLORD
In the event that, at Tenant's request, Landlord or Landlord's management
company renders any administrative or management services to Tenant for matters
which are outside the scope of Landlord's obligations under this Lease
(including, but not limited to, construction management or administration,
ordering special products, arranging extra janitorial or other services by
building staff or subcontractors, finding and engaging contractors,
subcontractors, or other goods and services providers, finding and engaging
repair persons for Tenant's equipment and property, purchasing materials or
supplying labor, and/or performing any services or providing any goods where
Landlord expends funds which are to be reimbursed by Tenant and then bills
Tenant for the cost thereof, which are referred to herein as "Extra Services"),
Landlord shall be entitled to and shall charge Tenant a fee equal to Fifteen
Percent (15%) of the cost of such matters (which fee is agreed as a reasonable
reimbursement of Landlord for its administrative time and services expended in
connection with arranging for such matters. Amounts payable under this
Paragraph shall be considered to be Additional Rent, shall be paid within
thirty (30) days of Landlord's invoice, and shall be subject to the late fees
and interest payments set forth hereunder. Tenant waives any liability on the
part of the Landlord arising out of the performance of Extra Services hereunder.
17. NOTICE ADDRESS
The notice address for Landlord pursuant to the Lease shall be changed as
follows:
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Second Amendment To Lease Page 16 of 17
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50 West San ▇▇▇▇▇▇▇▇ Associates
C/o ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Group
Attn: ▇▇▇▇▇ ▇▇▇▇, General Manager
▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
With a copy to:
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇
▇▇▇ ▇. ▇▇. ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇.
18. CONTINUING OBLIGATION
Except as expressly set forth in this Amendment, all terms and conditions
of the Lease remain in full force and effect, and all terms and conditions of
the Lease are incorporated as though set forth at length.
19. EFFECT OF AMENDMENT
This Second Amendment modifies the Lease. In the event of any conflict or
discrepancy between the Lease and/or any other previous documents between the
parties and the provisions of this Amendment, then the provisions of this
amendment shall control. The parties agree that the square footage figures set
forth herein are for reference purposes only, and that the amounts payable
hereunder will not vary on any measurements taken subsequent to the execution
hereof.
20. BROKERAGE COMMISSION
Neither party has been represented by a real estate broker in regard to the
transaction represented by this Amendment, and no brokerage commissions or
finder's fees are due in regard to the transaction. Tenant will hold Landlord
harmless and indemnify Landlord against any claim, loss, or damage, including
reasonable attorney's fees, in regard to a brokerage commission or finder's fee
claim by a broker or finder under contract with or working with Tenant.
Landlord will hold Tenant harmless and indemnify Tenant against any claim,
loss, or damage,
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including reasonable attorney's fees, in regard to a brokerage commission or
finder's fee claim by a broker or finder under contract with or working with
Landlord.
21. ENTIRE AGREEMENT
The Lease, as modified by this Second Amendment, constitutes and contains
the entire agreement between the parties, and there are no binding agreements
or representations between the parties except as expressed herein. Tenant
acknowledges that neither Landlord nor Landlord's Agents have made any legally
binding representations or warranties as to any matter except for such matters
which are expressly set forth herein, including any representations or
warranties relating to the condition of the Premises or the improvements
thereto or the suitability of the Premises or the Project for Tenant's business.
LANDLORD: TENANT:
50 West San ▇▇▇▇▇▇▇▇ Associates, a AboveNet, a California corporation
California limited partnership
By: SFG San ▇▇▇▇ Company, LLC, By: [SIG]
an Indiana limited liability -------------------------------
company, its general partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Exec. VP & CF
Inc., an Indiana corporation, its -----------------------------------
manager [Print Name and Title]
Dated: 2/24/98
----------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇▇ ▇▇▇▇▇, President
Dated:_______________________________
