EXHIBIT 10.49
FIFTH AMENDMENT TO SUBLEASE AGREEMENT
THIS FIFTH AMENDMENT (the "Amendment") is made and entered into as of
the 10th day of July, 2000, by and between EOP-PERIMETER CENTER, L.L.C., a
Delaware limited liability company ("Sublessor"), and INTERLIANT, INC., a
Delaware corporation ("Sublessee").
RECITALS
A. Sublessor (as successor in interest to Southern Company Services, Inc.) and
Sublessee (formerly known as Sage Networks, Inc.) are parties to that
certain sublease agreement dated May 29, 1998 (the "Original Sublease") for
certain space in the building known as 64 Perimeter Center East (formerly
known as Building 64A) located at 00 Xxxxxxxxx Xxxxxx Xxxx, Xxxxxxx,
Xxxxxxx (the "Building"). The Original Sublease has been amended by that
certain First Amendment to Sublease Agreement dated December 9, 1998 (the
"First Amendment"), that certain Second Amendment to Sublease Agreement
dated October 31, 1999 (the "Second Amendment"), that certain Third
Amendment to Sublease Agreement dated February 10, 2000 (the "Third
Amendment"), and that certain Amendment to Sublease dated June 23, 2000
(the "Fourth Amendment") (the Original Sublease, as amended as aforesaid,
is referred as the "Sublease").
B. The premises currently demised under the Sublease are located in the
Building and consist of approximately 22,819 rentable square feet of data
center space (referred to herein as the "Sublease Premises"), comprised of
the following: (i) approximately 7,240 rentable square feet on floor G1 of
the Building described as Suite G-300 (the "Original Data Center
Premises"), (ii) approximately 10,218 rentable square feet on Floor G2 of
the Building described as the "Data Center Expansion Premises" (as defined
in the First Amendment), and (iii) approximately 5,361 rentable square feet
on Floor G2 of the Building described as the "Second Amendment Data Center
Premises" (as defined in the Second Amendment). The premises demised under
the Sublease, as described in this Recital B, collectively are referred to
as the "Original Sublease Premises" or, as appropriate, as the "Original
Data Center Space".
C. The premises demised under the Sublease also previously included
approximately 13,468 rentable square feet on the first floor of the
Building described as the "Temporary Office Space" (as defined in the First
Amendment), but the term for the Temporary Office Space expired on May 15,
2000. Therefore, the Temporary Office Space is no longer included as part
of the premises demised under the Sublease.
D. Sublessee has requested that additional space containing approximately
2,782 rentable square feet described as Suite No. G-255 on Floor G2 of the
Building shown on Exhibit A hereto (the "Expansion Space") be added to the
premises demised under the Sublease. Sublessor is willing to add the
Expansion Space to the Sublease Premises upon the terms and conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, Sublessor and Sublessee agree as
follows:
I. Expansion and Effective Date.
A. Effective as of August 1, 2000 (the "Expansion Effective Date"), the
Sublease Premises, as defined in the Sublease, is increased from
22,819 rentable square feet to 25,601 rentable square feet by the
addition of the Expansion Space, and from and after the Expansion
Effective Date, the Original Sublease Premises (as defined in Recital
B above) and the Expansion Space, collectively, shall be deemed the
Sublease Premises, as defined in the Sublease. The Term for the
Expansion Space shall commence on the Expansion Effective Date and end
on the expiration of the Term, which, unless sooner terminated in
accordance with the Sublease, shall mean February 28, 2006. (Such
date, for purposes of this Amendment and the Sublease, is referred to
as the "Termination Date").
B. The Expansion Space is subject to all the terms and conditions of the
Sublease except as expressly modified herein and except that Sublessee
shall not be
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entitled to receive any allowances, abatements or other financial
concessions granted with respect to the Original Sublease Premises
unless such concessions are expressly provided for herein with respect
to the Expansion Space. The parties agree that the Expansion Space is
also subject to all provisions of the Sublease which are specifically
applicable to Sublessee's data center space within the Sublease
Premises, including, without limitation, Section 8 of the Original
Sublease and Section 4(c) of the Second Amendment.
II. Monthly Base Rent.
In addition to Sublessee's obligation to pay Base Rent for the Original
Sublease Premises, Sublessee shall pay Sublessor Base Rent for the
Expansion Space in 67 monthly installments as follows:
A. Twelve (12) equal installments of $6,108.81 (i.e. $26.35 per annum per
rentable square foot in the Expansion Space) each payable on or before
the first day of each month during the period beginning August 1, 2000
and ending July 31, 2001.
B. Twelve (12) equal installments of $6,291.96 (i.e. $27.14 per annum per
rentable square foot in the Expansion Space) each payable on or before
the first day of each month during the period beginning August 1, 2001
and ending July 31, 2002.
C. Twelve (12) equal installments of $6,479.74 (i.e. $27.95 per annum per
rentable square foot in the Expansion Space) each payable on or before
the first day of each month during the period beginning August 1, 2002
and ending July 31, 2003.
D. Twelve (12) equal installments of $6,674.48 (i.e. $28.79 per annum per
rentable square foot in the Expansion Space) each payable on or before
the first day of each month during the period beginning August 1, 2003
and ending July 31, 2004.
E. Twelve (12) equal installments of $6,873.86 (i.e. $29.65 per annum per
rentable square foot in the Expansion Space) each payable on or before
the first day of each month during the period beginning August 1, 2004
and ending July 31, 2005.
F. Seven (7) equal installments of $7,080.19 (i.e. $30.54 per annum per
rentable square foot in the Expansion Space) each payable on or before
the first day of each month during the period beginning August 1, 2005
and ending February 28, 2006.
All such Base Rent shall be payable by Sublessee in accordance with the
terms of the Sublease.
III. Letter of Credit.
A. Section 7 of the Original Sublease (Letter of Credit) is amended by
changing all references to the amount required under the letter of
credit described therein from $99,999.00 to $191,581.75 (the "Revised
LOC Amount"). Section 7(b) and Section 7(c) of the Original Sublease
are deleted in their entirety, it being agreed that the intended
reductions in the amount required under the letter of credit, as
described in such subsections, are reflected in the Revised LOC Amount
described above. In accordance with the foregoing, Section 9 of the
First Amendment and Section 7 of the Second Amendment are also deemed
deleted and are of no further force or effect. The Replacement Letter
of Credit (as defined below) shall provide that, so long Sublessee is
not late on the payment of any sums payable by Sublessee under the
Sublease during the 12 month period immediately preceding the
effective date of any scheduled reduction in the Revised LOC Amount,
the Revised LOC Amount shall automatically reduce by $8,000.00
effective as of each of July 1, 2001, July 1, 2002, and July 1, 2003.
B. Prior to Sublessee commencing any demolition or construction work in
the Expansion Space, Sublessee shall deliver to Sublessor a
replacement letter of credit (the "Replacement Letter of Credit"), in
the form attached hereto as Exhibit C, for the Revised LOC Amount.
Upon receipt of the Replacement Letter of Credit in the Revised LOC
Amount, Sublessor shall return to Sublessee the
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original letter of credit that Sublessor has in its possession which
was originally delivered pursuant to the terms of Section 7 of the
Sublease.
IV. Sublessee's Share of Other Charges. For the period commencing with the
Expansion Effective Date and ending on the Termination Date, Sublessee
shall pay for its Share of Other Charges applicable to the Expansion Space
in accordance with the terms of Section 28 of the Sublease, as amended.
However, it is specifically agreed that Base Rent for the Expansion Space
includes, and there shall be no separate charge to Sublessee for,
Sublessor's costs and expenses for the maintenance set forth on Exhibit "C"
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attached to the Second Amendment.
V. Improvements to Expansion Space.
A. Condition of Expansion Space. Sublessee has inspected the Expansion
Space and agrees to accept the same "as is" without any agreements,
representations, understandings or obligations on the part of
Sublessor to perform any alterations, repairs or improvements.
B. Responsibility for Improvements to Expansion Space. Sublessee shall
perform improvements to the Expansion Space pursuant to the Work
Letter attached hereto as Exhibit B.
VI. Early Access to Expansion Space. During any period that Sublessee shall be
permitted to enter the Expansion Space prior to the Expansion Effective
Date for reasons other than to commence business operations therein (e.g.,
to perform alterations or improvements, if any), Sublessee shall comply
with all terms and provisions of the Sublease, except those provisions
requiring payment of Base Rent as to the Expansion Space. If Sublessee
takes possession of the Expansion Space prior to the Expansion Effective
Date for purposes of commencing business operations therein, such
possession shall be subject to all the terms and conditions of the Sublease
and this Amendment, and Sublessee shall pay Base Rent and Sublessee's Share
of Other Charges as applicable to the Expansion Space to Sublessor on a per
diem basis for each day of occupancy prior to the Expansion Effective Date.
VII. Other Pertinent Provisions. Sublessor and Sublessee agree that, effective
as of the date of this Amendment (unless different effective date(s) is/are
specifically referenced in this Section), the Sublease shall be amended in
the following additional respects:
A. Address for Rent Payments. Section 1(c) of the Sublease, as amended,
-------------------------
is hereby amended to reflect that payments of Rent shall be addressed
as follows:
Payments of Rent shall be made payable to the order of Equity Office
Properties and forwarded to the following address:
EOP Operating Limited Partnership, as agent
for EOP-Perimeter Center, L.L.C. - Group II
X.X. Xxx 000000
Xxxxxxx, Xxxxxxx 00000-0000
B. Sublessor Notice Addresses. Section 53 of the Sublease, as amended,
--------------------------
is hereby amended to reflect that notices to Sublessor shall be
addressed as follows:
EOP-Perimeter Center, L.L.C.
c/o Equity Office Properties Trust
00 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000
Attention: Building Manager - Group II
With a copy to:
Equity Office Properties Trust
Xxx Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Regional Counsel - Southeast Region
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B. Sublessee Notice Addresses. Section 53 of the Sublease, as
--------------------------
amended, is hereby amended to reflect that notices to Sublessee
shall be addressed as follows:
Interliant, Inc.
00 Xxxxxxxxx Xxxxxx Xxxx, Xxxxx 000
Xxxxxxx, Xxxxxxx 00000
With a copy to:
Interliant, Inc.
0 Xxxxxxxxxxxxxx Xxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: General Counsel
C. Parking. Effective as of the Expansion Effective Date, in
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accordance with Section 8 of the First Amendment (Parking
Arrangements), which replaced Section 35 of the Original
Sublease, Sublessee shall be entitled to 4 additional parking
passes with respect to the Expansion Space for parking by
Sublessee's invitees and employees, free of charge, during the
remainder of the Term on a first come, first serve basis. Such
additional passes are in satisfaction of, and not in addition to,
the 2 parking passes per 1,000 rentable square feet of data
center space which Sublessee would be entitled to under said
Section 8 of the First Amendment with respect to the Expansion
Space. The use of such parking passes shall be subject to the
terms of Section 8 of the First Amendment, as amended. Further,
the parties agree that Sublessor shall have the right from time
to time to promulgate reasonable rules and regulations regarding
the parking garage, surface parking areas, the spaces and the use
thereof, including, but not limited to, rules and regulations
controlling the flow of traffic to and from various parking
areas, the angle and direction of parking and the like. Sublessee
shall comply with and cause its employees to comply with all such
rules and regulations as well as all reasonable additions and
amendments thereto.
D. Deleted Provision. Section 5 of the Sublease (Renewal Right)
------------------
has been exercised and is therefore of no further force or
effect.
VIII. Miscellaneous.
A. This Amendment sets forth the entire agreement between the
parties with respect to the matters set forth herein. There have
been no additional oral or written representations or agreements.
B. Except as herein modified or amended, the provisions, conditions
and terms of the Sublease shall remain unchanged and in full
force and effect.
C. In the case of any inconsistency between the provisions of the
Sublease and this Amendment, the provisions of this Amendment
shall govern and control.
D. Submission of this Amendment by Sublessor is not an offer to
enter into this Amendment but rather is a solicitation for such
an offer by Sublessee. Sublessor shall not be bound by this
Amendment until Sublessor has executed and delivered the same to
Sublessee.
E. The capitalized terms used in this Amendment shall have the same
definitions as set forth in the Sublease to the extent that such
capitalized terms are defined therein and not redefined in this
Amendment.
F. Sublessee hereby represents to Sublessor that Sublessee has dealt
with no broker other than The Xxxxxx Company in connection with
this Amendment. Sublessee agrees to indemnify and hold Sublessor,
its members, principals, beneficiaries, partners, officers,
directors, employees, mortgagee(s) and agents, and the respective
principals and members of any such agents (collectively, the
"Sublessor Related Parties") harmless from all claims of any
brokers claiming to have represented Sublessee other than The
Xxxxxx Company in connection with this
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Amendment. Sublessor hereby represents to Sublessee that
Sublessor has dealt with no broker other than The Xxxxxx Company
in connection with this Amendment. Sublessor agrees to indemnify
and hold Sublessee, its members, principals, beneficiaries,
partners, officers, directors, employees, and agents, and the
respective principals and members of any such agents
(collectively, the "Sublessee Related Parties") harmless from all
claims of any brokers claiming to have represented Sublessor
other than The Xxxxxx Company in connection with this Amendment.
IN WITNESS WHEREOF, Sublessor and Sublessee have duly executed this
Amendment as of the day and year first above written.
SUBLESSOR:
EOP-PERIMETER CENTER, L.L.C., a Delaware
limited liability company
By: EOP Operating Limited Partnership,
a Delaware limited partnership, its sole
member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general partner
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
--------------------------------
Title: V.P. Leasing
-------------------------------
SUBLESSEE:
INTERLIANT, INC., a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxxx
----------------------------------------
Title: SVP of Operations
---------------------------------------
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EXHIBIT A
Expansion Space
[FLOOR PLAN]
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EXHIBIT B
---------
WORK LETTER
-----------
This Exhibit is attached to and made a part of this Amendment dated
July 10, 2000, by and between EOP-PERIMETER CENTER, L.L.C. ("Sublessor") and
INTERLIANT, INC. ("Sublessee") for space in the Building located at 00 Xxxxxxxxx
Xxxxxx Xxxx, Xxxxxxx, Xxxxxxx 00000.
I. Alterations and Allowance.
-------------------------
A. Following the delivery of the Expansion Space by Sublessor, delivery
of the Replacement Letter of Credit to Sublessor, and the full and
final execution and delivery of this Amendment, Sublessee shall have
the right to perform alterations and improvements in the Expansion
Space (the "Initial Alterations"). Notwithstanding the foregoing,
Sublessee and its contractors shall not have the right to perform
Initial Alterations in the Expansion Space unless and until Sublessee
has complied with all of the terms and conditions of Section 16 of the
Sublease, including, without limitation, approval by Sublessor of the
final plans for the Initial Alterations, including the demising wall
referenced in Section B below, and the contractors to be retained by
Sublessee to perform such Initial Alterations. Sublessee shall be
responsible for all elements of the design of Sublessee's plans
(including, without limitation, compliance with law, functionality of
design, the structural integrity of the design, the configuration of
the premises and the placement of Sublessee's furniture, appliances
and equipment), and Sublessor's approval of Sublessee's plans shall in
no event relieve Sublessee of the responsibility for such design.
Sublessor's approval of the contractors to perform the Initial
Alterations shall not be unreasonably withheld. The parties agree that
Sublessor's approval of the general contractor to perform the Initial
Alterations shall not be considered to be unreasonably withheld if any
such general contractor (i) does not have trade references reasonably
acceptable to Sublessor, (ii) does not maintain insurance as required
pursuant to the terms of the Sublease, (iii) does not have the ability
to be bonded for the work in an amount of no less 150% of the cost of
the Initial Alterations, (iv) does not provide current financial
statements reasonably acceptable to Sublessor, or (v) is not licensed
as a contractor in the state/municipality in which the Expansion Space
is located. Sublessee acknowledges the foregoing is not intended to be
an exclusive list of the reasons why Sublessor may reasonably withhold
its consent to a general contractor.
B. In addition to Sublessee's Initial Alterations, Sublessee shall also
install a demising wall, in compliance with applicable building codes,
separating the Expansion Space from the balance of the space on the
floor. Such demising wall shall be installed to Sublessor's reasonable
satisfaction no later than one (1) week following the Expansion
Effective Date. Sublessor shall reimburse Sublessee for the actual
reasonable costs incurred by Sublessee in connection with the
installation of the demising wall, not to exceed $10,000.00. If
Sublessee fails to timely install the demising wall as required in
Section B above, Sublessor may install the demising wall and Sublessee
shall reimburse Sublessor for any actual reasonable costs incurred by
Sublessor in connection with such work exceeding $10,000.00, plus
Sublessee shall pay Sublessor an administrative fee of $1,000.00 to
cover Sublessor's time incurred with the foregoing. Any sums required
to be paid by Sublessee hereunder shall be deemed Rent under the
Sublease.
C. Sublessee agrees to accept the Expansion Space in its "as-is"
condition and configuration, it being agreed that Sublessor shall not
be required to perform any work or, except as provided in Section B
above with respect to the demising wall, incur any costs in connection
with the construction or demolition of any improvements in the
Expansion Space.
D. This Exhibit shall not be deemed applicable to any additional space
added to the original Sublease Premises at any time or from time to
time, whether by any options under the Sublease or otherwise, or to
any portion of the original Sublease
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Premises or any additions to the Expansion Space in the event of a
renewal or extension of the original Term of the Sublease, whether by
any options under the Sublease or otherwise, unless expressly so
provided in the Sublease or any amendment or supplement to the
Sublease.
IN WITNESS WHEREOF, Sublessor and Sublessee have entered into this
Exhibit as of the date first written above.
SUBLESSOR:
EOP-PERIMETER CENTER, L.L.C., a Delaware
limited liability company
By: EOP Operating Limited Partnership, a
Delaware limited partnership, its
sole member
By: Equity Office Properties Trust, a
Maryland real estate investment
trust, its managing general partner
By: /s/ Xxxx Xxxxxxx
----------------------------------
Name: Xxxx Xxxxxxx
--------------------------------
Title: V.P. Leasing
-------------------------------
SUBLESSEE:
INTERLIANT, INC., a Delaware corporation
By: /s/ Xxxxxxxx Xxxxxx
---------------------------------------
Name: Xxxxxxxx Xxxxxx
-------------------------------------
Title: SVP of Operations
------------------------------------
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EXHIBT C
FORM OF LETTER OF CREDIT
-----------------------------
[Name of Financial Institution]
Irrevocable Standby
Letter of Credit
No. ______________________
Issuance Date:______________
Expiration Date: Xxxxx 00, 0000
Xxxxxxxxx: Interliant, Inc.
Beneficiary
-----------
EOP-Perimeter Center, L.L.C.
c/o Equity Office Properties Trust
0 Xxxxx Xxxxxxxxx Xxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Regional Counsel - Southeast Region
Ladies/Gentlemen:
We hereby establish our Irrevocable Standby Letter of Credit in your
favor for the account of the above referenced Applicant in the amount of One
Hundred Ninety One Thousand Five Hundred Eighty One and 75/100 U.S. Dollars
($191,581.75) available for payment at sight by your draft drawn on us when
accompanied by the following documents:
1. An original copy of this Irrevocable Standby Letter of Credit.
2. Beneficiary's dated statement purportedly signed by one of its officers
reading: "This draw in the amount of ______________________ U.S.
Dollars ($____________) under your Irrevocable Standby Letter of Credit
No. ____________________ represents funds due and owing to us as a
result of the Applicant's failure to comply with one or more of the
terms of that certain sublease agreement dated May 29, 1998, as amended
from time to time, by and between EOP-PERIMETER CENTER, L.L.C., a
Delaware limited liability company, as landlord, and INTERLIANT, INC.,
a Delaware corporation, as tenant."
It is a condition of this Irrevocable Standby Letter of Credit that it
will be considered automatically renewed for a one year period upon the
expiration date set forth above and upon each anniversary of such date, unless
at least 60 days prior to such expiration date or applicable anniversary
thereof, we notify you in writing by certified mail, return receipt requested,
that we elect not to so renew this Irrevocable Standby Letter of Credit. A copy
of any such notice shall also be sent to: Equity Office Properties Trust, 0
Xxxxx Xxxxxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx, XX 00000, Attention: Treasury
Department.
In addition, provided that you have not provided us with written notice, prior
to the effective date of any reduction described below, of Applicant's failure
to pay all sums when due under the referenced lease during the 12 months
preceding the effective date of any such reduction, the amount of this
Irrevocable Standby Letter of Credit shall automatically reduce in accordance
with the following schedule:
Effective Date of Reduction New Reduced Amount of Letter of Credit
July 1, 2001 $183,581.75
July 1, 2002 $175,581.75
July 1, 2003 $167,581.75
In addition to the foregoing, we understand and agree that you shall be entitled
to draw upon this Irrevocable Standby Letter of Credit in accordance with 1 and
2 above in the event that we elect not to renew this Irrevocable Standby Letter
of Credit and, in addition, you provide us with a
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dated statement purportedly signed by one of Beneficiary's officers stating that
the Applicant has failed to provide you with an acceptable substitute
irrevocable standby letter of credit in accordance with the terms of the above
referenced lease. We further acknowledge and agree that: (a) upon receipt of the
documentation required herein, we will honor your draws against this Irrevocable
Standby Letter of Credit without inquiry into the accuracy of Beneficiary's
signed statement and regardless of whether Applicant disputes the content of
such statement; (b) this Irrevocable Standby Letter of Credit shall permit
partial draws and, in the event you elect to draw upon less than the full stated
amount hereof, the stated amount of this Irrevocable Standby Letter of Credit
shall be automatically reduced by the amount of such partial draw; and (c) you
shall be entitled to assign your interest in this Irrevocable Standby Letter of
Credit from time to time without our approval and without charge. In the event
of an assignment, we reserve the right to require reasonable evidence of such
assignment as a condition to any draw hereunder.
This Irrevocable Standby Letter of Credit is subject to the Uniform Customs
and Practice for Documentary Credits (1993 revision) ICC Publication No. 500.
We hereby engage with you to honor drafts and documents drawn under and in
compliance with the terms of this Irrevocable Standby Letter of Credit.
All communications to us with respect to this Irrevocable Standby Letter of
Credit must be addressed to our office located at __________________________ to
the attention of _______________________.
Very truly yours,
_______________________
[name]
_______________________
[title}
_______________________
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