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EXHIBIT 10.22
DUPLICATE ORIGINAL
CONSENT OF LANDLORD
Pursuant to a Lease Agreement dated for reference purposes as of May 2,
1998, as amended by a First Amendment to Lease dated as of August 4, 1989
(collectively referred to as the "Lease") between 50 West San ▇▇▇▇▇▇▇▇
Associates, a California limited partnership ("Landlord") and KPMG Peat Marwick
LLP (formerly Peat, Marwick, Main & Co. ("Tenant") relating to premises which
include, but are not limited to, those commonly known as ▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇▇ of Santa ▇▇▇▇▇, ▇▇▇▇▇▇
has requested that Landlord consent to Tenant's Sublease to AboveNet, a
California corporation ("Subtenant") of Suite 1000 (the "Subleased Premises"),
containing approximately 10,420 rentable square feet, on the terms and
conditions set forth in the Sublease dated March 13, 1998 and attached to this
Consent as Exhibit "A" (the "Sublease").
In consideration of ▇▇▇▇▇▇'s and Subtenant's execution of this Consent of
Landlord and agreement to the terms and conditions set forth in this Consent,
Landlord consents to the Sublease on the following terms and conditions:
1. SUBRENT: Tenant represents and warrants to Landlord that the
Sublease contains a complete and accurate statement of all rent and other
consideration received or to be received from Subtenant in regard to the
Sublease.
2. NO WAIVER: This Consent does not constitute consent to any
subsequent subletting or assignment, nor a waiver of the restriction on
assignment and subletting contained in the Lease. Any substantial modifications
in the terms of the Sublease, including but not limited to any change in the
rent or other payments made by the Subtenant or any change in the term of the
Sublease, constitutes a new sublease which requires ▇▇▇▇▇▇▇▇'s written consent.
This Consent shall not be deemed to be approval of any such modified Sublease.
3. TENANT'S PRIMARY OBLIGATIONS: Nothing herein shall release or
alter the primary obligations of Tenant under the Lease, nor shall this Consent
be deemed to create contractual obligations on the part of Landlord to the
Subtenant. By executing this Consent, Subtenant agrees to assume all
obligations of Tenant under the Lease related to the Subleased Premises arising
after the date hereof and during the term of the Sublease and to remain jointly
and severally liable therefor with ▇▇▇▇▇▇.
4. COSTS AND ATTORNEY'S FEES: This consent is conditional upon
Landlord's receipt of the Landlord's reasonable costs and attorney's fees, to
which Landlord is entitled under the Lease. Tenant shall immediately reimburse
Landlord for such fees and costs upon receipt of Landlord's statement.
5. NO EFFECT ON LEASE: In no event shall Landlord's consent to this
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Sublease be, or be construed as, a modification of the terms of the Lease, and
in the event of any inconsistency between any term of the Sublease and the
terms of the Lease, the terms of the Lease shall prevail. To the extent that
the Sublease contains any terms or provisions which purport to bind Landlord,
such terms shall be of no force or effect.
6. HAZARDOUS MATERIALS: (a) Subtenant, at its sole cost, shall comply
with all laws relating to the storage, use, and disposal of Hazardous Materials
(as defined in the Lease) that Subtenant, its agents, employees, contractors,
or invitees bring or permit to be brought on to the Subleased Premises or on
the Premises or the Property. If Subtenant does store, use, or dispose of any
Hazardous Materials, Subtenant shall notify Landlord in writing at least five
(5) days prior to their first appearance on the Subleased Premises, and unless
disclosed prior to the execution of this Consent in a response provided by
Subtenant to ▇▇▇▇▇▇▇▇'s Hazardous Materials Questionnaire or other written
disclosure, such Hazardous Materials shall not be stored, used, or disposed of
on the Subleased or Premises without Landlord's advance written approval.
Subtenant shall be subject to all obligations of Tenant under the Lease
relating to Hazardous Materials.
(b) Subtenant shall be responsible for and shall defend, indemnify, and
hold Landlord and its agents harmless from and against all claims, costs and
liabilities, including attorney's fees and costs, arising out of or in
connection with the storage, use, or disposal of Hazardous Materials in or
about the Subleased Premises, the Premises, or the Property by Subtenant, its
agents, employees, contractors, or invitees which occur prior to or after the
Effective Date, but Tenant shall remain responsible for any such matters to the
extent set forth in the Lease, and Subtenant's responsibility and duty as set
forth above shall not relieve Tenant of its responsibilities and duties
pursuant to the Lease.
7. CONSTRUCTION AND SIGNAGE: Any and all construction to be performed
by Tenant or Subtenant on the Subleased Premises shall be subject to the
advance written approval of Landlord and all other provisions relating to
construction which are set forth in the Lease. Any signage called for in the
Sublease shall be subject to Landlord's approval as per the terms of the Lease,
and subject to the procurement of approval and permits from the City of San
▇▇▇▇ if required. By approving the Sublease, Landlord shall not be deemed to
have approved any signage or construction referenced therein.
8. INSURANCE: The Subtenant shall comply with all of the provisions of
the Lease as to insurance as if it were the Tenant named thereunder, and shall
name the Landlord as an additional insured on all policies of insurance
required by the Sublease and Lease, and provide the Landlord with a documentary
proof thereof as required by
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the Lease.
9. USE: Subtenant shall use the Subleased Premises only for the uses
and for which Tenant is allowed to use the Subleased Premises pursuant to the
Lease.
10. ASSIGNMENT OF TENANT'S RIGHTS: Tenant irrevocably assigns to
Landlord, as security for the performance of each and all of Tenant's
obligations under the Lease, all rent and other consideration received or to be
received from Subtenant. Landlord, as assignee of Tenant, or a receiver for
Tenant appointed on Landlord's application, may (but is not required to)
collect such rent or other consideration, provided, however, that until and
unless Tenant commits an Event of Default under the Lease, Tenant shall have
the right to collect such rent or other consideration (subject to any
obligation set forth in the Lease whereby Tenant is to pay all or a part of
such rent or other consideration to Landlord). Such assignment shall be subject
to the following terms and conditions:
(a) Landlord may collect such rent or other consideration from
Subtenant only so long as Tenant shall continue to be in default of its
obligations under the Lease.
(b) Upon ▇▇▇▇▇▇▇▇'s written request following the occurrence of an
Event of Default under the Lease, Tenant shall execute such documents as
are reasonably requested by Landlord for the purpose of confirming to
Subtenant that Landlord has the right to collect all rent and other
consideration otherwise due to Tenant from such subtenant or assignee.
(c) Subtenant has the right and duty to pay rent or other
consideration otherwise due to Tenant directly to Landlord upon receipt
from Landlord of a declaration under penalty of perjury stating that an
Event of Default exists under the Lease, and in such event, each payment
made to Landlord shall be deemed to satisfy the obligations of Subtenant
to Tenant, but only to the extent of such payment.
(d) Subtenant's payment to Landlord pursuant to this assignment
shall not create or evidence any direct landlord tenant relationship
between Subtenant and Landlord, and Landlord may exercise all remedies to
terminate the Lease (including the termination of Subtenant's possession
of the Premises or the Subleased Premises) in the event of any Event of
Default by Tenant, notwithstanding its receipt of any payment from
Subtenant pursuant to this assignment, unless the receipt of such
payment completely cures Tenant's default. The acceptance of a
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payment from Subtenant pursuant to this assignment shall not affect
Landlord's right to its remedies with regard to all defaults remaining
uncured after such payment.
11. TERMINATION: The Sublease is and remains subject and subordinate to
the Lease, and a termination of the Lease for any reason (including but not
limited to a default of Tenant) shall terminate the Sublease.
12. BROKERAGE COMMISSIONS: ▇▇▇▇▇▇▇▇ had not 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 from Landlord 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
and arising out of this transaction.
LANDLORD: TENANT:
50 West San ▇▇▇▇▇▇▇▇ Associates, KPMG Peat Marwick LLP (formerly
a California limited partnership Peat, Marwick, Main & Co.
By: SFG San ▇▇▇▇ Company, LLC, an /s/ [SIG]
Indiana limited liability company, ---------------------------------------
its general partner
By: ▇▇▇▇▇▇ ▇▇▇▇▇ & Associates, Inc., By: [Illegible]
an Indiana corporation, ------------------------------------
its manager [Print Name and Title]
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ Dated: 4/6/98
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▇▇▇▇▇▇▇ ▇▇▇▇▇, President
SUBTENANT
Dated: 4/12/98
AboveNet, a California corporation
By:
---------------------------------- /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Dated:
------------------------------- By: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, Exec. V.P. & CFO
------------------------------------
[Print Name and Title]
Dated:
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[Rev. 3/1/98]
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