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EXHIBIT 10.23
This SUBLEASE made as of March 13, 1998, by KPMG Peat Marwick (USA) LLP, a
Delaware limited liability partnership with offices at Three Xxxxxxxx Xxxxx
Xxxx, Xxxxxxxx, Xxx Xxxxxx 00000 ("SUBLANDLORD"), and AboveNet Communications,
Inc., a California corporation with offices at 00 X. Xxx Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxxxxxxxxx ("SUBTENANT").
W I T N E S S E T H :
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WHEREAS, pursuant to an Office Lease entered into by and between 50 West
San Xxxxxxxx Associates, as Landlord ("OVERLANDLORD"), and Peat, Marwick, Main
& Co., as Tenant ("SUBLANDLORD"), on May 2, 1988, as amended by a First
Amendment to Office Lease entered into August 4, 1989 (the "LEASE"),
Overlandlord demised and Sublandlord leased approximately 48,754 net rentable
square feet (the "PREMISES") in a building known as Fairmont Plaza in Silicon
Valley Financial Center located at 00 Xxxx Xxx Xxxxxxxx Xxxxxx in San Jose,
California (the "BUILDING") for a term August 31, 1998; and
WHEREAS, Subtenant desires to sublease from Sublandlord and Sublandlord is
willing to sublease to Subtenant approximately 10,420 square feet of the
Premises consisting of a portion of the tenth floor of the Building.
NOW, THEREFORE, the parties hereto, for themselves, their heirs,
administrators, legal representatives, successors and assigns, hereby mutually
covenant and agree as follows:
1. Sublease. Sublandlord subleases to Subtenant and Subtenant subleases
from Sublandlord the Subleased Premises for the remainder of the term of the
Lease upon and subject to all of the terms and conditions provided for herein.
Subtenant has received and reviewed an accurate and complete copy of the
Lease. The Lease is in full force and effect; neither Overlandlord nor
Sublandlord is in default thereunder; and there are no other occupancies or
subtenancies affecting he Subleased Premises.
2. Incorporation of Lease. This Sublease is and shall be subject and
subordinate to all of the Lease, which are hereby incorporated into this
Sublease in their entirety except as hereinafter expressly set forth; and
Sublandlord leases the Subleased Premises to Subtenant upon, and Subtenant
accepts the
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Subleased Premises subject to, all the terms and conditions of the Lease.
For purposes of the incorporation of the Lease into this Sublease, the
terms "Landlord" and "Tenant" as used in this Lease shall be deemed to refer to
Sublandlord and Subtenant, respectively, and the term "Premises" shall be
deemed to refer just to the Subleased Premises.
All of the rights and obligations conferred and imposed by the Lease upon
Sublandlord as Tenant thereunder are hereby conferred and imposed upon
Subtenant with respect to the Subleased Premises except as hereinafter
expressly set forth.
Sublandlord shall not be obligated to perform and shall not be liable for
the performance by Overlandlord of any of the obligations of Overlandlord under
the Lease; and Sublandlord shall have no obligation during the Term of this
Sublease, except as explicitly stated in Section 5 hereof, to render any
services to Subtenant or to the Subleased Premises or to expand any funds of
any nature whatsoever for the preservation or repair of the Subleased Premises.
Subtenant shall have no claim against Sublandlord by reason of any default
on the part of Overlandlord; Subtenant shall look solely to Overlandlord for
the furnishing of any services to which Sublandlord may be entitled under the
Lease; and nothing in this Sublease shall authorize Subtenant to represent
Sublandlord in connection with any suit or claim by or against Overlandlord.
Notwithstanding anything to the contrary which might be implied by the
terms and provisions of this Sublease, Overlandlord shall have no obligation to
Subtenant by reason of the Sublease or by reason of Subtenant's occupancy of the
Premises.
3. Sublease Term. The term ("TERM") of this Sublease shall commence on
the later of (i) the execution hereof, and (ii) execution of a consent to
sublease by the Overlandlord (the "COMMENCEMENT DATE") and shall end on August
30, 1998 (the "EXPIRATION DATE").
4. Subrents. Except as hereinafter provided, Subtenant shall pay to
Sublandlord commencing April 1, 1998, without notice or demand and without
abatement, deduction or setoff, in lawful money of the United States of
America, at the office of Sublandlord or at such other place as Sublandlord may
designate, base rent in an amount equal to twenty-four thousand eight dollars
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($24,800.00) Dollars per month ("BASE SUBRENT") in installments due in
advance on the first of each month. If the Commencement Date shall occur
on a day other than the first day of a calendar month, the rent payment
for such calendar month shall be prorated for the period from the
Commencement Date to the last day of the said calendar month and such sum
shall be due and payable on the Commencement Date. Subtenant will not be
responsible for any increases in Base Subrent due to increases in
Overlandlord's Base Rent.
In case Sublandlord fails to make any rent payments to Overlandlord
on any date upon which the same becomes due pursuant to the Lease, and
such failure continues for three (3) days after Overlandlord shall have
give notice of nonpayment to Sublandlord, Subtenant may make rent
payments directly to Overlandlord on the fourth (4th) or fifth (5th) day
following Overlandlord's provision of the above-referenced notice to
Sublandlord. In the event that Subtenant exercises its right pursuant to
this paragraph, Subtenant shall be entitled to a credit from Sublandlord
in the amount of any payments made directly to Overlandlord, such credit
to be applied to the succeeding month's Base Subrent payment due from
Subtenant. No breach or default hereunder shall be attributed to
Sublandlord as a result of Subtenant exercising its right pursuant to
this paragraph.
5. Sublandlord's Services. Sublandlord shall cooperate with
Subtenant and take the actions reasonably required to enforce for the
benefit of Subtenant the obligations of Overlandlord to Sublandlord under
the Lease insofar as they relate to the Subleased Premises, provided all
reasonable out-of-pocket expenses of Sublandlord arising from
Sublandlord's action taken pursuant to the preceding sentence shall be
reimbursed by Subtenant as additional rent under this Sublease.
Otherwise, Sublandlord shall not be obligated to furnish any
services to Subtenant or to the Subleased Premises or to expend any funds
of any nature whatsoever for the preservation or repair of the Subleased
Premises.
6. Inapplicable Lease Provisions. The following provisions of
the Lease shall not apply to or for the benefit of Subtenant:
Section Heading
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2.3 Option to Lease Expansion Areas
2.4 Tenant Improvements
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2.5 Right of First Offer
3.2 Options to Extend Lease Term
4.1 Delay in Construction and Delivery
4.2 Tenant's Rights
4.4 Tenant Inducements
5.1 Base Rent; Additional Rent
5.2 Rent During Extended Term(s)
5.3 Rent for Expansion Areas
5.4 Termination
7.4 Signs; Directory
10.5 Redecorating Allowances
15.4 Tenant's Election
16.5 Tenant's Performance of Landlord's Obligations
7. Notices to and from Overlandlord. Subtenant shall promptly
furnish Sublandlord with copies of all notices which Subtenant shall
receive from Overlandlord and Sublandlord shall promptly furnish
Subtenant with copies of all notices relating to the Subleased Premises
which Sublandlord receives from Overlandlord.
Whenever any notice from Overlandlord or any provision of the Lease
requires any action to be taken by the Tenant with respect to the
Subleased Premises within a limited period of time during the Term, the
Subtenant shall be required to take such action within the period of time
allowed to Sublandlord as Tenant under the Lease less five (5) days.
Whenever any notice from Sublandlord is to be given to Overlandlord
with respect to the Subleased Premises no fewer than a specified number
of days or months prior to a fixed date or deadline during the Term, the
Subtenant shall give such notice to Sublandlord at least five (5) days
prior to latest date for Sublandlord to give such notice to Overlandlord
in a timely manner under the Lease.
8. Notices to and from Sublandlord and Subtenant. Notices and
other communications hereunder to either party shall be in writing only
and shall be given or made by personal delivery, by Federal Express or by
express or certified mail, return receipt requested, if to Sublandlord at
its address as indicated on the first page of the Sublease, and if to
Subtenant at the Subleased Premises. Notices delivered by personal
delivery shall be deemed received on the day of delivery; notices sent by
Federal Express, express mail or certified mail shall be deemed received
upon actual receipt or rejection of delivery.
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9. Overlandlord's Consent. In any case where the rights conferred upon
Subtenant by this Sublease require the consent or approval of Sublandlord, it
shall be a condition precedent to such rights that the prior consent or approval
of Overlandlord shall have been obtained; and Sublandlord shall not have any
duty or responsibility with respect to obtaining the consent or approval of
Overlandlord when the same is required, other than (i) the transmission by
Sublandlord to Overlandlord of Subtenant's request for such consent or approval
and (ii) Sublandlord's cooperation with Subtenant to obtain such approval or
consent which does not require Sublandlord to pay any sum or incur any expense
or to make any material performance or undertaking.
Sublandlord shall not be required to give any consent or approval provided
for in the provisions of the Lease incorporated herein just because Overlandlord
has given consent or approval with respect to the same matter.
For purposes of Section 19.26 of the Lease, Sublandlord's refusal to
consent to or approve any matter or thing, whenever Sublandlord's consent or
approval is required under the provisions of the Lease incorporated herein,
shall not be deemed unreasonable if Overlandlord's consent is also so required
and Overlandlord has refused to give such consent or approval.
10. Brokers. Each party represents and warrants to the other party that
it has not hired, retained or dealt with any finder, consultant, broker, firm or
salesman in connection with this Sublease who is entitled to any brokerage
commission or finder's fee by reason thereof other than NONE, whose fees will be
paid by Sublandlord under a separate agreement; and each party shall defend,
indemnify and hold the other party harmless from and against any and all claims
for brokerage fees or other commissions or fees which may at any time be
asserted against the indemnified party founded upon a claim that the aforesaid
representation and warranty of the indemnifying party is untrue, together with
any reasonable attorneys' fees and disbursements) relating to such claims or
arising therefrom or incurred by the indemnified party in connection with the
enforcement of this indemnification provision.
11. Security Deposit. Subtenant shall deposit with Sublandlord the sum of
none ($ 0 ) Dollars as security for the performance by Subtenant of the terms,
provisions and conditions of this Sublease. In the event that Subtenant fully
performs all of the terms, provisions, covenants and conditions of this
Sublease, and vacates and surrenders the Subleased Premises back to
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Sublandlord in the condition required by the Lease on the last day of the term
hereof, ordinary wear and tear excepted, the foregoing security deposit shall
be returned to Subtenant.
IN WITNESS WHEREOF, Sublandlord and Subtenant have duly authorized,
executed and delivered this Sublease as of the date first above written.
KPMG Peat Marwick (USA) LLP,
Sublandlord
By /s/ XXXXXXX X. XXXXXX
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Name: Xxxxxxx X. Xxxxxx
Title: Director
Real Estate and
Facilities Planning
AboveNet Communications, Inc.
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Subtenant
By /s/ XXXXXXX XXXXXX
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Name: Xxxxxxx Xxxxxx
Title: Exec. V.P. & CFO
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ADDENDUM TO SUBLEASE
1. Parking
Subtenant shall be allowed the use of thirty (30) parking spaces within
the Parking Areas of the Building (as defined in the Office Lease) of which
fifteen (15) shall be within the "On-Site Parking Facilities" (as defined in
the Lease) and fifteen (15) shall be located within the "Off-Site Parking
Facilities." Three of the on-site parking spaces shall be reserved spaces. All
other parking spaces will be non-reserved spaces.
Subtenant will reimburse Sublandlord monthly for Sublandlord's actual
monthly cost to provide these parking spaces to Subtenant.
2. Additional Services
If Subtenant requires additional services such as overtime
air-conditioning, non-standard cleaning or any other service provided by
Overlandlord, Subtenant will contract with and pay Overlandlord directly for
such additional services.
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