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EXHIBIT 10.20
18th Floor
SECOND AMENDMENT TO LEASE
This Second Amendment to Lease (the "Second Amendment") is dated as of
February 23, 1998, for reference purposes only, and is made between 50 West San
Xxxxxxxx Associates, a California limited partnership ("Landlord") and
AboveNet, a California corporation ("Tenant") with reference to the following
facts and circumstances, which are conclusively agreed between the parties:
A. Landlord and Tenant are parties to that certain Office
Lease dated for reference purposes as of May 24, 1996, as amended by
First Amendment to Lease dated as of December 12, 1996 (collectively
referred to as the "Lease"). All capitalized words having an assigned
meaning in the Lease shall continue to have such meaning in this
Amendment unless explicitly modified.
B. The Lease relates to Landlord's premises located on the
18th floor of Landlord's property located at 00 Xxxx Xxx Xxxxxxxx Xxxxxx,
Xxx Xxxx, Xxxxxxxxxx (the "Building"). Said 18th floor premises are
divided into the following spaces, which are more exactly located and
identified on the floor plan which is attached hereto as Exhibit "A" and
incorporated by reference herein.
USEABLE
SPACE SQUARE FEET
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A 1,560
B 857
C 737
D 1,813
E 4,005
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TOTAL 8,972
The total rentable square feet in these spaces is 9,842.28.
C. Pursuant to the Lease, Tenant has leased from Landlord a
total of 2,402.43 rentable square feet of space constituting Space D and
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a portion of Space C (comprising 413.57 rentable square feet) of the 18th
floor of Landlord's Building located at 00 Xxxx Xxx Xxxxxxxx Xxxxxx, Xxx
Xxxx, Xxxxxxxxxx. Pursuant to oral permission from Landlord, Tenant has
also been occupying and using the remainder of Space C since July 1, 1997
(containing the remaining 323.43 rentable square feet). Spaces C and D are
referred to herein as the "Existing Premises". The Lease of the Existing
Premises is currently scheduled to expire on May 31, 2001.
D. Landlord and Tenant wish to amend the Lease to add to the
Existing Premises that certain space comprising all of Spaces A, B, and E
(collectively referred to as the "18th Floor Expansion Space"), which
contains a total of 7,440.25 rentable square feet of space, on the terms
and conditions set forth below. As a part of this same transaction,
Landlord and Tenant wish to extend the term of Tenant's lease on the
Existing Premises such that said term is coterminous with the term on the
18th Floor Expansion Space, to settle various other issues between
Landlord and Tenant, and to grant Landlord and Tenant various other
rights. The Existing Premises and the 18th Floor Expansion Space are
referred to herein collectively as the "Premises", and all references in
the Lease to the Premises shall be, as regards periods of time following
the execution hereof, to the totality of such space, which shall comprise
9,842.28 rentable square feet.
Now, therefore, in consideration of all of the foregoing facts and
circumstances, and for good and valuable consideration, the receipt of which is
acknowledged by each party, Landlord and Tenant agree to and do amend the Lease
as follows:
1. DEMISE OF 18TH FLOOR EXPANSION SPACE
Commencing on the Second Amendment Commencement Date (defined below) and
subject to the terms and provisions of the Lease and this Second Amendment,
Landlord hereby leases to Tenant, and Tenant leases from Landlord, the 18th
Floor Expansion Space. All of the Existing Premises and the 18th Floor
Expansion Space shall be deemed leased under one single, inseparable lease.
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A. EXCEPTION; SPACE B: Notwithstanding anything to the contrary
herein or in the Lease, Tenant understands and acknowledges that its
lease will be subject to the occupancy of 4 storage tenants in Space B.
Landlord will make its best efforts to relocate these storage tenants no
later than sixty (60) days after the Second Amendment Commencement Date.
Tenant's duty to pay rent will begin as to the entire Premises on the
Second Amendment Commencement Date, notwithstanding this continued
occupation, but if Landlord cannot remove the storage tenants within the
time allowed, then Tenant's rent on Space B shall be abated starting on
the 61st day and continuing until Landlord relocates the storage tenants.
As to storage tenants remaining in Spaces B and E, Tenant will pay directly or
reimburse Landlord for the cost of a moving company to relocate such tenants to
other storage space(s), will reimburse Landlord $3,200.00 on execution hereof
for the recently incurred costs of storage cages in these Spaces, and will meet
any other reasonably incurred costs of relocating such storage tenants.
2. LEASE TERM FOR EIGHTEENTH FLOOR; EXTENSION OF LEASE TERM FOR EXISTING
PREMISES
Subject to the terms and provisions of this Second Amendment, Landlord
and Tenant agree that the Lease Term of the Existing Premises shall be and
hereby is extended as follows: The Lease Term shall continue from the Second
Amendment Date for the remainder of a calendar month (if the Second Amendment
Commencement Date occurs on a date other than the first day of a calendar
month) plus one hundred twenty (120) full calendar months and expire, unless
sooner terminated pursuant to the provisions of the Lease and this Second
Amendment, on the last day of the 120th full calendar month following the
Second Amendment Commencement Date (the "Lease Term Expiration Date"). The Lease
Term for the 18th Floor Expansion Space shall begin on the Second Amendment
Commencement Date and be coterminous with the Lease Term of the Existing
Premises, and thus will also end, unless sooner terminated pursuant to the
provisions of this Lease and this Second Amendment, on the Lease Term Expiration
Date. Effective on execution hereof, Paragraph 1.6 ("Term") of the Lease shall
be of no further force or effect, but shall be deemed replaced by this
Paragraph.
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3. ROOF ACCESS AND SATELLITE RECEIVER MAINTENANCE
Tenant may use and access the roof of the Building for the installation,
placement, operation, or maintenance of satellite dishes, receivers, antennas,
electronic equipment, or other items, as follows. As space and availability
permits, Landlord will permit satellite dishes, receivers, antennas, electronic
equipment, or other items to be placed by AboveNet customers on the roof of the
Building, each pursuant to a separate written agreement providing for separate
compensation to Landlord by the AboveNet customer. Such license agreements shall
be on a master license form which Landlord will prepare, and shall be priced at
a fair market value for the use of such space. Tenant understands and agrees
that the right granted hereby is not exclusive and that Landlord may allow and
charge others to use the roof for similar purposes or otherwise. In addition to
all other waivers and indemnities granted under the Lease and this Amendment,
Tenant waives all claims and liabilities against Landlord resulting from the use
and access to the roof area of the Building by Tenant and/or its agents,
servants, employees, customers, customer representatives, and any other persons
permitted such access by Tenant, agrees to indemnify and defend Landlord and its
agents, servants, employees, attorneys, officers, directors, partners, and
management companies against any claim, loss or damage resulting therefrom.
Tenant and all persons who have access to the roof of the Building through
Tenant shall at all times obey and follow rules and procedures relating to roof
access and work which have been or will be established by Landlord, and all
directives and orders of Landlord relating to roof access. In addition, roof
access by Tenant, its customers, and its vendors shall be conducted only
pursuant to Landlord's permission and with a Landlord's representative present
throughout the access; installation of equipment or any other items on the roof
shall be only with the written advance permission of Landlord; and vendor access
will also be conducted only after submission of proof of current liability and
worker's compensation insurance with limits satisfactory to Landlord, provision
of names of personnel, company name and address, and provision of a schedule of
maintenance or work. The provisions of this Paragraph also apply to any
existing installations on the roof of the Building which belong to Tenant or its
customers or which have been allowed or permitted by Tenant to be placed on the
roof. Within 60 days of execution hereof, all such existing installations will
be made the subject of new written agreements between Landlord and AboveNet
and/or its customer, as the case may be, which will conform to all of the above
requirements.
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4. EXTRA MONTHLY BASE RENT
Tenant agrees to pay Landlord a sum for its use of the 323.43 rentable
space foot portion of Space C up to the Second Amendment Commencement Date,
calculated by multiplying the Base Monthly Rental Rate of $0.50 per rentable
square foot times 323.43 rentable square feet times the number of months from
July 1, 1997 (the date on which this use began) to the Second Amendment
Commencement Date. Said sum shall be paid on the Second Amendment Commencement
Date.
5. PLACEMENT AND OPERATION OF GENERATOR:
Tenant shall not place any electrical generation equipment in the Premises
or on the roof above the Premises. However, Tenant shall have the right to keep
and maintain an electrical generator in a space adjacent to that used for the
Building generator on floor P-1 of the Building parking area at the bottom of
the ramp. The generator will require approximately 325 square feet of space.
Tenant will pay Landlord as Additional Rent the sum of $150.00 per month to
reimburse Landlord for the cost of the parking spaces which will be consumed by
Tenant's generator. Tenant will pay all costs of installation, maintenance,
repair, and upkeep of the generator, including reimbursing Landlord for any
costs which Landlord is required to expend on account of the installation,
maintenance, repair, or use of the generator. Upon expiration or earlier
termination of the Lease, Tenant will remove the generator and restore the
Building in all respects to its condition prior to installation.
6. SECOND AMENDMENT COMMENCEMENT DATE
Landlord shall deliver occupancy of the 18th Floor Expansion Space to
Tenant on February 14, 1998 (the "Second Amendment Commencement Date"). In the
event that Landlord does not deliver on said date, however, the Second
Amendment Commencement Date shall be the actual date of delivery. This Second
Amendment shall not be void or voidable, nor shall Landlord be liable to Tenant
for any loss or damage resulting therefrom, if Landlord is unable to deliver
the 18th Floor Expansion Space by the Second Amendment Commencement Date,
provided, that no Rent shall be payable by Tenant on the 18th Floor Expansion
Space for any period prior to the date on which possession of the 18th Floor
Expansion Space is delivered by Landlord. However, possession shall be deemed
to be delivered notwithstanding the remaining
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rights of storage tenants as set forth in Paragraph 1A.
7. INCREASES IN PROPERTY TAXES:
In the event that Tenant's use, occupancy, improvement, or maintenance of
the Premises on the 18th floor of the Building causes an increase in the amount
of property taxes payable by Landlord, Tenant shall pay Landlord the amount of
such increase, as Additional Rent hereunder. Landlord may require Tenant to pay
such amounts to Landlord thirty (30) days prior to the date on which each such
tax payment is due, or Landlord may estimate the tax payments for each calendar
year, provide Tenant with such estimates in writing, and require Tenant to pay
one twelfth of such annual estimates in advance on a monthly basis. If Landlord
elects to require Tenant to pay on estimates, Landlord will provide Tenant with
a written reconciliation of estimates with actual expenses after the close of
each calendar year, and there shall be an immediate adjusting by Tenant if
actual expenses have been underpaid or by Landlord if actual expenses have been
overpaid.
8. INCREASES IN MONTHLY RENT
Tenant's Monthly Rent on the Existing Premises shall remain as set forth
in the Lease through the Second Amendment Commencement Date (plus the
additional Monthly Rent for Space C as set forth in Paragraph 4 hereof.
Tenant's Monthly Rent from and after the Second Amendment Commencement Date for
the Premises shall be as set forth in the following table:
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Total
Rentable Square Per Rentable Monthly
Lease Year Feet Square Foot Rent
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1* 9,842.28 $2.50 $24,605.70
2** 9,842.28 $2.70 $26,574.16
3 9,842.28 $2.90 $28,542.61
4 9,842.28 $3.10 $30,511.07
5 9,842.28 $3.30 $32,479.52
6 9,942.28 $3.50 $34,447.98
7 9,942.28 $3.70 $36,416.44
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8 9,842.28 $3.90 $38,384.89
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9 9,842.28 $4.10 $40,353.35
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10 9,842.28 $4.20 $41,337.58
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* Includes twelve full calendar months plus the partial month, if any,
between the Second Amendment Commencement Date and the last day of the calendar
month in which it occurs.
** This and all following Lease Years begins on the day following the end of
the preceding Lease Year.
9. INCORPORATION OF 18TH FLOOR EXPANSION SPACE INTO THE PREMISES:
From and after the Second Amendment Commencement Date, all of the terms
and conditions of the Lease, as the same are amended and modified in this
Second Amendment, shall be applicable to the 18th Floor Expansion Space in the
same manner as applicable to the Existing Premises.
10. SECURITY DEPOSIT
Upon execution hereof, the Security Deposit pursuant to this Lease shall
be increased from the current amount of $2,000 to an amount equal to the first
month's Base Rent hereunder, that is, $24,605.70.
11. OPTION TO EXTEND LEASE TERM FURTHER
Landlord hereby grants to Tenant two (2) options (the "Options") to extend
the Lease Term with respect to the Premises on the following terms and
conditions:
X. XXXXX: The Options shall give Tenant the right to extend the Lease
Term (as set forth herein) for two additional periods each of which shall be
five (5) years in length (each of which is referred to herein as an "Extended
Term");
B. NOTICE: Tenant shall give Landlord written notice of its exercise
of the Option (the "Notice of Exercise") no earlier than eighteen (18) nor
later than fourteen (14) months before the date on which the Lease Term would
end but for said exercise.
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Unless a valid Notice of Exercise is given during the period specified in this
Subparagraph, the Option shall be null, void, and of no force or effect. At any
time that the Option has become null, void, and of no further force or effect,
Tenant shall, at Landlord's written request, sign such documents as Landlord
shall reasonably propose, establishing in recordable form that the Option no
longer exists.
C. CONDITIONS: Tenant may not extend the Lease Term pursuant to this
Paragraph if (i) there is a Default by Tenant on the date of Tenant's Notice of
Exercise; and/or (ii) Tenant has assigned or otherwise transferred its interest
in this Lease and/or the Premises, whether or not Landlord has consented to
such assignment or transfer, on the date of Tenant's Notice of Exercise; and
any purported Notice of Exercise given under either of such circumstances shall
be of no force or effect. The period of exercise of the Option shall not be
extended for any period in which Tenant is unable to exercise the Option by
reason of a Default, assignment, or transfer by Tenant; provided, however, that
if there is a Default by Tenant which prevents Tenant from giving a valid
Notice of Exercise and the Default by Tenant is later cured by Tenant within
the applicable exercise period (without extension), then Tenant may exercise
the Option by giving a new Notice of Exercise prior to the end of such
unextended exercise period. If there is a Default by Tenant on the date that
the Extended Term is to commence, and said Default has continued uncured past
the applicable cure periods set forth in Paragraph 16.2 of the Lease, then
Landlord may elect to terminate this Lease by written notice to Tenant, in
which case the Lease shall terminate notwithstanding any Notice of Exercise,
and in such case, the Notice of Exercise, the Option, and the Extended Term
shall be of no force or effect (and any further Option shall be void). In such
case, Landlord shall give the Tenant notice that Landlord elects to terminate
the Lease on such grounds, no later than ten (10) days after the Extended Term
would have otherwise commenced, which notice shall set a date not less than
thirty (30) nor more than sixty (60) days after the date on which the notice is
given, upon which date the Lease shall terminate and Tenant shall deliver
possession of the Premises to Landlord.
D. TERMS: Except as otherwise specifically excluded, all terms and
conditions of the Lease as amended by this Second Amendment (except of this
option) shall apply during any Extended Term created by Tenant's proper
exercise of the Option, except that the Base Rent for the Extended Term shall
be determined in accordance with Section 4 below, and the Tenant Improvement
Allowances set forth
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in the Lease and in this Second Amendment shall not be applicable to any
Extended Term.
E. FORMATION OF CONTRACT BY NOTICE: Once Tenant delivers notice of its
exercise of the Option, Tenant may not withdraw such exercise and, subject to
the provisions of this Section, such notice shall automatically operate to
extend the Lease Term. Upon the extension of the Lese Term pursuant to this
Section, the term "Lease Term" as used in this Lease shall thereafter include
any Extended Term created by the exercise of the Option,and the Termination
Date shall be the expiration date of such Extended Term.
F. OTHER CONDITIONS TO EXERCISE: Tenant's options must be exercised
sequentially, and if Tenant does not exercise the first of the two Options, or
if, pursuant to the terms of this Section, the second Option shall thereupon,
and without further action by either party, immediately lapse and be of no
further force or effect. Each of the Options may be exercised only as to the
total Premises then leased by Tenant under this Lease as amended, including any
First Refusal Space which has been added to the Premises by Tenant's exercise
of its right of first refusal.
12. RENT DURING OPTION TERM.
If Tenant elects to extend the Term of the Lease pursuant to Paragraph 5
above, Base Rent for the Extended Term shall be an amount equal to the Fair
Market Rental Value (as defined below) of the Premises during such Extended
Term, but in no event less than the Base Rent due during the last year of the
Lease Term prior to such Extended Term. The amount of such Base Rent during the
Extended Term shall be determined as follows:
A. DETERMINATION OF FAIR MARKET RENTAL VALUE. The "Fair Market Rental
Value", as used herein, shall be the reasonable market rental value for the use
of the Premises permitted in this Lease (including, but not limited to,
considerations of rental rates for comparable space with comparable tenant
improvements located in the Building and in the central area of downtown San
Xxxx in which the Building is located, but not elsewhere, cost of living or
other rental adjustments, and the relative financial and credit strength of
Tenant versus other tenants of comparable properties), on a "full service"
basis, for a property which is already improved with the Tenant
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Improvements which are present in the Premises, but with such periodic
increases in rent during the Extended Term as the appraiser(s) shall determine
to be reasonable market lease conditions.
B. MUTUAL AGREEMENT. After timely receipt by Landlord of Tenant's
notice of exercise of an Option to extend the Lease Term, Landlord and Tenant
shall have a period of thirty (30) days in which to agree on the Fair Market
Rental Value of the Premises. If Landlord and Tenant agree on the Fair Market
Rental Value of the Premises, then they shall immediately execute an amendment
to this Lease stating such agreed upon Fair Market Rental Value as the Base
Rent for the Extended Term. If Landlord and Tenant are unable to so agree upon
the Fair Market Rental Value for the Premises, the provisions of Subparagraph
(c) below shall apply.
C. APPRAISAL. If Landlord and Tenant cannot agree in writing on a Fair
Market Rental Value for the Premises within five (5) days after the expiration
of the thirty (30) day period described in Subparagraph (b) above, each party,
at its cost and by giving notice to the other party, shall appoint an M.A.I.
real estate appraiser, with at least five (5) years full-time commercial
appraisal experience in this County, to appraise and set the Fair Market Value
of the Premises. If a party does not appoint an appraiser within five (5) days
after the other party has given notice of the name of its appraiser, the single
appraiser shall be the sole appraiser and shall set the Fair Market Rental
Value, and in such case, the cost of such sole appraiser shall be born equally
by the parties. If two appraisers are appointed by the parties as provided in
this Subparagraph, the appraisers shall meet promptly and attempt to set the
Fair Market Rental Value. If they are unable to agree within twenty (20) days
after the last appraiser has been appointed, then each of the two appraisers
shall prepare a written report setting forth the basis of and result of his/her
appraisal of the Fair Market Value of the Premises, and provide copies to
Landlord and Tenant. The two appraisers shall attempt to select and agree upon
a third appraiser meeting the qualifications stated in this Section within ten
(10) days after the last day the two appraisers are given to set the Fair
Market Rental Value. If they are unable to agree on the third appraiser, either
of the parties to this Lease, by giving ten (10) days notice to the other party,
may apply to the presiding judge of the Superior Court of County for the
selection of a third appraiser who meets the qualifications stated above.
Each of the parties shall bear one-half (1/2) of the cost (including attorney's
fees and court costs) of appointing the third appraiser and of paying the third
appraiser's fee. The
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third appraiser, however selected, shall select which of the two appraisals
submitted by the parties' respective appraisers more closely represents the
Fair Market Rental Value for the Premises, which selection shall establish and
set the Fair Market Rental Value of the Premises for purposes of determining
the Base Rent during the Extended Term. The third appraiser shall be provided
with the written appraisals of the first two appraisers upon appointment, and
shall select which appraisal shall set Fair Market Rental Value within ten (10)
days of appointment, by a written selection provided to Tenant and Landlord.
13. LAPSE OF EXPANSION OPTION AND WAIVER OF OTHER RENEWAL OPTIONS
Tenant agrees that the execution of this Second Amendment substitutes new
obligations in lieu of Tenant's option to extend the Lease Term granted under
Paragraph 3.4 of the Lease and Tenant's Expansion Option granted in Paragraphs
2.5, 2.5.1, and 2.5.2 of the Lease, that such options to extend and expand
shall be of no further force or effect upon execution hereof, and accordingly,
that on execution hereof, Paragraphs 3.4 and 2.5, 2.5.1, and 2.5.2 shall be
deemed deleted from the Lease.
14. CONDITION OF PREMISES.
Tenant is currently in possession of the Existing Premises and is
familiar with their condition, and Tenant has had the opportunity to become
familiar with the 18th Floor Expansion Space and to perform any investigations
of its condition and suitability as Tenant deemed necessary or appropriate.
Tenant accepts the Premises in their current condition, "AS-IS", with all
faults, and acknowledges that neither Landlord, nor any agent, employee,
manager, or attorney of Landlord, has made any representations or warranties
with respect to the Premises or the Building, or with respect to the
suitability of either for the conduct of Tenant's business.
Tenant recognizes that, in order to access the 18th floor, Tenant and its
invitees and employees are using Landlord's freight elevator on a non-exclusive
basis for passenger service as well as freight, and that Landlord will continue
to use said elevator as the freight elevator for the Building. Pursuant to
agreement, Landlord will, at its cost and expense, remove the protective pads
and replace the floor of the freight elevator. Tenant agrees that it will be
responsible financially for the additional
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maintenance, repair, and replacement of all or part of the freight elevator due
to Tenant's use and due to the removal of the protective surfaces, and that it
will pay Landlord's invoices for such expenses, as Landlord shall reasonably
determine, within ten (10) days of receipt, as Additional Rent.
15. CONSTRUCTION OF TENANT IMPROVEMENTS IN THE 18TH FLOOR EXPANSION SPACE
Tenant may construct Tenant Improvements in the 18th Floor Expansion
Space pursuant to the provisions of the Lease and of this Second Amendment.
A. All construction of Tenant Improvements must be through a licensed
general contractor approved in advance in writing by Landlord, and pursuant to
building and other required permits issued by the City of San Xxxx. Landlord
shall also have the right to approve all subcontractors who will be working in
the Building.
B. Tenant shall construct any Tenant Improvements pursuant to plans and
specifications which have been submitted to and approved in writing by
Landlord prior to the beginning of construction, including (1) any engineering
and load calculations and (2) power and energy calculations, each as Landlord
shall deem necessary or appropriate. Such construction shall be in accordance
with all laws and regulations applicable thereto, and subject to the
confirmation of insurance as provided in the Lease. Tenant shall pay for any
and all construction work and materials performed in regard to such Tenant
Improvements, and shall keep the Building free and clear of all liens or
encumbrances relating thereto in accordance with Paragraph 10.3 of the Lease.
Construction shall otherwise be in accordance with the rules and requirements
of Paragraphs 10.1 of the Lease. Tenant's contractor shall obey all regulations
and directives of Landlord's management staff, and shall cooperate with said
staff to minimize any inconvenience and/or damage to the Building. Prior to the
start of construction, Tenant's contractor shall deposit with Landlord the sum
of $1,000.00, which Landlord shall hold as a deposit against any damages to the
Building, damage to neighboring tenants, completion of any common area or
Building punchlist items, and full compliance with all Building regulations and
directives.
C. Tenant will pay all Monthly and Additional Rent payable hereunder,
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including making such payments during any period of construction of Tenant
Improvements in any of the Premises.
D. Landlord will grant Tenant permission to redecorate and upgrade the
common area elevator lobby on the 18th floor of the Building, at Tenant's sole
cost of expense, and subject to all of the above requirements and all
requirements of Paragraph 10.3 of the Lease.
Subject to all of the foregoing requirements, Tenant shall construct and
agrees to install, maintain, and use a 1200 amp separately metered electrical
service, including a transformer. Installation and maintenance of the service
and transformer (as well as all necessary associated wiring and other matters)
shall be at Tenant's sole cost and expense. The transformer and service are to
be located in Tenant's space on the 18th floor and separately metered. Tenant
shall contract for service and directly pay all electrical bills incurred in
this regard.
16. UTILITIES
Upon execution hereof, Tenant shall pay to Landlord, as Rent, and in
addition to all other sums due under the Lease, the amount of $22,500.00 as and
for the parties' agreed estimate of excess utility costs for the 18th floor
space in the Building occupied by Tenant from January 1, 1997 through
September 30, 1997. The parties agree that from and after October 1, 1997, and
throughout the term of the Lease as amended hereby, Landlord has caused the
utilities for the 18th floor space used by Tenant to be separately metered, and
Tenant agrees to pay, as Rent, any and all sums due under such separately
metered utilities, said payments to be due upon presentation of invoices and
deemed overdue and in default ten (10) days thereafter.
17. PARKING
Subject to the provisions of the Lease relating to parking, Landlord
shall make available to Tenant three (3) unreserved parking spaces in the
Off-Site Parking Facilities from execution hereof and in addition, from and
after September 1, 1998, five (5) unreserved spaces in the On-Site Parking
Facilities, all at the standard rates charged by Landlord or its contractor for
the use of such spaces. To the extent that Landlord is able to accommodate
these needs consistent with its obligations to other
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tenants, Landlord will make the five (5) unreserved spaces in the On-Site
Parking Facility available earlier, but Tenant understands that (1) doing so
will require Landlord to terminate existing parking spaces which are in excess
of tenant's lease rights and (2) Tenant is currently using parking in excess of
its lease rights under its other leases and would probably have to give up its
excess parking use under its other leases and would probably have to give up its
excess parking use under other leases to accommodate these five spaces in the
period prior to September 1, 1998.
18. CROSS-DEFAULT:
Tenant acknowledges and agrees that it is currently leasing other portions
of the Building pursuant to another lease between Landlord and Tenant relating
to other premises in the Building, which lease is dated for reference purposes
as of May 15, 1996 (relating to space on the 10th floor) as amended from time to
time (the "Other Premises Lease"), that any Default by Tenant under this Lease
shall be considered a Default by Tenant under the Other Premises Lease, and that
any Default by Tenant under the Other Premises Lease shall be considered to be a
Default By Tenant under this Lease. Accordingly, this Lease is amended to add
the following Subparagraph (g) to the list of occurrences which constitute a
Default by Tenant:
(g) Any Default by Tenant under the Other Premises Lease between
Landlord and Tenant, as amended from time to time.
Provided that Landlord has given any notice and opportunity to cure required by
the Other Premises Lease, Landlord shall not be required to give any further
notice or offer any further opportunity to cure a Default by Tenant under the
Other Premises Lease in order to have such be considered a Default by Tenant
hereunder. Any notice given by Landlord in order to satisfy the requirements of
Other Premises Lease which meets the requirements of California Code of Civil
Procedure Section 1161 shall also satisfy the notice requirements of such
Section regarding unlawful detainer proceedings as to the premises which are the
subject of this Lease, and no further notice shall be required. Tenant agrees
that any Default by Tenant under this Lease shall also be considered a Default
by Tenant under the Other Premises Lease. If there is a Default by Tenant under
the Other Premises Lease, Landlord may, but is not required to, pursue any or
all rights and remedies (separately or in combination) granted to Landlord under
either such lease in regard to default.
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Second Amendment To Lease Page 15 of 17
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19. ADMINISTRATIVE AND MANAGEMENT SERVICES BY LANDLORD
In the event that, at Tenant's request, Landlord or Landlord's management
company renders any administrative or management services to Tenant for matters
which are outside the scope of Landlord's obligations under this Lease
(including, but not limited to, construction management or administration,
ordering special products, arranging extra janitorial or other services by
building staff or subcontractors, finding and engaging contractors,
subcontractors, or other goods and services providers, finding and engaging
repair persons for Tenant's equipment and property, purchasing materials or
supplying labor, and/or performing any services or providing any goods where
Landlord expends funds which are to be reimbursed by Tenant and then bills
Tenant for the cost thereof, which are referred to herein as "Extra Services"),
Landlord shall be entitled to and shall charge Tenant a fee equal to Fifteen
Percent (15%) of the cost of such matters (which fee is agreed as a reasonable
reimbursement of Landlord for its administrative time and services expended in
connection with arranging for such matters), in addition to receiving full
reimbursement for all costs of such matters. Amounts payable under this
Paragraph shall be considered to be Additional Rent, shall be paid within
thirty (30) days of Landlord's invoice, and shall be subject to the late fees
and interest payments set forth hereunder. Tenant waives any liability on the
part of the Landlord arising out of the performance of Extra Services hereunder.
20. NOTICE ADDRESS
The notice address for Landlord pursuant to the Lease shall be changed as
follows:
50 West San Xxxxxxxx Associates
c/o Xxxxx XxXxxxxxx Group
Attn: Xxxxx Xxxx, General Manager
00 X. Xxx Xxxxxxxx Xx., Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
With a copy to:
Xxxx Xxxxxxxx Xxxxxxx
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Second Amendment To Lease Page 16 of 17
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Xxxxxxx and Xxxxxxx
000 X. Xx. Xxxx Xx., Xxxxx 000
Xxx Xxxx, Xxxxxxxxxx 00000
21. CONTINUING OBLIGATION
Except as expressly set forth in this Amendment, all terms and conditions
of the Lease remain in full force and effect, and all terms and conditions of
the Lease are incorporated herein as though set forth at length.
22. EFFECT OF AMENDMENT
This Second Amendment modifies the Lease. In the event of any conflict or
discrepancy between the Lease and/or any other previous documents between the
parties and the provisions of this Amendment, then the provisions of this
Amendment shall control. The parties agree that the square footage figures set
forth herein are for reference purposes only, and that the amounts payable
hereunder will not vary based on any measurements taken subsequent to the
execution hereof.
23. BROKERAGE COMMISSIONS
Neither party has been represented by a real estate broker in regard to
the transaction represented by this Amendment, and no brokerage commissions or
finder's fees are due in regard to the transaction. Tenant will hold Landlord
harmless and indemnify Landlord against any claim, loss, or damage, including
reasonable attorney's fees, in regard to a brokerage commission or finder's fee
claim by a broker or finder under contract with or working with Tenant.
Landlord will hold Tenant harmless and indemnify Tenant against any claim,
loss, or damage, including reasonable attorney's fees, in regard to a brokerage
commission or finder's fee claim by a broker or finder under contract with or
working with Landlord.
24. ENTIRE AGREEMENT
The Lease, as modified by this Second Amendment, constitutes and contains
the entire agreement between the parties, and there are no binding agreements
or representations between the parties except as expressed herein. Tenant
acknowledges
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Second Amendment to Lease Page 17 of 17
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that neither Landlord nor Landlord's Agents have made any legally binding
representations or warranties as to any matter except for such matters which
are expressly set forth herein, including any representations or warranties
relating to the condition of the Premises or the improvements thereto or the
suitability of the Premises or the Project for Tenant's business.
LANDLORD: TENANT:
50 West San Xxxxxxxx Associates, AboveNet, a California corporation
a California limited partnership
By: SFG San Xxxx Company, LLC By: /s/ XXXXXXX XXXXXX
an Indiana limited liability ------------------------------------
company, its general partner Xxxxxxx Xxxxxx, Executive V.P. & CFO
------------------------------------
By: Xxxxxx Xxxxx & Associates, [Print Name and Title]
Inc., an Indiana corporation,
its manager Dated: 2/24/98
---------
By: /s/ XXXXXXX XXXXX
------------------------------
Xxxxxxx Xxxxx, President
Dated:
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[FLOOR PLAN]
