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Exhibit 10.24
FIRST AMENDMENT TO LEASE AGREEMENT
THIS FIRST AMENDMENT TO LEASE AGREEMENT (this "Amendment") is dated as of
June 28, 1999 between WESTWOOD CENTER, L.L.C., a Delaware limited liability
company ("Landlord"), and INTERLIANT, INC., (formerly known as Sage Networks,
Inc.), a Delaware corporation ("Tenant").
WITNESSETH
WHEREAS, Landlord entered into a Deed of Lease with Tenant dated as of
February 12, 1999 (the "Lease"), whereby Tenant leased from Landlord certain
commercial office premises (the "Premises") located on the first floor of the
property located at 0000 Xxxxxxxx Xxxxxx Xxxxx, Xxxxxx, Xxxxxxxx (the
"Building");
WHEREAS, Tenant desires to lease from Landlord and Landlord desires to
lease to Tenant the remaining square footage located on the first floor of the
Building, on the same terms and conditions as contained in the Lease as amended
and modified hereby.
NOW, THEREFORE, in consideration of the premises and agreements herein
contained, the parties hereto agree as follows:
1. Defined Terms. All capitalized terms used and not otherwise defined
herein shall have the meanings ascribed to them in the Lease and the work
agreement attached as Exhibit C thereto.
2. Effective Date. This Amendment shall constitute a present and binding
agreement between the parties hereto which shall be effective as of the date
hereof.
3. Expansion Space. "Expansion Space" with respect to this Amendment shall
mean that portion of the Building on the first (1st) floor of the Building which
is demised hereunder by Landlord to Tenant and which is described and depicted
as "Wing A" in Exhibit A to the Lease.
4. Expansion Space Commencement Date. The Expansion Space Commencement
Date hereunder shall be September 1,1999.
5. Premises. From and after the Expansion Space Commencement Date,
"Premises" shall mean, in addition to those portions of the Building included in
the meaning of Premises under the Lease, (i) the Expansion Space, such that the
Premises consist of the entirety of the first floor of the Building, (exclusive
of the Common Areas), containing 22,270 rentable square feet, and (ii) that pad
location on the Site Plan (as defined in the Lease) on which Tenant's
generator(s) and fuel tank is located, as generally depicted on Exhibit A
attached to this Amendment. The definition of Premises as set forth in this
Section 5 shall be applicable for all
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purposes of the Lease, including, but not limited to, the calculation of
Tenant's Share and the calculation of Base and Additional Rent
6. Tenant's Share. Commencing upon the Expansion Space Commencement Date,
"Tenant's Share" shall mean 22.94% (22,270/97,081).
7. Construction of Tenant Improvements. "Tenant's Work" hereunder shall
mean the construction of the Tenant Improvements within the Expansion Space in
accordance with the Approved Plans as defined in Exhibit C to the Lease. The
Improvement Allowance as set forth in such Exhibit C is hereby increased to an
aggregate $222,700.00, calculated at $10.00 per rentable square foot of the
Premises. Access to the Expansion Space shall be given to Tenant on June 15,
1999 for purposes of Tenant's performance of Tenant's Work (but not for Tenant's
occupancy thereof).
8. Term. The term of the Lease applicable to the Expansion Space shall
commence on September 1, 1999, and expire one hundred twenty (120) months
thereafter. The Term of the Lease as set forth in Section 1.3 thereof is hereby
amended and modified to be coterminous with the term of the Expansion Space; it
being the intent hereof that the Term of the Lease shall expire on August 31,
2009.
9. Security Deposit. Within three (3) business days after the date hereof,
Tenant shall increase (i) the Security Deposit as set forth in Section 3.1 of
the Lease to an aggregate Two Hundred Fifty Thousand Dollars ($250,000.00), and
(ii) the Advance Deposit as set forth in Section 3.2 of the Lease to an
aggregate $43,612.08.
10. Base Rent. The annual Base Rent for the Expansion Space (which shall
be paid in monthly installments as a portion of the "Monthly Base Rent" under
and pursuant to the Lease) for the initial Lease Year of the Term of the
Expansion Space shall be Twenty Three Dollars and Fifty Cents ($23.50) per
square foot of the Expansion Space. Base Rent is "net" of electrical service
which will be contracted for and paid directly by Tenant. As of September 1,
2000, and each subsequent annual anniversary of the Expansion Space Commencement
Date thereafter, the Base Rent for the Expansion Space shall be increased to an
amount equal to one hundred three percent (103%) of the Base Rent for the
Expansion Space for the immediately preceding Lease Year. The foregoing shall
not affect the scheduled escalation of Base Rent for the initial Premises as
originally set forth in the Lease, which shall remain as originally contemplated
therein (it being the intent hereof that the Base Rent applicable to the
Expansion Space shall be adjusted as of September 1 of each year, and the Base
Rent applicable to the balance of the Premises shall be adjusted as of July 1 of
each year).
11. Assignment; Subleasing. Tenant's right to sublease and or assign the
Expansion Space shall be as set forth in Article 21 of the Lease.
12. Right of First Offer
12.1 Provided that Tenant is not in default under the Lease, Tenant
shall have a right of first offer to lease any space (except space leased to
Tenant) which is not currently vacant
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but subsequently is leased and then becomes available for re-lease on the 8370-5
floor of the Building during the Lease Term (hereinafter "Qualifying Space").
Notwithstanding the preceding sentence, (i) this right of first offer is subject
and subordinate to the rights of existing Building tenants, including without
limitation, any renewal, expansion, or any other contractual options to lease or
occupy space within the Building previously granted to such existing Building
tenants, and/or the holding over of such existing tenant(s); (ii) Tenant shall
not have a right of first offer in the event that leasing the Qualifying Space
to Tenant would "adversely affect the leasability of the remaining space" (as
defined below); and (iii) Landlord shall have no obligation to offer this right
of first offer to Tenant more than once on any Qualifying Space.
12.2 For purposes of this Lease, leasing a Qualifying Space to
Tenant shall "adversely affect the leasability of the remaining space" if the
remaining space on such floor is of a configuration which hinders the
marketability of the remaining space to potential Building tenants or renders
the space unsuitable for its intended use (including without limitation,
configurations which consist of only interior space or space which has
disproportionately few or no windows; space which is not contiguous; space which
is oddly-shaped or includes a disproportionate amount of Building core areas;
space for which there is limited or no access to or from the common areas of the
Building; or space for which it is disproportionately expensive or impractical
to partition or provide utilities or other services for). Tenant expressly
agrees that Landlord's determination, which shall be made in Landlord's sole
discretion, regarding whether leasing a Qualifying Space to Tenant would
adversely affect the leasability of the remaining space, shall be determinative.
12.3 In the event any Qualifying Space becomes available during the
Term, Landlord shall, if ascertainable, notify Tenant in writing of the size and
location of such space (the "Offered Space") at least three (3) months prior to
the expiration of the lease term applicable to such Offered Space. Landlord's
notice shall be hereafter referred to as the "Offer Notice". The Offer Notice
shall include the lease term for the Offered Space, which shall be coterminous
with the Lease Term (or, if applicable, the Renewal Term) of the initially
leased Premises, regardless of when the Offered Space becomes available.
12.4 The Offer Notice shall specify that the terms and conditions
for leasing the Offered Space shall be the identical to the terms and conditions
in this Lease, except that the rental rate and tenant improvement allowance for
the Offered Space shall be the current rental rate and interior improvement
allowance being offered by Landlord for comparable space in the Building. The
Offer Notice shall state the dollar amounts of such rental rate and allowance
(the amount of such allowance being adjusted based upon the number of months
then remaining in the Term).
12.5 Tenant shall have fifteen (15) business days after receipt of
the Offer Notice to (i) exercise its right of first offer by giving Landlord
written notice of Tenant's election to lease all (but not less than all) of,
such Offered Space ("Tenant's Election Notice"), or (ii) elect not to exercise
its right of first offer for the Offered Space.
12.6 In the event Tenant exercises its right of first offer to lease
the Offered
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within such fifteen (15) business day period for an Offered Space then Tenant
and Landlord shall execute an Amendment to this Lease as follows: Landlord shall
promptly prepare and deliver to Tenant an Amendment to this Lease (the
"Amendment") which brings the Offered Space under the terms and conditions of
the Lease. Specifically, the Amendment shall: (i) make the square footage of the
Offered Space part of the Premises; (ii) specify that the rental rate and
allowance for the Offered Space is then current rental rate stated in the Offer
Notice; (iii) specify that Tenant shall accept the Offered Space in "as-is"
condition (subject to the allowance), and that Tenant shall not receive any free
rent or reduced rent for the Offered Space; (iv) increase Tenant's Proportionate
Share to include the Offered Space; (v) specify that the commencement date for
the Offered Space shall be forty five (45) days after the date on which the
Offered Space becomes vacant; (vi) specify that any improvements or construction
that Tenant performs in the Offered Space shall be treated as an "Alteration"
pursuant to the Lease; and (vii) specify that, except for (i) - (vi), all other
terms and conditions of the Lease shall remain in full force and effect and with
respect to the Premises and the Offered Space. Tenant shall execute and deliver
the Amendment to Landlord within five (5) days after Tenant's receipt of the
Amendment, in a form mutually satisfactory to Landlord and Tenant.
12.7 In the event Tenant fails or declines to exercise its right of
first offer within the requisite time periods in accordance with this Section 12
with respect to a particular Offered Space, or in the event Tenant fails or
declines to execute and deliver the Amendment for an Offered Space within the
requisite time period after Tenant exercises its right of first offer, then
Tenant's right of first offer with respect to that particular Offered Space
shall be extinguished and shall thereafter be null and void and of no further
force and effect, and Landlord shall thereafter have the right to lease such
Offered Space to third parties on such terms as Landlord (in its sole
discretion) deems appropriate, without any further notification to Tenant.
12.8 Time is of the essence in this Section 12.
12.9 Tenant acknowledges and agrees that this right of first offer
and any other rights granted under this Section 12 are granted exclusively to
Tenant and not to any assignee or sublessee of Tenant; unless such assignee is
an entity which acquired substantially all of the assets or capital stock of
Tenant or is an entity into which Tenant has merged.
13. Complete Agreement; No Other Modification. This Amendment and the
Lease contain the entire agreement of the parties hereto and no representations,
inducements, promises, or agreements, oral or otherwise, between the parties not
embodied herein, shall be of any force or effect. This Amendment may not be
amended, modified, or canceled except by written agreement executed by both
parties. Except as otherwise expressly set forth herein, the terms and
provisions of the Lease are and shall remain in full force and effect.
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IN WITNESS WHEREOF, the parties hereto have executed this First Amendment
on the date and year first above written.
LANDLORD:
WESTWOOD CENTER, L.L.C.
__________________ By: /s/ Xxxx X. Xxxxxxxx
_______________________
Name: Xxxx X. Xxxxxxxx
Title: Vice President
TENANT:
INTERLIANT, INC.
__________________ By: /s/ Xxxxx X. Xxxxxxxx
______________________
Name: Xxxxx X. Xxxxxxxx
Title: President
