Exhibit 10.44
FOURTH AMENDMENT TO
STANDARD LEASE AGREEMENT
THIS FOURTH AMENDMENT TO STANDARD LEASE AGREEMENT (this "Amendment") is
made by and between AGBRI XXXXXX X.X., a Delaware limited partnership
("Landlord") and INTERLIANT, INC., a Delaware corporation ("Tenant"), formerly
Sage Networks, Inc., a Delaware corporation, effective this the 29/th/ day of
September, 2000 (the "Effective Date").
W I T N E S S E T H
WHEREAS, LaSalle Partners Management Limited (in its capacity as agent
for Xxxxxx Street Limited Partnership, a Delaware limited partnership)
("Fannin"), predecessor in interest to Landlord, and Wolf Communications
Company, a Texas corporation doing business as Interliant ("Wolf"), predecessor
in interest to Tenant, entered into that certain Standard Lease Agreement dated
June 11, 1995 (the "Lease Agreement"), for the lease of approximately 12,312
square feet of Agreed Rentable Area located on Floor 7 of the 0000 Xxxxxx Xxxxxx
Building ("Building") (the land on which the Building is located is more
particularly described in Exhibit B attached to the Lease Agreement), all in
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accordance with the terms, conditions, covenants and obligations contained in
the Lease Agreement; and
WHEREAS, Fannin and Wolf entered into that certain First Amendment to
Standard Lease Agreement dated effective January 18, 1996, wherein the Premises
were expanded to an aggregate of 23,260 square feet of Agreed Rentable Area on
Floor 7 of the Building;
WHEREAS, Fannin and Xxxx entered into that certain Second Amendment to
Standard Lease Agreement dated effective August 8, 1996, wherein the Premises
were expanded to an aggregate of 59,885 square feet of Agreed Rentable Area on
Floor 7 of the Building (the "Floor 7 Space"), which is currently known as Suite
700 and is comprised of 53,548 square feet of Agreed Rentable Area currently
used for general office space, as shown on the attached Exhibit A-1 (the "Floor
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7 Office Space"), and 6,337 square feet of Agreed Rentable Area currently used
as a data center and for purposes other than general office space, as shown on
the attached Exhibit A-2 (the "Floor 7 Data Space");
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WHEREAS, Landlord succeeded to the interest of Fannin;
WHEREAS, Wolf, after changing its name to Interliant, Inc., assigned
its interest in the Lease Agreement, as amended, to Tenant, formerly known as
Sage Networks, Inc.;
WHEREAS, Fannin and Xxxx entered into that certain Third Amendment to
Standard Lease Agreement dated effective May 15, 2000 (the "Third Amendment"),
wherein the Premises were expanded to include 6,155 square feet of Agreed
Rentable Area located in the Basement of the Building (the "Third Expansion
Space");
WHEREAS, beginning on the Effective Date, Tenant desires to expand the
Premises to include approximately 15,794 square feet of Agreed Rentable Area
located on Floor 22 of the Building, as shown on the attached Exhibit A-3
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(the "Fourth Expansion Space"), to be used as general office space and known as
Suite 2250, and to extend the Term of the Lease Agreement (as amended heretofore
and by this Amendment, the "Lease") with respect to all of the Floor 7 Space;
and
WHEREAS, Landlord has agreed to the requested expansion and extension
subject to the terms of this Amendment.
NOW, THEREFORE, in and for the premises contained in this Amendment and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, Landlord and Tenant agree to amend the Lease as follows:
1. Definitions. All capitalized terms used, but not defined, in this
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Amendment, have the same meaning given to such terms in the Lease.
2. Condition Precedent. Tenant's right to expand into the Fourth Expansion
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Space provided for in this Amendment shall be of no force and effect
unless and until (a) Landlord has entered into an amendment of its
lease with BNY Information Services, Inc. ("BNY"), in form and
substance acceptable to Landlord in its sole discretion, in which
amendment BNY agrees to surrender its rights to the Fourth Expansion
Space, and (b) Exxon Mobil Corporation ("Exxon") has elected, or has
been deemed to have elected, not to lease the Fourth Expansion Space
pursuant to the terms of the Exxon Lease (defined below in the attached
Rider 3). If Landlord fails to satisfy both of such conditions
(the"Conditions Precedent") on or before the date fifty (50) days after
the Effective Date (the "Cancellation Date"), then Tenant, at Tenant's
option, shall have the right to cancel Tenant's lease of the Fourth
Expansion Space if the Conditions Precedent are not satisfied within
ten (10) days after notice to Landlord given on or after the
Cancellation Date, without affecting this Amendment in any other
respect except as hereinafter provided. In the event the Conditions
Precedent are not satisfied or Tenant cancels its right to expand into
the Fourth Expansion Space pursuant to the provisions of this
paragraph, Tenant's Pro Rata Share Percentage and the Finish Allowance
shall be adjusted to take into consideration the deletion of the Fourth
Expansion Space.
3. Extension. The Initial Term of the Lease with respect to the Floor 7
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Space is extended for a period commencing on November 1, 2000, and
expiring on November 30, 2007, without extending the Third Expansion
Space Term, as such term is defined in the Third Amendment, with
respect to the Third Expansion Space. The extension with respect to the
Floor 7 Space is subject to all of the terms and conditions of the
Lease currently in effect, except as modified in this Amendment. In the
event the Third Expansion Space Term is not extended by a subsequent
amendment to the Lease, Tenant shall vacate the Third Expansion Space
on July 1, 2001, strictly in accordance with the terms and provisions
of the Lease.
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4. Expansion Space. Commencing on the Effective Date and expiring on
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November 30, 2007, Landlord leases to Tenant and Tenant leases from
Landlord the Fourth Expansion Space. The term "Premises", as defined in
Item 2 of the Basic Lease Provisions, is amended as of the Effective
Date to reflect the addition of the Fourth Expansion Space and includes
approximately 81,834 square feet of Agreed Rentable Area in the
Building, consisting of 59,885 square feet of Agreed Rentable Area on
Floor 7, 6,155 square feet of Agreed Rentable Area in the Basement, and
15,794 square feet of Agreed Rentable Area on Floor 22. The lease of
the Fourth Expansion Space is subject to all of the terms and
conditions of the Lease currently in effect, except as modified in this
Amendment. In the event Landlord determines the Conditions Precedent
can not be satisfied, Landlord shall have the right, upon notice given
to Tenant prior to Tenant's cancellation of its right of expansion
provided for in such paragraph 2 (the "Relocation Notice"), to relocate
the Fourth Expansion Space from Floor 22 to approximately 15,680 square
feet of Agreed Rentable Area, plus or minus ten percent (10%), of
comparable space on any single floor in the Building above Floor 22
(the "Relocated Space") on the same terms and provisions provided for
in this Amendment with an appropriate adjustment in the Basic Rent,
Tenant's Pro Rata Share Percentage, and Finish Allowance to reflect any
adjustment in the Agreed Rentable Area. Unless Tenant objects to the
Relocated Space as not being comparable in a notice delivered to
Landlord within five (5) business days after the date Tenant receives
the Relocation Notice, the Relocation Space shall be deemed to be
comparable to the Fourth Expansion Space on Floor 22. Effective on the
date of the Relocation Notice, the original Fourth Expansion Space
shall be deleted and replaced with the Relocated Space. In the event of
such relocation, then the Conditions Precedent shall be deemed to be
satisfied.
5. Use of the Fourth Expansion Space. Notwithstanding the provisions of
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Item 11 of the Basic Lease Provisions, the permitted use of the Fourth
Expansion Space shall be limited to general office use.
6. Rental and Other Charges.
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(a) Rent payable with respect to the Floor 7 Space shall be payable as
provided in the Lease through October 31, 2000. Rent payable with
respect to the Third Expansion Space shall continue to be payable as
provided in the Lease through and including the Third Expansion Space
Expiration Date, as such term is defined in the Third Amendment.
(b) Commencing on November 1, 2000, Basic Rent for the Floor 7 Space
shall be as follows:
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Rate Per Square Basic Basic
Rental Foot of Agreed Annual Monthly
Period Rentable Area Rent Rent
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November 1, 2000 - January 31, 2001 $ 0.00 $0.00 $0.00
February 1, 2001 - October 31, 2002 $24.00 $1,437,240 $119,770
November 1, 2002 - October 31, 2005 $26.50 $1,586,952 $132,246
November 1, 2005 - November 30, 2007 $28.00 $1,676,784 $139,732
(c) Commencing on the Fourth Expansion Space Rental Commencement Date
(defined below), Basic Rent for the Fourth Expansion Space shall be as
follows:
Rate Per Square Basic Basic
Rental Foot of Agreed Annual Monthly
Period Rentable Area Rent Rent
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RCD - April 30, 2004 $22.50 $355,368 $29,614
May 1, 2004 - November 30, 2007 $23.50 $371,160 $30,930
RCD = Fourth Expansion Space Rental Commencement Date
The Fourth Expansion Space Rental Commencement Date shall be the
earlier of (i) the date Tenant occupies any part of the Fourth
Expansion Space for purposes of conducting business, (ii) the date of
Substantial Completion, as defined in the Work Letter, of the Fourth
Expansion Space, and (iii) the date ninety (90) days after Landlord
delivers the Fourth Expansion Space to Tenant for the construction of
Tenant's improvements pursuant to the Work Letter, which delivery date
is anticipated to be November 1, 2000.
(d) Tenant's Pro Rata Share Percentage from and after the Fourth
Expansion Space Rental Commencement Date shall equal 10.436% (the
Agreed Rentable Area of the Premises divided by the Agreed Rentable
Area of the Building, expressed in a percentage). In the event the
Third Expansion Space Term either (i) terminates pursuant to the terms
of this Amendment or (ii) expires as a result of the Third Expansion
Space Term not being extended pursuant to a subsequent amendment to the
Lease approved by Landlord, the Tenant's Pro Rata Share Percentage from
the date of such termination or expiration shall be 9.65%.
(e) Tenant's Operating Expense Stop for the Floor 7 Space and Fourth
Expansion Space shall equal the actual Operating Expenses for the
calendar year 2000, grossed up in accordance with subsection 2.202 of
the Supplemental Lease Provisions (see Article 2, Supplemental Lease
Provisions), and shall include the first twelve (12) months associated
with Landlord's operation of the Approximate Garage (defined below)
after the Fourth
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Expansion Space Rental Commencement Date and the Skybridge (defined
below) after the date the Skybridge is made available to Tenant,
pursuant to subsection 2.201(b)(xv) of the Lease as amended pursuant to
paragraph 10 below.
7. Condition of Floor 7 Space and Fourth Expansion Space. Tenant has
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inspected the Floor 7 Space and Fourth Expansion Space and shall accept
the same "as is" without any agreements, representations,
understandings or obligations on the part of Landlord to perform any
alterations, repairs or improvements, except that Finish Allowance
provided for in the Work Letter attached to this Amendment as Exhibit
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C-1 (the "Work Letter"). Any construction, alterations or improvements
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made to the Floor 7 Space or the Fourth Expansion Space by Tenant shall
be performed in accordance with the terms and provisions of the Work
Letter and the Lease, including, without limitation, approval of the
plans, specifications, contractors and subcontractors and construction
of any improvements in the Floor 7 Space or Fourth Expansion Space.
8. Building. The definition of the term "Building", as defined in Item
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1.a. of the Basic Lease Provisions, is deleted in its entirety and
replaced with the following:
The "Building" is the structure commonly known as the
0000 Xxxxxx Xxxxxx Building, together with all
improvements and appurtenances, located on the land
bounded by Fannin, San Xxxxxxx, Xxxx and Clay Streets
(Block 294), Houston, Texas and more particularly
described in Exhibit B attached to the Supplemental
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Lease Provisions (the "Land"), together with all
appurtenant improvements, including, but not limited
to, any above-street pedestrian walkway ("Skybridge")
connecting the Building and the garage known as the
Xxxxxx Garage located at 0000 Xxxx Xxxxxx, Xxxxxxx,
Xxxxx.
9. Redelivery of the Premises. The second sentence of Section 1.3 of the
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Lease is deleted in its entirety and replaced with the following:
Tenant shall, within seven (7) days after the
expiration or earlier termination of this Lease, remove
from the Premises, at the sole expense of Tenant and
subject to Landlord's rights therein, including
Landlord's right to assert its lien therein, any
equipment, machinery, trade fixtures and personalty
installed or placed in the Premises by or on behalf of
Tenant. Notwithstanding the foregoing, Tenant shall
have the right, but not the obligation, to remove any
generators, chillers, fuel tanks, UPS or infrastructure
equipment which is installed or placed in the Premises
by or on behalf of Tenant. Tenant shall have no
obligation to remove any other improvements made to the
Premises by or on behalf of Tenant. Notwithstanding
anything to the contrary contained herein, Landlord may
claim as its property any of the Power Equipment, as
such term is defined in the Work Letter, in which event
Tenant shall have no obligation to remove same. During
the last one hundred twenty (120) days of the Lease
term, Landlord shall advise Tenant in writing, within
ten (10) days of Tenant's notice to Landlord requesting
same, whether
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Landlord has an interest in retaining any or all of the
Power Equipment. Failure by Landlord to notify Tenant
within such ten (10) day period shall be deemed an
election by Landlord to claim all of the Power
Equipment as its property. If Landlord advises Tenant
in writing of any of the Power Equipment that it will
not claim as its property, Tenant may, at its sole
option and expense, remove such items upon or prior to
the termination of this Lease.
10. Operating Expenses. Clause (xv) of subsection 2.201(b) of the Lease is
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deleted in its entirety and replaced with the following:
(xv) maintenance, repair, repaving and operating costs
associated with the Garage, the garage approximate to
the Building in which Landlord shall provide Tenant
parking spaces (the "Approximate Garage"), and the
Skybridge, if any;
11. Additional Charges. Subsection 2.201 of the Lease is amended to add as
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subsection (f) the following:
(f) "Additional Charges" shall mean (i)$1,971 per month
from July 1, 2000 through June 30, 2001 (and any
extension of the Third Expansion Space Term) for
the 215 linear feet of 2 inch conduit from the
Floor 7 Space to the Third Expansion Space, as
shown on the attached Exhibit B (the "Existing
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Conduit"), and (ii) the then current prevailing
market rate charged by Landlord per linear foot of
conduit in the Building for each linear foot of
conduit installed or used by Tenant in the
Building for data, voice, computer,
telecommunication or other communication cable
(whether installed horizontally or vertically, and
whether to or from or in the Premises including,
without limitation, between portions of the
Premises, whether on one or more floors, in common
areas above ceiling tiles, in riser closets or
from any penetration in the Building and
specifically excluding any other uses of conduit
including, without limitation, conduits used for
electrical wiring, fuel tanks or the Power
Equipment), which in no event will be less than
the current rate of$9.17 per month ($110 per year)
per linear foot for conduit less than 3 inches in
diameter and$11.67 per month ($140 per year) per
linear foot for conduit at least 3 inches, but no
larger than 5 inches, in diameter. Notwithstanding
the foregoing, the rate charged by Landlord for
the first such conduit larger than 3 inches, but
no larger than 5 inches, installed by Tenant
between the Floor 7 Space and the Fourth Expansion
Space shall be$4.17 per month ($50 per year) per
linear foot. For purposes of clarity, the
foregoing Additional Charges described in clause
"(ii)" above shall only apply to linear feet of
conduit running from the Floor 7 Space, the Third
Expansion Space, the Fourth Expansion Space, the
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Roof Space or the Fuel Tank Space to any other of
such spaces or another location in the Building,
but in no event shall it apply to any linear feet
of conduit within the Floor 7 Space, the Third
Expansion Space, the Fourth Expansion Space, the
Roof Space or the Fuel Tank Space.
12. Payment Obligations. The first sentence of subsection 2.202 of the
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Lease is deleted in its entirety and replaced with the following:
In addition to the Basic Rent specified in this Lease,
Tenant shall pay to Landlord (a) the Additional Charges
monthly on the first of each month during the term of
this Lease after receipt of an invoice therefor and (b)
the Additional Rent, in each calendar year or partial
calendar year during the term of this Lease, payable in
monthly installments as hereinafter provided.
13. Rent Defined. The first sentence of Section 2.3 of the Lease is deleted
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in its entirety and replaced with the following:
Basic Rent, Additional Rent, Additional Charges and
all other sums (whether or not expressly designated
as rent) required to be paid to Landlord by Tenant
under this Lease (including, without limitation,
any sums payable to Landlord under any addendum,
exhibit, rider or schedule attached hereto) shall
constitute rent and are sometimes collectively
referred to as "Rent."
14. Net of Electricity. On and after the first Conversion Date (defined
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below), the term Premises as used in the first sentence of subsection
5.103(a) of the Lease shall not include the Floor 7 Data Space and
Tenant shall be solely responsible for the cost of electricity
delivered to and consumed within the Floor 7 Data Space. As used in
this Amendment, the term "Conversion Date" shall mean the date Tenant
commences using any applicable portion of the Floor 7 Office Space for
any purpose other than general office use, each such converted portion
having its applicable Conversion Date. The penultimate sentence of
subsection 5.103(b) of the Lease is deleted in its entirety and
replaced with the following:
As a part of Additional Rent, Tenant shall pay Landlord
for (i) the cost of the electricity consumed through
the Submetered Lines within the Floor 7 Data Space
during any calendar month on and after the first
Conversion Date, which shall equal the kilowatt hours
of electricity consumed through the Submetered Lines
within the Floor 7 Data Space multiplied by the then
current cost per kilowatt hour of electricity consumed
by the Building, including, without limitation, demand
charges (the "Cost Per Kilowatt Hour") and (ii) the
Excess Consumption Cost, which shall equal the kilowatt
hours of Excess Consumption multiplied by the Cost Per
Kilowatt Hour (the aggregate of such costs being the
"Monthly Submetered Electrical Costs").
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15. Net of Heat and Air Conditioning and Electricity. Notwithstanding the
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terms and provisions of Sections 5.1 of the Lease, to the contrary,
Landlord shall not furnish, or cause to be furnished, HVAC and
Electricity (defined below) to any portion of the Floor 7 Office Space
converted, whether in one or more conversions, by Tenant for use as
data center space or for use other than general office on and after the
applicable Conversion Date (each portion of the Floor 7 Office Space so
converted, on and after such conversion, being a "Converted Space") or
the Equipment Space (defined below) on or after the Equipment Space
Rental Commencement Date. As used in this paragraph, the term "HVAC and
Electricity"shall mean the heat and air conditioning and electrical
services and utilities provided for in subsection 5.102 and 5.103 of
the Lease, including, without limitation, chilled water, UPS power, and
alternate electrical power supply from the Building Backup Generators.
On and after the dates set forth above, Tenant shall procure
electricity for the Equipment Space and the Converted Space, at
Tenant's sole cost and expense, from the supplier of electricity to the
Building, which is currently Reliant Energy/HL&P. To the fullest extent
permitted by applicable laws, ordinances, regulations and rules,
Landlord shall have the continuing right, upon thirty (30) days written
notice from Landlord to Tenant, to change the supplier of electricity
to the Building, in which event Tenant shall change its electricity
supplier to the supplier selected by Landlord, so that such electricity
supplier for the Equipment Space and the Converted Space is always the
same as for the Building. Notwithstanding the foregoing, Tenant shall
not be obligated to change its electricity supplier more than seven (7)
times unless Landlord, at its option, pays for Tenant's costs resulting
from such change of supplier in excess of the seventh change. Any
construction required to enable Tenant to so procure such electricity,
including, by way of example, installation of separate meters, cabling,
or wiring, shall be effected at Tenant's sole cost and expense and in
strict compliance with the requirements of the Work Letter and the
Lease. On and after the first Conversion Date, Tenant shall have the
right upon notice to Landlord to terminate Landlords obligation to
furnish, or cause to be furnished, HVAC and Electricity to the Floor 7
Data Space. At the end of each calendar year, commencing with the year
in which the first Conversion Date occurs, Tenant shall be entitled to
receive a credit against Tenant's pro rata share of Operating Expenses
(the "Electrical Cost Credit") equal to the product obtained by
multiplying (A) the Per Square Foot Electrical Cost Excess (defined
below) times (B) the aggregate square feet of Agreed Rentable Area in
the Floor 7 Data Space and the Converted Space times (C) the Office
Factor (defined below), but not to exceed Tenant's pro rata share of
the Operating Expenses payable to Landlord as Additional Rent pursuant
to subsection 2.201(a)(i) of the Lease; provided, however, if the first
or any subsequent Conversion Date occurs on a date other than the first
day of a calendar year, then the calculation with respect to the
applicable space shall be prorated on a daily basis from the applicable
Conversion Date for the year in question. Landlord shall include the
Electrical Cost Credit in the annual statement of Addition Rent
delivered to Tenant in accordance with subsection 2.203 of the Lease
and shall credit or pay the Electrical Cost Credit in the same manner
as an overpayment or underpayment of Additional Rent pursuant to such
subsection. As used in this Amendment, the term "Per Square Foot
Electrical Cost Excess" shall mean (i) the actual electrical cost used
to determine Operating Expenses for the calendar year in question in
excess of the electrical cost used to determine Tenant's Operating
Expense Stop divided by (ii) the Agreed Rentable Area of the Building;
and the term "Office Factor" shall mean
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the rentable square feet of the Building without the add-on factor
(that is the Agreed Rentable Area of the Building less the Common Area,
which is currently 603,790 square feet) divided by the Agreed Rentable
Area of the Building (which is currently 784,143 square feet), which
Landlord and Tenant acknowledge is currently 77%.
16. Administrative Fee. The administrative fee provided for in subsection
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5.107 of the Lease is deleted and replaced with an administrative fee
equal to fifteen percent (15%) of such costs.
17. Installations of Conduit. Tenant shall not install, or permit any third
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party to install on its behalf, any conduit in the Building without
first obtaining Landlord's written approval. In addition to other
considerations, Landlord's approval of any requested conduit shall be
limited by the space then available for the installation of any
requested conduit, as determined by Landlord in its sole discretion,
without Landlord having any obligation to provide any additional space
for such installation. Notwithstanding the foregoing, Landlord shall
approve Tenant's reasonable requests for conduit required to connect
Tenant's equipment installed in the Equipment Space to the Premises,
subject to the other provisions of this Amendment and the Lease.
Landlord hereby approves the Existing Conduit.
18. Lease Cancellation Options. Section 13.7 of the Lease is deleted in its
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entirety and shall no longer be of any force and effect.
19. Building Infrastructure Services. In addition to the Fourth Expansion
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Space, Tenant shall lease from Landlord (i) the space designated by
Landlord on the low rise roof area of the Building, as described on the
attached Exhibit A-4, for the installation and operation of up to four
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(4) generators, up to four (4) chillers, and related equipment (the
"Roof Space") and (ii) approximately 1,605 square feet of Agreed
Rentable Area located in the Basement of the Building, as shown on the
attached Exhibit A-5, or such lesser amount of such space as required
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for the installation and operation of up to two (2) diesel fuel tanks
no larger than 10,000 gallons each (the "Fuel Tank Space"). From and
after the date of Landlord's designation of the Roof Space or final
determination of the Fuel Tank Space, the Roof Space and Fuel Tank
Space (together, the "Equipment Space") shall become a part of the
Premises, as such term is defined in Item 2 of the Basic Lease
Provisions. Commencing on the Equipment Space Rental Commencement Date
(defined below), Tenant shall pay Landlord annual rent for the
Equipment Space calculated at$15.00 per square foot of Agreed Rentable
Area in the Fuel Tank Space, such rent to be paid monthly in the same
manner as Basic Rent is paid under the terms of the Lease. The
Equipment Space Rental Commencement Date shall be the earlier of (i)
the date eighteen (18) months after the Effective Date and (ii) the
date of Substantial Completion as such term shall be defined in the
Equipment Space Work Letter (defined below). If Tenant for any reason
fails (i) to commence construction of Tenant's improvements in the
Equipment Space on or before the date nineteen (19) months after the
Effective Date or (ii) after commencing such construction thereafter
fails to diligently and continuously pursue Substantial Completion as
such term is defined in the Equipment Space Work Letter, Landlord shall
have the right to terminate Tenant's lease of the Equipment Space,
without liability to Tenant and without affecting the Lease in any
other respect, if such failure is not cured within thirty (30) days
after written notice from Landlord
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to Tenant. In addition, if Landlord provides Tenant with notice of
Tenant's failure to diligently and continuously pursue Substantial
Completion on more than two (2) occasions, Tenant's subsequent failure
shall, at Landlord's option, be deemed an incurable event. Tenant shall
accept the Equipment Space "as is", without any agreements,
representations, understandings or obligations on the part of Landlord
to perform any alterations, repairs or improvements, (including,
without limitation, the cost of any structural support required to
support any equipment installed in the Equipment Space) or provide any
allowances or inducements with respect to the applicable Equipment
Space other than the Finish Allowance provided for in the attached Work
Letter. Any construction, alterations or improvements made to the
Equipment Space, including, without limitation, any such structural
support, shall be performed by Tenant, at Tenant's sole cost and
expense, in strict compliance with the terms and provisions of the
Lease and the requirements of a work letter to be entered into between
Landlord and Tenant substantially in the form of the attached Work
Letter, except as otherwise provided to the contrary in this paragraph
(the "Equipment Space Work Letter"). The Equipment Space Work Letter
shall include, without limitation, provisions for the approval of the
plans, specifications, contractors and subcontractors, construction of
any improvements in the Equipment Space, including, without limitation,
the aesthetics of the enclosure of Tenant's equipment located in the
Roof Space (the "Roof Enclosure") The Equipment Space Work Letter shall
not provide for (i) any Construction Plans Review Fees or Construction
Management Fee, as such terms are defined in the attached Work Letter,
or (ii) any allowances or inducements in addition to any unused portion
of the Finish Allowance provided for in the attached Work Letter. Such
improvements shall include, without limitation, pumps and piping to
provide fuel to the Roof Space from the Fuel Tank Space and the Roof
Enclosure. Tenant shall have the right to install gelcell backup
batteries in an area of the Floor 7 Space approved by Landlord in
writing, which approval shall not be unreasonably delayed. Landlord
shall have the right to approve the configuration, placement,
installation, connection, and type of generators, fuel tank, batteries,
and other equipment that will be installed by Tenant in the Premises,
which approval shall not be unreasonably delayed. Tenant shall be
responsible for and shall pay all costs and expenses of providing,
installing, maintaining, testing and repairing such equipment.
20. Renewal Option. By extending the Initial Term as provided for in this
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Amendment, Tenant has exercised Tenant's renewal option set forth in
Rider 1 of the Lease. Therefore, Rider 1of the Lease is deleted in its
entirety and replaced with the attached Rider 1, which is incorporated
into this Amendment for all purposes.
21. Subordinated Right of Opportunity. By leasing the Fourth Expansion
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Space, Tenant has exercised Tenant's right of opportunity and first
offer set forth in Rider 3 of the Lease. Therefore, Rider 3 of the
Lease is deleted in its entirety and replaced with the attached Rider
3, which is incorporated into this Amendment for all purposes.
22. Termination and Relocation Options. Paragraphs 10(b) and 10(c) of
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the Third Amendment are each deleted in their entirety and shall no
longer be of any force and effect.
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23. Parking. Paragraph 1 of the Garage Parking Agreement attached to the
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Lease as Exhibit E is deleted in its entirety and replaced with the
following:
1. Parking Spaces. So long as the Lease shall remain in
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effect, Tenant or persons designated by Tenant
shall have the right (but not the obligation)
during the Term of this Lease to rent up to ten
(10) unreserved parking spaces. In the event
Tenant fails to use any of such parking space for
a period in excess of one hundred eighty (180)
days, Landlord shall have the right to terminate
Tenant's right to any such parking space upon
notice to Tenant. Upon such notice, Landlord's
obligation to provide such terminated parking
spaces shall terminate. Tenant's obligation to pay
for such terminated parking spaces shall terminate
upon Tenant's return of any key-card, sticker, or
other identification or entrance enabling device
provided by Landlord. Landlord shall have no
obligation to provide Tenant, and Tenant shall
have no right to, any parking spaces that are so
terminated by Landlord.
On the Effective Date, the rental rate for unreserved parking
spaces in the Building is$140.00 per month. In addition,
Landlord shall provide parking to Tenant in the Approximate
Garage, commencing on the Fourth Expansion Space Rental
Commencement Date, under the terms and conditions set forth
in the Parking Agreement attached to this Amendment as
Exhibit E-1.
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Broker. Tenant represents and warrants that it has not been represented
------
by any broker or agent in connection with the negotiation or execution
of this document except Xxxxxxx Realty Corporation ("Xxxxxxx"). Tenant
shall indemnify and hold harmless Landlord from and against all claims
(including costs of defense and investigation) of any other broker or
agent or similar party claiming to have represented Tenant in
connection with this Amendment. Landlord shall indemnify and hold
harmless Tenant from and against all claims (including costs of defense
and investigation) of any broker or agent or similar party claiming to
have represented Landlord in connection with this Amendment. Landlord
shall be solely liable for any fee or commission due to be paid to
Xxxxxxx under the Commission Registration Agreement dated June 14,
2000, entered into between Landlord and Xxxxxxx for its services
rendered in connection with this Amendment.
25. Consent to Assignment or Sublease. The last two sentences of Section
---------------------------------
11.5 of the Lease are deleted and replaced with the following:
However, notwithstanding the foregoing and for purposes
of this Lease, the following shall not be considered
assignments prohibited hereunder or otherwise require
Landlord's consent: (1) the dissolution of Tenant (if
Tenant is a partnership) and immediate reconstitution
into a partnership or the addition or withdrawal of
partners, or the reallocation of interests among
partners of Tenant;
11
(2) the dissolution of Tenant (if Tenant is a corporation) and
the immediate reconstitution of Tenant into a new corporation,
(3) the addition of stockholders and the withdrawal of
stockholders in the normal course of Tenant's business, or (4)
the assignment of this Lease to any successor of Tenant (A) into
which or with which Tenant is merged or consolidated, (B) arising
from the transfer of Tenant's interest under this Lease made in
conjunction with the transfer of a majority of the assets and
liabilities of Tenant, or (C) arising from the acquisition of the
assets and liabilities of another corporation by Tenant so long
as (i) in each of the circumstances described in (1) through (3)
above the surviving partnership, corporation or assignee shall
assume all obligations of Tenant hereunder and the surviving
---
partnership, corporation or assignee can demonstrate to
Landlord's reasonable satisfaction the same or better financial
strength as possessed by Tenant on the date hereof and (ii) in
the circumstance described in (3)(C) above Tenant shall
thereafter include a majority of the partners that were partners
(in the case of a partnership) or include the same controlling
shareholders (in the case of a corporation) of Tenant during the
twelve (12) month period immediately prior to the time of such
event. The addition and withdrawal of shareholders in the
corporation which is Tenant shall not be considered an assignment
prohibited hereunder so long as, both before and after such
addition or withdrawal, Tenant is an entity whose outstanding
stock is listed on a recognized security exchange. Further,
Landlord agrees to not unreasonably withhold, condition or delay
its consent to any proposed sublease or assignment.
26. Non-Disturbance Agreement. Section 12.2 of the Lease is amended to add
-------------------------
at the end of such Section the following:
Landlord shall use commercially reasonable efforts, at Tenant's
cost, to obtain Landlord's mortgagee's then current form of non-
disturbance agreement for the benefit of Tenant.
27. Notice. Tenant's address for notices due under this Lease, as set forth
------
in Item 14 of the Basic Lease Provisions, is deleted and replaced with
the following:
Interliant, Inc.
Two Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
28. Partial Termination Option. On not less than thirty (30) days notice
--------------------------
given to Landlord by Tenant on or after the Effective Date, Tenant may
terminate Tenant's lease of the Third Expansion Space, without
affecting the Lease in any other respect, provided each of the
12
following conditions are fully satisfied: (a) Tenant is not in default
under the Lease (including the occurrence of an event which with
notice, lapse of time or both would become a default under the Lease)
on the date of such termination and (b) Tenant shall fully comply with
all obligations under the Lease respecting the Third Expansion Space
through the date of such termination, including, without limitation,
those provisions relating to the condition of the Third Expansion Space
and removal of Tenant's personal property therefrom upon termination or
expiration to the Lease.
29. Miscellaneous. This Amendment contains the parties' entire agreement
regarding the subject matter covered by this Amendment and supersedes
all prior correspondence, negotiations, and agreements, if any, whether
oral or written, between the parties concerning such subject matter.
There are no contemporaneous oral agreements, and there are no
representations or warranties, between the parties not contained in
this Amendment. The terms and provisions of the Lease shall remain in
full force and effect, and the Lease, shall be binding upon and shall
inure to the benefit of the parties hereto, their successors and
permitted assigns.
EXECUTED EFFECTIVE as of the day first set forth above.
Landlord: Tenant:
-------- ------
AGBRI XXXXXX X.X., a Delaware limited INTERLIANT, INC., a Delaware
partnership corporation
By: Xxxxxxx West Investment
Corporation, a Delaware corporation, By: /s/ Xxxxxxx X. XxXxxxxx,
its authorized agent ---------------------------
Xxxxxxx X. XxXxxxxx,
Vice President, Finance
By: /s/ [ILLEGIBLE]^^
-------------------------
Name: [ILLEGIBLE]
-----------------------
Title: CEO
----------------------
13
TABLE OF EXHIBITS AND RIDERS
TO
FOURTH AMENDMENT TO STANDARD LEASE AGREEMENT
Exhibit X-0 Xxxxx 0 Xxxxxx Xxxxx
Xxxxxxx X-0 Xxxxx 0 Data Space
Exhibit A-3 Fourth Expansion Space
Exhibit A-4 Low Rise Roof Area
Exhibit A-5 Fuel Tank Space
Exhibit B Description of Conduit
Exhibit C-1 Work Letter
Schedule 1 Improved Portion of the Fourth Expansion Space
Schedule 2 Unimproved Portion of the Fourth Expansion Space
Exhibit E-1 Parking Agreement
Rider 1 Renewal Option, Single Renewal Term
Rider 3 Subordinate Right of Opportunity
Schedule 1 Floor 22 Opportunity Expansion Space
Schedule 2 Floor 23 Opportunity Expansion Space
Schedule 3 Floor 24 Opportunity Expansion Space
14
Exhibit 10.44
EXHIBIT A-1
FLOOR 7 OFFICE SPACE
[FLOOR PLAN APPEARS HERE]
EX.10.44
EXHIBIT X-0
XXXXX 0 XXXX SPACE
[FLOOR PLAN APPEARS HERE]
EX.10.44
EXHIBIT A-3
FOURTH EXPANSION SPACE
[FLOOR PLAN APPEARS HERE]
EX.10.44
EXHIBIT A-4
LOW RISE ROOF AREA
[FLOOR PLAN APPEARS HERE]
EX.10.44
EXHIBIT A-5
FUEL TANK SPACE
[FLOOR PLAN APPEARS HERE]
EX.10.44
EXHIBIT B
DESCRIPTION OF CONDUIT
[GRAPHIC APPEARS HERE]
EXHIBIT C-1
WORK LETTER
This Exhibit is attached to and a part of that certain Fourth Amendment
to Standard Lease Agreement dated as of September 29, 2000 (the "Fourth
Amendment"), executed by and between AGBRI XXXXXX X.X. ("Landlord"), a Delaware
limited partnership, and INTERLIANT, INC. ("Tenant"), a Delaware corporation.
Any capitalized term not defined herein shall have the meaning assigned to it in
the Lease, as such term is defined in the Fourth Amendment. Landlord and Tenant
agree as follows:
1. Plans.
-----
a. Construction Plans. Tenant's space planner and engineer, at Tenant's
------------------
expense, will prepare construction plans (such construction plans,
when approved, and all changes and amendments thereto agreed to by
Landlord and Tenant in writing, are herein called the "Construction
Plans") for all of Tenant's improvements requested pursuant to the
Space Plan (collectively, "Tenant's Improvements"), including the
design of and color scheme for the Floor 7 Space and Fourth Expansion
Space, a product specification list for all materials, products,
finishes and work that Tenant desires that are not Building standard,
complete detail and finish drawings for partitions, chain-link
fencing, doors, reflected ceiling, telephone outlets, conduits,
electrical switches and outlets and Building standard heating,
ventilation and air conditioning equipment and controls. Within
fifteen (15) business days after Construction Plans are delivered to
Landlord, Landlord shall approve (which approval shall not be
unreasonably withheld or delayed) or disapprove same in writing and if
disapproved, Landlord shall provide Tenant and Tenant's space planner
and engineer specific reasons for disapproval. The foregoing process
shall continue until the Construction Plans are approved by Landlord.
Tenant shall pay Landlord a fee for the review of the Construction
Plans by Landlord's engineers and architects ("Construction Plans
Review Fee") equal to Landlord's reasonable actual out of pocket costs
to such third party vendors.
b. Compliance With Disability Acts. Tenant shall cause the construction
-------------------------------
of Tenant's Improvements to be completed such that Tenant, the
Premises and Tenant's Improvements (as constructed) will be in
compliance with the Disability Acts. TENANT SHALL INDEMNIFY AND HOLD
HARMLESS LANDLORD FROM AND AGAINST, AND REIMBURSE LANDLORD FOR AND
WITH RESPECT TO, ANY AND ALL CLAIMS, LIABILITIES AND
EXPENSES(INCLUDING, WITHOUT LIMITATION REASONABLE ATTORNEYS' FEES AND
EXPENSES) INCURRED BY OR ASSERTED AGAINST LANDLORD BY REASON OF OR IN
CONNECTION WITH ANY VIOLATION OF THE DISABILITY ACTS BY TENANT AND/OR
TENANT'S IMPROVEMENTS OR THE PREMISES NOT BEING IN COMPLIANCE WITH THE
DISABILITY ACTS.
C-1-i
c. Changes to Approved Plans. If any re-drawing or re-drafting of any of
-------------------------
the Space Plan or the Approved Construction Plans is necessitated by
Tenant's requested changes (all of which shall be subject to
Landlord's approval), the expense of any such re-drawing or re-
drafting required in connection therewith, Landlord's review of such
redrawing and/or redrafting, and the expense of any work and
improvements necessitated by such re-drawing or re-drafting will be
charged to and paid by Tenant.
d. Coordination of Planners and Designs. It shall be Tenant's
------------------------------------
responsibility to cause necessary coordination of its agents' efforts
with Landlord's agents to ensure that no delays are caused to either
the planning or construction of the Tenant's Improvements.
2. Construction and Costs of Tenant's Improvements.
-----------------------------------------------
a. Completion of Tenant's Improvements. Tenant shall have complete
-----------------------------------
responsibility for all aspects of the construction of Tenant's
Improvements and the proper and timely completion of Tenant's
Improvements in accordance with this Work Letter. Tenant shall cause
all of the Tenant's Improvements to be substantially completed as
expeditiously as reasonably possible in accordance with the approved
Construction Plans.
b. Costs of Tenant's Improvements. Tenant shall construct the Tenant's
------------------------------
Improvements at Tenant's sole cost and expense; provided, however,
Landlord shall provide Tenant with an allowance of (i) up to$14.25 per
square foot ($853,361.25) of Agreed Rentable Area of the Floor 7 Space
(the "Floor 7 Space Finish Allowance"), plus (ii) up to $10.00 per
square foot of Agreed Rentable Area ($100,080.00) in the portion of
the Fourth Expansion Space shown on Schedule 1 attached hereto and
incorporated herein for all purposes (the "Improved Portion Finish
Allowance") plus (iii) up to$15.00 per square foot of Agreed Rentable
Area ($86,790.00) in the portion of the Fourth Expansion Space shown
on Schedule 2 attached hereto and incorporated herein for all purposes
(the"Unimproved Portion Finish Allowance"). The Floor 7 Space Finish
Allowance, Improved Portion Finish Allowance and Unimproved Portion
Finish Allowance are referred to herein, collectively, as the "Finish
Allowance." The Finish Allowance shall be disbursed by Landlord, from
time to time upon Landlord's receipt of satisfactory evidence of
appropriate expenditures, for payment of the contract sum required to
be paid to the general contractor engaged to construct Tenant's
Improvements (the "Contract Sum") and for Tenant's purchase of any
generator, fuel tank and related conduit, and/or electric transformer
designated by Tenant in writing to be purchased with the Finish
Allowance and thereafter purchased with the Finish Allowance and
installed in the Premises in accordance with the terms of the Fourth
Amendment (the "Power Equipment"). In addition, Tenant may use the
Finish Allowance to pay the Construction Management Fee (defined
below) and the Construction Plans Review Fee, in which event Landlord
shall release such portion of the Finish Allowance as requested by
Tenant. Tenant shall pay Landlord a construction management fee
C-1-ii
equal to five percent (5%) of the Contract Sum but in no event more
than $60,000.00 (the "Construction Management Fee"). In computing the
Construction Management Fee, the purchase cost of equipment for use by
Tenant in the Premises shall not be included in the Contract Sum. The
Construction Management Fee is in addition to and shall be invoiced
separately from the Construction Plans Review Fee, which invoice for
the Construction Management Fee will be sent to Tenant only after
Substantial Completion. Tenant's failure to pay the Construction
Management Fee or Construction Plans Review Fee within ten (10) days
after Landlord's delivery to Tenant of the invoice therefor shall
constitute default under the Lease unless Tenant has requested
Landlord pay same out of the Finish Allowance prior to the end of such
ten (10) days. Any unused Finish Allowance shall be retained by
Landlord.
3. Tenant's Contractor.
-------------------
a. Tenant shall select a general contractor from Landlord's list of
approved contractors (the "Tenant's Contractor"). Landlord approves
Xxxx Computer Environments, Inc. as Tenant's construction consultant.
Tenant's Contractor shall (and its contract shall provide that it
shall):
(1) be capable of working in harmony with the Landlord's space
planners, architects, engineers, contractors, workmen,
mechanics, or other agents or independent contractors in the
performance of their work ("Landlord's Agents") and shall
comply with such reasonable rules and regulations as may be
promulgated by Landlord;
(2) maintain such payment and performance bonds and insurance in
force and effect as may be reasonably requested by Landlord
or as required by applicable law; and
(3) use reasonable efforts to reach an understanding with
Landlord's Agents as to the conduct of their work, including
but not limited to those matters relating to hoisting,
Building systems, systems interfacing, clean-up, use of
temporary utilities, protection of installed materials or
equipment, sanitary facilities, temporary heating, lighting
and cooling and access to the Premises (it being understood
that the Tenant's Contractor shall arrange with and pay to
Landlord's Agents an amount, if any, negotiated by such
parties in good faith, with respect to such functions and
services).
b. Tenant's Contractor shall use only subcontractors pre-approved by
Landlord for all mechanical, electrical, plumbing or fire protection
work within the Building. Landlord and Tenant agree that only the
Building approved electrical contractor shall be the electrical
subcontractor (currently Xxxx Electric).
C-1-iii
c. Prior to the Fourth Expansion Space Rental Commencement Date, Tenant,
Tenant's Contractor and other authorized representatives of Tenant
shall have the right, during normal business hours, to enter upon the
Fourth Expansion Space for the purposes of preparing it for
construction and for construction of Tenant's Improvements. After-
hours access to the Building, the Fourth Expansion Space and the
Building's systems, as required for construction of Tenant's
Improvements in the Fourth Expansion Space, will require prior
coordination and approval by Landlord. LANDLORD SHALL NOT BE LIABLE
FOR ANY INJURY, LOSS OR DAMAGE TO ANY OF TENANT'S INSTALLATIONS OR
DECORATIONS AND NOT INSTALLED BY LANDLORD UNLESS SUCH LIABILITY
RESULTS FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LANDLORD'S
EMPLOYEES OR AGENTS. TENANT SHALL INDEMNIFY AND HOLD HARMLESS LANDLORD
AND LANDLORD'S AGENTS FROM AND AGAINST AND REIMBURSE LANDLORD FOR AND
WITH RESPECT TO, ANY AND ALL COSTS, EXPENSES, CLAIMS, LIABILITIES AND
CAUSES OF ACTION ARISING OUT OF OR IN CONNECTION WITH WORK PERFORMED
IN THE FLOOR7 SPACE OR THE FOURTH EXPANSION SPACE BY OR ON BEHALF
OF TENANT EXCEPT IF SAME RESULTS FROM THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF LANDLORD'S EMPLOYEES OR AGENTS. Such entry into the
Fourth Expansion Space by Tenant and the Tenant's Contractor pursuant
to this Section 3 shall be deemed to be under all of the terms,
---------
covenants, provisions and conditions of the Lease except the covenant
to pay Rent. Landlord is not responsible for the function and
maintenance of Tenant's Improvements.
4. Substantial Completion. The terms "Substantial Completion" and
----------------------
"Substantially Complete," as applicable, shall mean the earlier of (i)
the sixty-first (61st) day following delivery of the Fourth Expansion
Space to Tenant for construction of Tenant's Improvements, or (ii) the
date that Tenant's Improvements are sufficiently completed in
accordance with the Construction Plans so that Tenant can reasonably
use the Fourth Expansion Space for the Permitted Use (as described in
Item 11 of the Basic Lease Provisions) as determined by Landlord and
------- ----------------------
The Xxxxxxxxx Sears Group, Inc. When Landlord and The Xxxxxxxxx Sears
Group, Inc. consider Tenant's Improvements to be Substantially
Complete, Landlord's representative and Tenant's representative shall
conduct a walk-through of the Premises.
5. Construction Representatives. Landlord's and Tenant's representatives
----------------------------
for coordination of construction and approval of change orders will be
as follows, provided that either party may change its representative
upon written notice to the other:
LANDLORD'S REPRESENTATIVE:
NAME Xxxx Xxxxxxx
ADDRESS 0000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxx 00000
PHONE 000-000-0000
C-1-iv
TENANT'S REPRESENTATIVE:
NAME Xxxx Xxxxxxx
-------------------------------
ADDRESS 00 Xxxxxxxxx Xxxxxx Xxxx
-------------------------------
Xxxxxxx, XX 00000-0000
-------------------------------
PHONE (000) 000-0000
-------------------------------
C-1-v
EX.10.44
SCHEDULE 1
Improved Portion of the Fourth Expansion Space
[FLOOR PLAN APPEARS HERE]
EX.10.44
SCHEDULE 2
Unimproved Portion of the Fourth Expansion Space
[FLOOR PLAN APPEARS HERE]
EXHIBIT E-1
PARKING AGREEMENT
RESERVED AND NON-RESERVED PARKING SPACES
This Exhibit is attached to and a part of that certain Fourth Amendment
to Standard Lease Agreement dated as of September 29, 2000 (the "Fourth
Amendment"), executed by and between AGBRI XXXXXX X.X. ("Landlord"), a Delaware
limited partnership, and INTERLIANT, INC. ("Tenant"), a Delaware corporation.
Any capitalized term not defined herein shall have the meaning assigned to it in
the Lease, as such term is defined in the Fourth Amendment. Landlord and Tenant
agree as follows:
1. Parking Spaces. So long as the Lease shall remain in effect and subject to
--------------
the terms and conditions set forth in this Exhibit, Tenant or persons
designated by Tenant (each such person, a "Xxxxxx") shall have the right
(but not the obligation), commencing on the Fourth Expansion Space Rental
Commencement Date, to rent on (i) a reserved basis up to thirty-three (33)
parking spaces (the "Reserved Parking Spaces") in the Approximate Garage
during the term of this Lease and (ii) an unreserved and non-exclusive
basis up to eighty (80) parking spaces (the "Unreserved Parking Spaces") in
the Approximate Garage during the term of the Lease. (The Reserved Parking
Spaces and Unreserved Parking Spaces are referred to, collectively, as the
"Parking Spaces.")
2. Parking Rent. The rent ("Parking Rent") for the Parking Spaces shall be the
------------
rates from time to time designated by Landlord as standard for Landlord's
parking spaces in the Approximate Garage for tenants of the Building. On
the Effective Date, Landlord's current rates in the Approximate Garage for
tenant's of the Building are$100.00 for each Unreserved Parking Space
and$150.00 for each Reserved Parking Space. Landlord shall provide Tenant
at least thirty (30) days notice of any change in the above rates in the
Approximate Garage and the giving of such notice shall be deemed an
amendment to this Exhibit and Tenant shall thereafter pay Parking Rent
adjusted according to the new rates. Tenant shall have the right to
terminate up to all or any number of the Reserved Parking Spaces or the
Unreserved Parking Spaces then remaining under lease to Tenant, as the case
may be, if Landlord adjusts the Parking Rent for the Reserved Parking
Spaces or the Unreserved Parking Spaces to an amount in excess of the
Average Rent (defined below) in any twelve (12) month period, commencing
with the first twelve (12) months after the Fourth Expansion Space Rental
Commencement Date and continuing with each successive twelve (12) month
period after each anniversary of the Fourth Expansion Space Rental
Commencement Date, if Landlord fails to adjust any Parking Rent so changed
in excess of the applicable Average Rent to an amount equal to or less than
the Average Rent within thirty (30) days after written notice thereof from
Tenant to Landlord. As used in this Parking Agreement, the term "Average
Rent"shall mean the average of the rates charged for reserved or unreserved
parking other than the Parking Spaces, as the case may be, in the following
garages: Xxxxxx Garage located at 1112 Clay, Howell Building, 777 Clay
Garage, First City Center Garage, and Main Garage. For purposes of clarity,
in the event the Parking Rate for only one category of Parking Spaces is
increased in excess of the applicable Average Rent,
E-1-i
such opportunity to terminate shall be limited to the category of
Parking Spaces for which the Parking Rate has been adjusted to an
amount in excess of the Average Rent and not to the other category of
Parking Spaces. Landlord shall have no obligation to provide Tenant,
and Tenant shall have no right to, any parking spaces that are so
terminated by Tenant. All payments of rent for Parking Spaces shall be
made (i) at the same time as Basic Monthly Rent is due under the Lease
and (ii) to Landlord or to such persons (for example but without
limitation, the manager of the Approximate Garage) as Landlord may
direct from time to time.
3. Parking Stickers and Cards. Parking cards, stickers or any other device
--------------------------
or form of identification supplied by Landlord to Tenant permitting
access to the Approximate Garage shall remain the property of Landlord
and shall not be transferable. There will be a replacement charge
payable by Tenant equal to the amount posted from time to time by
Landlord for loss of any magnetic parking card or parking sticker
issued by Landlord for access to the Approximate Garage. On the
Effective Date, the current charge for a lost magnetic parking card or
parking sticker, or any magnetic parking card or parking sticker not
returned to Landlord on the expiration or termination of Tenant's right
to any Parking Space, is $25.00 per magnetic parking sticker or parking
sticker.
4. Damage to or Condemnation of Garage. If Landlord fails or is unable
-----------------------------------
to provide any Parking Space to Tenant in the Approximate Garage
because of damage or condemnation, such failure or inability shall
never be deemed to be a default by Landlord as to permit Tenant to
terminate the Lease, either in whole or in part, but Tenant's
obligation to pay rent for any such Parking Space which is not provided
by Landlord shall be abated for so long as Tenant does not have the use
of such Parking Space and such abatement shall constitute full
settlement of all claims that Tenant might otherwise have against
Landlord by reason of such failure or inability to provide Tenant with
such Parking Space.
5. Rules and Regulations. A condition of any parking shall be the Xxxxxx'x
---------------------
compliance with the rules and regulations of the Approximate Garage
(the " Approximate Garage Rules and Regulations") promulgated by the
owner of the Approximate Garage (the"Garage Owner"), a copy of which
will be delivered to Tenant upon request. Approximate Garage managers
or attendants are not authorized to make or allow any exceptions to the
Approximate Garage Rules and Regulations. The Garage Owner shall have
the right to modify and/or adopt such other generally applicable rules
and regulations for the Approximate Garage as it deems necessary for
the operation of the Approximate Garage. The Garage Owner prohibits the
parking of vehicles in areas designated as "RESERVED" or "TOW AWAY
ZONE", except as any Xxxxxx may be authorized to park in such areas.
Any unauthorized vehicle of Tenant or any of its officers, employees,
agents or invitees (individually and collectively, the "Tenant
Parties") parked in these areas will be towed at Tenant's expense.
6. Default. Tenant's failure to promptly pay the Parking Rent shall
-------
constitute a default under the Lease, and Landlord may, at its option
and in addition to all other remedies provided for in the Lease,
terminate Tenant's rights to use the Approximate Garage. Landlord may
refuse to permit any person who violates the Approximate Garage Rules
and Regulations to park
E-1-ii
in the Approximate Garage, and any violation of the Approximate Garage
Rules and Regulations shall subject the violating Xxxxxx'x car to
removal from the Approximate Garage at the owner's expense. No such
refusal or removal shall create any liability on Landlord or be deemed
to interfere with Tenant's right to quiet possession of the Premises.
7. Indemnity. TENANT WILL INDEMNIFY AND HOLD THE LANDLORD PARTIES HARMLESS
FROM, AND REIMBURSE THE INDEMNIFIED PARTIES FOR AND WITH RESPECT TO,
ALL CLAIMS, DEMANDS, ACTIONS, DAMAGES, LOSSES, LIABILITIES,
OBLIGATIONS, PENALTIES, ACTIONS, JUDGMENTS, SUITS OR OTHER PROCEEDINGS,
COSTS, EXPENSES OR DISBURSEMENTS OF ANY KIND OR NATURE WHATSOEVER,
INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEY'S FEES, COURT COSTS
AND DISBURSEMENTS (EACH A "CLAIM" AND COLLECTIVELY THE "CLAIMS") WHICH
MAY BE IMPOSED ON, INCURRED BY, SUFFERED BY OR ASSERTED AGAINST ANY
LANDLORD PARTY AS A RESULT OF, ARISING FROM OR IN CONNECTION WITH ANY
TENANT PARTY'S USE OR OCCUPANCY OF THE APPROXIMATE GARAGE AND/OR ANY
ACCIDENT, INJURY OR DAMAGE OCCURRING IN CONNECTION WITH SUCH USE OR
OCCUPANCYREGARDLESS OF WHETHER SUCH CLAIM ARISES IN WHOLE OR IN PART
FROM THE SOLE NEGLIGENCE, CONCURRENT NEGLIGENCE OR COMPARATIVE
NEGLIGENCE OF AN INDEMNIFIED PARTY; PROVIDED, HOWEVER, SUCH
INDEMNIFICATION OF A LANDLORD PARTY BY TENANT SHALL NOT INCLUDE ANY
CLAIM TO THE EXTENT CAUSED BY THE GROSS NEGLIGENCE OR WILLFUL
MISCONDUCT OF SUCH LANDLORD PARTY.
E-1-iii
RIDER 1
RENEWAL OPTION
SINGLE RENEWAL TERM
This Rider is attached to and a part of that certain Fourth Amendment
to Standard Lease Agreement dated as of September 29, 2000 (the "Fourth
Amendment"), executed by and between AGBRI XXXXXX X.X., a Delaware limited
partnership ("Landlord"), and INTERLIANT, INC., a Delaware corporation
("Tenant"). Any capitalized term not defined herein shall have the meaning
assigned to it in the Lease, as such term is defined in the Fourth Amendment.
Landlord and Tenant agree as follows:
A. If, and only if, on the Expiration Date and the date Tenant notifies
Landlord of its intention to renew the term of this Lease (as provided
below), (i) Tenant is not in default under this Lease, (ii) Tenant then
occupies, and the Premises then consist of, at least all the 59,885 square
feet of Agreed Rentable Area on Floor 7 of the Building, and (iii) this
Lease is in full force and effect, then Tenant (or any approved Assignee
but not any subtenant of Tenant) shall have and may exercise an option to
renew this Lease for all of the Premises, or all of any contiguous portion
thereof which includes not less than the Floor 7 Space, for one (1)
additional term of seven (7) years (the "Renewal Term") upon the same terms
and conditions contained in this Lease with the exceptions that (x) this
Lease shall not be further available for renewal and (y) the rental for the
Renewal Term shall be the Market Rental Rate (defined below), but in no
event will the Base Annual Rent for the Renewal Term be less than the Base
Annual Rent for the last twelve (12) calendar months of the term of the
Lease. The "Market Rental Rate" is hereby defined to mean the then
prevailing rents (including, without limitation, those similar to the Basic
Annual Rent, Additional Charges, and Additional Rent) payable by tenants
for space in the Building of comparable quality, size, use, utility and
condition as the Floor 7 Space, taking into consideration all relevant
factors, including the following:
(a) use, location, size and/or floor level(s) of the space in question;
(b) tenant improvement or refurbishment allowance to be provided;
(c) abatement (including with respect to base rental, operating expenses
and real estate taxes, and parking charges);
(d) relocation/moving allowance;
(e) space planning/interior architecture/engineering allowance(s);
(f) refurbishment and repainting allowances;
(g) any other concessions or inducements;
R-1-i
(h) extent of services provided or to be provided (including overtime
cooling and heating, plus hourly charges therefor);
(i) distinction between "gross" and "net" lease;
(j) any other adjustments (including by way of indexes) to base rental;
(k) credit standing and financial stature of the tenant;
(l) term or length of lease; and
(m) the time the particular rental rate under consideration is to become
effective.
B. If Tenant desires to renew this Lease, Tenant must notify Landlord in
writing of its intention to renew on or before the date which is at least
six (6) months but no more than nine (9) months prior to the Expiration
Date. Landlord shall, within the next sixty (60) days after Landlord
receives such notice, notify Tenant in writing of Landlord's determination
of the Market Rental Rate and Tenant shall, within the next twenty (20)
days following receipt of Landlord's determination of the Market Rental
Rate, notify Landlord in writing of Tenant's acceptance or rejection of
Landlord's determination of the Market Rental Rate. If Tenant timely
notifies Landlord of Tenant's acceptance of Landlord's determination of the
Market Rental Rate, this Lease shall be extended as provided herein and
Landlord and Tenant shall enter into an amendment to this Lease to reflect
the extension of the term and changes in Rent in accordance with this
Rider. If (x) Tenant timely notifies Landlord in writing of Tenant's
rejection of Landlord's determination of the Market Rental Rate or (y)
Tenant does not notify Landlord in writing of Tenant's acceptance or
rejection of Landlord's determination of the Market Rental Rate within such
twenty (20) day period, this Lease shall end on the Expiration Date and
Landlord shall have no further obligations or liability hereunder.
C. The Floor 7 Space shall be delivered to Tenant in an "as is" condition.
R-1-ii
RIDER 3
SUBORDINATE RIGHT OF OPPORTUNITY
This Rider is attached to and a part of that certain Fourth Amendment
to Standard Lease Agreement dated as of September 29, 2000 (the "Fourth
Amendment"), executed by and between AGBRI XXXXXX X.X., a Delaware Limited
partnership ("Landlord"), and INTERLIANT, INC., a Delaware corporation
("Tenant"). Any capitalized term not defined herein shall have the meaning
assigned to it in the Lease, as such term is defined in the Fourth Amendment.
Landlord and Tenant agree as follows:
A. Prior to Landlord's leasing to a third party any of Floor 22 not a part of
the Fourth Expansion Space, Floor 23, or Floor 24 of the Building, as
depicted on Schedule 1, Schedule 2, and Schedule 3, respectively, attached
to this Rider (the"Opportunity Expansion Space"), except for the lease to a
tenant exercising its right under its lease of space in the Building,
Landlord shall deliver to Tenant a written statement ("Statement") setting
forth the name of a prospective tenant interested in all or a portion of
the Opportunity Expansion Space. Tenant's right of opportunity provided for
in this Rider 3 is subject and subordinate to the rights existing under
other tenant leases of the Building as of the date of the above described
Fourth Amendment, including, without limitation, the right of opportunity
of Exxon, formerly known as Exxon Corporation, under its Lease Agreement
with Landlord, as amended (the "Exxon Lease"), and any other expansion
options, rights of first refusal, rights of opportunity or preferential
rights. As an example, Landlord shall have no obligation to deliver a
Statement and provide Tenant the opportunity to lease any portion of the
Opportunity Expansion Space until Landlord has notified Exxon of its
opportunity to lease the applicable portion of the Opportunity Expansion
Space and Exxon has elected, or has been deemed to have elected, not to
lease the applicable portion of the Opportunity Expansion Space, all in
accordance with the terms of the Exxon Lease. After Landlord notifies Exxon
or any other tenant with a superior right to the applicable portion of the
Opportunity Expansion Space of its opportunity to lease the applicable
portion of the Opportunity Expansion Space, Landlord shall notify Tenant
that it has given such notice to Exxon or such other tenant, which notice
shall identify the applicable portion of the Opportunity Expansion Space.
Tenant shall have five (5) business days after receipt of the Statement
within which to notify Landlord in writing that it desires to lease the
applicable Opportunity Expansion Space (each such written notice is herein
referred to as a "Notice"). Failure by Tenant to notify Landlord within
such five (5) business day period shall be deemed an election by Tenant not
to lease the applicable Opportunity Expansion Space and Landlord shall have
the right to lease such space to the tenant identified in the Statement. If
Landlord does not lease such Opportunity Expansion Space to such tenant,
then Landlord will comply with the provision of this Rider prior to leasing
such space to any other third party.
B. The Opportunity Expansion Space shall be leased to Tenant upon all terms
and conditions of this Lease with the following exceptions: (i) all
Opportunity Expansion Space shall be delivered to Tenant in "as is"
condition; (ii) Basic Annual Rent for the Opportunity Expansion Space will
be determined in accordance with paragraph C of this Rider; (iii) the Basic
Monthly Rent for the agreed rentable area of the Opportunity Expansion
Space will be equal to one twelfth (1/12th) of the Basic Annual Rent for
the Opportunity Expansion Space; (iv) the Opportunity
R-3-i
Expansion Space will be improved by Tenant in accordance with paragraph D
of this Rider; (v) Tenant shall not be entitled to any allowances or
inducements with respect to the applicable Opportunity Expansion Space; and
(vi) Basic Annual Rent and Additional Rent with respect to the applicable
Opportunity Expansion Space shall commence on the earlier to occur of (x)
the date that Tenant commences use of the applicable Opportunity Expansion
Space for any purpose or (y) the date sixty (60) days after the date on
which the applicable Opportunity Expansion Space is made available to
Tenant for the construction of its improvements in accordance with
paragraph D of this Rider, provided that the initial date determined under
this clause (y) shall be adjusted backward (i.e., to an earlier date) by
one (1) day for each day of Tenant Delay (as defined in the applicable Work
----
Letter). Upon such rent commencement date, (1) the Agreed Rentable Area of
------
the Premises shall be deemed increased by the agreed rentable area of the
Opportunity Expansion Space, (2) Basic Annual Rent for the Premises shall
be deemed increased by an amount equal to the Basic Annual Rent for the
Opportunity Expansion Space, (3) Basic Monthly Rent for the Premises shall
be deemed increased to an amount equal to one twelfth (1/12th) of the Basic
Annual Rent for the Premises (as increased) and (4) Additional Rent for the
Premises shall be recalculated on the basis of the increased Agreed
Rentable Area of the Premises.
C. The Basic Annual Rent for the Opportunity Expansion Space shall be the
"Market Rental Rate" ( as defined in Rider 1 to the Lease except for the
substitution of the Opportunity Expansion Space for the Floor 7 Space), but
in no event will the Base Annual Rent for the Opportunity Expansion Space
be less than (i) the Base Annual Rent from time to time applicable to the
Fourth Expansion Space if the applicable Opportunity Expansion Space is
used for general office or (ii) the Base Annual Rent from time to time
applicable to the Floor 7 Space if the applicable Opportunity Expansion
Space is used for data center space or other than general office.
D. Within fifteen (15) days after Landlord's receipt of a Notice, Tenant and
Landlord will enter into a Work Letter substantially in the form of Exhibit
----------- -------
C-1 attached to the Fourth Amendment, provided that such form shall be
---
amended to (i) set forth appropriate dates and (ii) provide for such other
matters as are necessary to reflect the agreements of the parties with
respect to the finish out of the applicable Opportunity Expansion Space.
Pursuant to the Work Letter, Tenant shall construct or cause to be
-----------
constructed improvements in the applicable Opportunity Expansion Space in
substantial accordance with construction plans agreed to by Landlord and
Tenant. The cost of constructing such improvements shall be borne by Tenant
without any allowances or inducements.
E. Upon substantial completion of the applicable Opportunity Expansion Space
improvements, Landlord and Tenant shall execute an Acceptance of Premises
Memorandum in substantially the form of Exhibit D attached to the Lease. If
---------
Tenant occupies any Opportunity Expansion Space without executing the
Acceptance of Premises Memorandum, Tenant shall be deemed to have accepted
such Opportunity Expansion Space for all purposes.
R-3-ii
F. Within fifteen (15) days after Landlord's receipt of a Notice, Landlord and
Tenant will enter into an amendment to this Lease reflecting (i) the
addition of the applicable Opportunity Expansion Space to the Premises,
(ii) the increase in Basic Annual Rent and Additional Rent payable under
this Lease, (iii) the increase in Tenant's Building Expense Percentage and
(iv) such other amendments as are necessary.
G. Notwithstanding any other provision or inference herein to the contrary,
Tenant's rights and Landlord's obligations under this Rider shall expire
and be of no further force or effect on the earliest of (i) the expiration
or earlier termination of the term of this Lease or (ii) a default by
Tenant under this Lease.
R-3-iii
EX.10.44
SCHEDULE 1
Floor 22 Opportunity Expansion Space
[FLOOR PLAN APPEARS HERE]
EX.10.44
SCHEDULE 2
Floor 23 Opportunity Expansion Space
[FLOOR PLAN APPEARS HERE]
EX.10.44
SCHEDULE 3
Floor 24 Opportunity Expansion Space
[FLOOR PLAN APPEARS HERE]
