EXHIBIT 10.53
AMENDMENT NO. 3 TO SUBLEASE
THIS AMENDMENT NO. 3 TO SUBLEASE ("Amendment") is made as of April 8,
1999 between XXXXXX CORPORATION, a Delaware corporation ("Sublessor"),
and EXODUS COMMUNICATIONS, INC., a California corporation ("Sublessee").
THE PARTIES ENTER INTO THIS AMENDMENT based upon the following facts,
understandings and intentions:
A. Xxxx X. Xxxxxxx and Xxxxx X. Xxxxxxx, a married couple, Xxxx X.
Xxxx and Xxxx Xxx Xxxx, a married couple, Xxxxx X. Xxxx and Xxxxx Xxxx, a
married couple, and Xxxxxx X. Xxxxxx, XX and Xxx Xxxxxx (collectively,
the "Landlord"), as landlord, and Sublessor, as tenant, are now parties
to that certain lease agreement dated April 3, 1979, as amended by an
Addendum No. 1 to Lease dated June 7, 1979, Addendum No. 2 to Lease dated
October 19, 1979 and Addendum No. 3 to Lease dated December 17, 1979
("Master Lease") with respect to certain premises (the "Building")
located at 0000 Xxxxxx Xxxx xx Xxxxx Xxxxx, Xxxxxxxxxx.
B. Sublessor and Sublessee are now parties to a Sublease Agreement
effective January __, 1998 and amended on February 13, 1998 by Amendment
No. 1 to Sublease and on December 23, 1998 by Amendment No. 2 to Sublease
(as amended, the "Sublease") whereby Sublessee currently subleases a
portion of the Building (the "Existing Sublet Space") consisting of
approximately 55,000 rentable square feet and more particularly described
in the Sublease.
C. The parties hereto now wish to amend the Sublease to expand the
space subleased by Sublessor to Sublessee.
D. Capitalized terms used herein shall have the meanings given them
in the Sublease, unless otherwise defined herein.
NOW, THEREFORE, IN CONSIDERATION of the mutual covenants and promises
of the parties, the parties hereto agree as follows:
1. Expansion of Sublet Space. The Existing Sublet Space shall be
expanded to include additional space consisting of approximately 33,490
square feet located on the second floor of the Building and shown on
Exhibit A, attached hereto and incorporated herein by this reference (the
"Expanded Sublet Space"). As of the execution of this Amendment,
Sublessee acknowledges that Sublessee shall have conducted Sublessee's
own investigation of the Expanded Sublet Space and the physical condition
thereof, including accessibility and location of utilities, improvements,
existence of hazardous materials, including but not limited to asbestos,
asbestos containing materials, polychlorinated biphenyls (PCBs) and
earthquake preparedness, which in Sublessee's judgment affect or
influence Sublessee's use of the Expanded Sublet Space and Sublessee's
willingness to enter into this Amendment. Sublessee recognizes the
Sublessor would not sublease the Expanded Sublet Space except on an "as
is" basis and acknowledges that Sublessor has made no representations of
any kind in connection with improvements or physical conditions on, or
bearing on, the use of the Expanded Sublet Space. Sublessee shall rely
solely on Sublessee's own inspection and examination of such items and
not on any representations of Sublessor, express or implied. Sublessee
further recognizes and agrees that neither Sublessor nor Landlord shall
be required to perform any work of construction, alteration or
maintenance of or to the Expanded Sublet Space. Notwithstanding anything
to the contrary contained herein, Sublessee shall be solely responsible
for ensuring that the Entire Sublet Space complies with all code
requirements and other governmental regulations including, but not
limited to, fire code requirements for existing Area B as such Area is
currently configured and depicted on Exhibit A.
2. Term. The Term of the Sublease with respect to the Expanded
Sublet Space shall be for nine (9) years and eight (8) months, commencing
on April 1, 1999 ("Expansion Commencement Date") and expiring on November
30, 2008 (the "Expansion Expiration Date"), or any earlier date on which
the Sublease is terminated pursuant to its terms. Sublessee shall have no
right whatsoever to extend the Term of the Sublease.
3. Early Occupancy. Provided that Sublessor and Master Landlord have
already approved any plans of Sublessee for any demolition and/or tenant
improvement work to be performed by Sublessee in the Expanded Sublet
Space, Sublessee may, at Sublessee's sole risk, enter the Expanded Sublet
Space prior to the Expansion Commencement Date solely to install trade
fixtures and equipment; provided, however, that (a) Sublessee's early
entry shall not interfere with Sublessor's activities in the Expanded
Sublet Space or cause labor difficulties; (b) Sublessee shall provide
Sublessor with satisfactory evidence that Sublessee has obtained the
insurance required of Sublessee under the Sublease; (c) such early
occupancy shall be on all of the terms and conditions of the Sublease
(except for Sublessee's obligations to pay Base Rent and Additional
Rent), and (d) Sublessee shall pay Sublessor the utility charges related
to such early occupancy by Sublessee.
4. Base Rent. The monthly rent due for the Expanded Sublet Space
shall be $45,211.50 ($1.35 per rentable square foot) from the Expansion
Commencement Date through January 30, 2000. This amount shall be in
addition to all sums due under the Sublease. Beginning on February 1,
2000 (month 25 under the Sublease), Base Rent shall increase annually by
$0.5 per rentable square foot as per the Sublease for the Existing Sublet
Space and the Expanded Sublet Space (collectively, the "Entire Sublet
Space").
Upon the execution of this Amendment, Sublessee shall deliver to
Sublessor the Base Rent for the first month of the term of the Sublease
applicable to the Expanded Sublet Space.
5. Letter of Credit
a. No later than the close of business on April 2, 1999, Sublessee
shall deposit with Sublessor an unconditional irrevocable letter of
credit in the amount of Two Hundred Sixty-Five Thousand and No/100
Dollars ($265,000.00) (the "Letter of Credit"). The financial institution
issuing the Letter of Credit shall be reasonably acceptable to Sublessor.
Such financial institution shall be a part of the federal banking system
and shall have at least one branch within fifty (50) miles of the
Building.
b. The Letter of Credit shall provide for its payment to Sublessor
upon its presentation of a statement from Sublessor that an event of
default by Sublessee exists hereunder. Upon the failure of Sublessee to
deliver a replacement letter of credit (or any extension of the existing
Letter of Credit) on or before thirty (30) days prior to any maturity
date of any such Letter of Credit, Sublessor may draw upon the same and
thereafter treat such cash as a portion of the Security Deposit. If an
event of default by Sublessee under the Sublease does not then exist, (i)
on the first day of the thirty-seventh (37th) month of the term
applicable to the Expanded Sublet Space, the amount of the Letter of
Credit required of Sublessee hereunder shall be reduced to Two Hundred
Thirty-Five Thousand and No/100 Dollars ($235,000.00), and (ii) on the
first day of the forty-ninth (49th) month of the term applicable to the
Expanded Sublet Space, the amount of the Letter of Credit required of
Sublessee hereunder shall be reduced to Two Hundred Five Thousand and
No/100 Dollars ($205,000.00).
6. Operating Expenses. Sublessor and Sublessee agree that the second
floor of the Building is comprised of 63,900 square feet. For the time
period commencing with the Expansion Commencement Date and ending on the
Expansion Expiration Date, or any earlier date on which the Sublease is
terminated pursuant to its terms, Sublessee's Share shall be sixty-five
and thirty-five one hundredths percent (65.35%) (88,490 square feet of
135,400 Building square feet). Notwithstanding the foregoing, Sublessee
shall bear sole responsibility for the payment of all utilities serving
the Entire Sublet Space. The Entire Sublet Space shall be separately
metered at Sublessee's expense.
7. Sublessee Improvements.
a. Sublessor will pay an amount equal to $50,235.00 ($1.50 per
rentable square foot of the Expanded Sublet Space) ("Construction
Allowance") toward Sublessee's costs of construction to demise and
improve the Entire Sublet Space. Sublessor shall reimburse Sublessee for
the costs of construction within forty-five (45) days of receipt from
Sublessee of receipts for the work associated with such improvements and
unconditional mechanical and materialmen lien releases. Sublessee shall
bear sole responsibility for any and all costs of construction in excess
of the Construction Allowance. Sublessee shall timely pay all such excess
amounts and shall keep the Building and the Entire Sublet Space free and
clear of all liens and encumbrances. Sublessee shall be solely
responsible for obtaining all required governmental approvals, including
but not limited to building permits, for all improvements.
b. Sublessee shall employ a contractor or contractors of
Sublessee's choice and reasonably acceptable to Sublessor to construct
the improvements in substantial conformance with plans and specifications
approved by Sublessor, which approval shall not be unreasonably withheld.
The improvements shall be constructed in a good, workmanlike manner and
shall be at least equal in quality to the building standard work.
c. The term "costs of construction" as used herein shall mean all
costs incurred in the design and construction of the Sublessee
improvements, including the following: (i) labor and construction costs;
(ii) cost of materials; and (iii) architectural and design fees.
d. Notwithstanding anything to the contrary herein, within thirty
(30) days of the Expansion Commencement Date, Sublessee, at Sublessee's
sole expense, (i) shall construct a corridor between the Expanded Sublet
Space and the area identified as "Space B" on Exhibit A attached hereto.
In connection therewith, the Sublessee shall construct large double door
access to Space B from such corridor, (ii) shall construct a conference
room in such "Space B" area which is reasonably equivalent to the
existing configuration of Room 2464 shown on Exhibit A, (iii) shall
remove the west door in hallway 2800 and the north wall in room 308, and
shall relocate the existing fire hose, all as shown on the attached
Exhibit A and (iv) shall construct an alarmed emergency exit from the
corridor in the Expanded Sublet Space as shown on attached Exhibit A.
Further, if required by fire code, Sublessee, at Sublessee's sole
expense, shall construct an alarmed emergency exit from the Expanded
Sublet Space adjacent to room 2912 and adjacent to room 2928 on the
attached Exhibit A. Such work shall be performed in a good and
workmanlike manner pursuant to plans and specifications therefore that
have been approved in advance by Sublessor and Master Lessor.
e. Sublessor shall install a card key access on the east door in
hallway 2800 as shown on the attached Exhibit A.
f. Sublessor shall use commercially reasonable efforts to allow
Sublessee to begin to: (i) construct and relocate the caged area in room
2880C on the attached Exhibit A by 6pm on April 1, 1999, and (ii) allow
Sublessee to begin to construct the demising wall for the corridor as
shown on the attached Exhibit A by 6 PM on April 1, 1999, provided that
nothing herein shall be deemed to require Sublessee to incur any expense
or liability in connection therewith.
8. Access. Sublessee shall have non-exclusive use of the freight
elevator in the Expanded Sublet Space throughout the Term of the Sublease
until the Expiration Expansion Date. In addition, Sublessee shall provide
Sublessor throughout the Term of this Sublease until the Expiration
Expansion Date with reasonable access to the restrooms on the second
floor of the Building, along with access to the area marked as "Space B"
on Exhibit A from the Building lobby.
9. No Brokers. Sublessee warrants for the benefit of Sublessor that
its sole contact with Sublessor or the Expanded Sublet Space in
connection with this transaction has been directly with Sublessor.
Sublessee further warrants for the benefit of Sublessor that no broker or
finder can properly claim a right to a commission or a finder's fee based
upon contacts between the claimant and Sublessee with respect to the
other party or the Expanded Sublet Space. Sublessee shall indemnify,
defend by counsel acceptable to Sublessor and hold Sublessor harmless
from and against any loss, cost or expense, including, but not limited
to, attorneys' fees and court costs, resulting from any claim for a fee
or commission by any broker or finder in connection with the Expanded
Sublet Space and this Sublease. In no event shall Sublessor be liable for
any commissions or finder's fees related to the Expanded Sublet Space or
this Sublease.
10. Full Force and Effect. Except as herein amended and supplemented,
the Sublease shall continue in full force and effect as written.
IN WITNESS WHEREOF, the parties hereto have executed this Amendment
with duplicate counterparts as of the day and year first above written.
"Sublessor"
XXXXXX CORPORATION,
a Delaware corporation,
By: /s/ XXXXXX X. XXXXXXXX
Name: Xxxxxx X. Xxxxxxxx
Title: Vice President, Corporate Facilities
"Sublessee"
EXODUS COMMUNICATIONS, INC.,
a California corporation
By: /s/ XXXXXXX XXXXXX
Name: Xxxxxxx Xxxxxx
Title: Chief Operating Officer and Chief
Economic Officer
By:
Name: Xxxxxx Xxxxxxx
Title: Vice President, Operations
EXHIBIT A
EXPANDED SUBLET SPACE
EXHIBIT A
[BUILDING 7 (SECOND FLOOR) FLOOR PLAN]
