FIRST AMENDMENT TO LEASE
(EXPANSION)
THIS AMENDMENT, dated this 19h day of March, 1999, between CB Graham
International, Inc., a Delaware corporation ("Landlord") and iXL-San Diego,
Inc., a Delaware corporation ("Tenant"), for the premises located in the City
of Carlsbad, County of San Diego State of California, commonly known as
2121 Palomar Airport Road, Suite 200 (the "Premises").
W I T N E S S E T H :
WHEREAS, Landlord and Tenant, entered into that certain Lease dated
July 27, 1998 (hereinafter to as the "Lease"); and
WHEREAS, Landlord and Tenant desire to amend the Lease as more fully set
forth below.
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS. Unless otherwise specifically set forth herein, all
capitalized terms herein shall have the same meaning as set forth in the
Lease.
A. PREMISES to include an expansion of 3,537 rentable square feet into
2111 Palomar Airport Road, Suite 250 increasing the total Premises to
10,817 rentable square feet. Expansion includes 557 rentable square feet,
formerly known as Suite 260, to be added as soon as available,
approximately May 15, 1999. Exhibit A-1 attached for outline of Premises.
B. COMMENCEMENT DATE for expanded Premises will be April 5, 1999.
C. TERMINATION DATE for entire Premises shall be August 31, 2003.
D. INITIAL ANNUAL RENT shall be $215,205.24, subject to paragraph E
below.
E. INITIAL MONTHLY INSTALLMENT of Annual Base Rent shall be $17,933.77
with increases as follows (Article 38 adjusted as follows):
Base Rent for the period Apr. 1, 1999 through Aug. 31, 1999 $17,933.77 per month
Base Rent for the period Sept. 1, 1999 through Mar. 31, 2000 $20,691.72 per month
Base Rent for the period Apr. 1, 2000 through Aug. 31, 2000 $20,969.01 per month
Base Rent for the period Sept. 1, 2000 through Mar. 31, 2001 $21,478.61 per month
Base Rent for the period Apr. 1, 2001 through Aug. 31, 2001 $21,766.99 per month
Base Rent for the period Sept. 1, 2001 through Mar. 31, 2002 $22,203.79 per month
Base Rent for the period Apr. 1, 2002 through Aug. 31, 2002 $22,503.71 per month
Base Rent for the period Sept. 1, 2002 through Mar. 31, 2003 $23,026.11 per month
Base Rent for the period Apr. 1, 2003 through Aug. 31, 2003 $23,338.03 per month
The monthly rate will be reduced proportionately until improvements for the
2,980 rentable square foot area (based on $5,840.80 per month) and then the
557 rentable square foot (based on $1,091.72 per month) space are
substantially completed. The 2,980 square foot portion is ready for occupancy
as of April 5, 1999 therefore rent for April 1999 shall be $16,063.28 and May
1999 shall be $16,842.05. June 1999 shall be dependent upon the commencement
date for the expansion into what is formerly known as Suite 260.
F. PROPORTIONATE SHARE shall be 8.17% based on a project size of 132,420
rsf.
G. SECURITY DEPOSIT shall be $25,671.83 subject to the terms in Article
5. Landlord acknowledges that Landlord currently holds $16,816.80
previously deposited by Tenant in connection with the master lease and
Tenant is required to include a check for only $8,855.03 with the return of
this executed First Amendment to Lease.
H. TENANT IMPROVEMENTS (Exhibit B-1) Landlord to provide an $11/usf
($11 x 3103 usable square feet = $34,133) allowance paid by Landlord (not
to exceed $34,133) to modify
(AFFIX CORPORATE SEAL)
Suite 250 and what was formerly known as Suite 260 per details and working
drawings approved by Tenant in accordance with Exhibit B-1 to this
Amendment.
I. UTILITIES (Article 13) are provided to Suite 250 and what was
formerly known as Suite 260 via separate electric meters and Tenant shall
put the accounts for meters serving the space occupied in the 2111 building
in their name and pay the provider directly. The Building hours for HVAC are
7 am to 6 pm Monday through Friday and 8 am to 1 pm on Saturday (Sundays
and legal holidays excepted). After-hours HVAC is subject to fees, but
not to exceed $15 per hour per building address during the term of this
Lease.
J. RIGHT OF FIRST OFFER on contiguous space is hereby provided to Tenant
for Suite 270 at 2111 Palomar Airport Road. Provided Tenant is not then in
default under the terms, covenants and conditions of the Lease beyond
applicable notice and cure periods, Tenant shall have the right to lease
approximately 1,482 square feet (the "Expansion Premises") at such time as
the Expansion Premises is vacated by the prior tenant. In such event,
Landlord shall give written notice to Tenant of the availability of the
Expansion Space and the terms and conditions on which Landlord intends to
offer it to the public and Tenant shall have a period of ten (10) business
days from receipt of Landlord's notice in which to exercise Tenant's
right to lease the Expansion Premises pursuant to the terms and conditions
contained in Landlord's notice, failing which Landlord may lease the
Expansion Premises to any third party on whatever basis Landlord desires,
and Tenant shall have no further rights with respect to the Expansion
Premises. If Tenant exercises an expansion option hereunder, effective as
of the date Landlord delivers the Expansion Premises (the "Delivery Date"),
the Expansion Premises shall automatically be included within the Premises
and subject to all the terms and conditions of the Lease, except as set
forth in Landlord's notice and as follows: (a) Tenant's Proportionate Share
shall be recalculated, using the total square footage of the Premises, as
increased by the Expansion Premises; (b) unless negotiated otherwise, the
Expansion Premises shall be leased on an "as is" basis and Landlord shall
have no obligation to improve the Expansion Premises or grant Tenant any
improvement allowance thereon; and (c) if requested by Landlord, Tenant and
Landlord shall, prior to the beginning of the term for the Expansion
Premises, execute a written memorandum confirming the inclusion of the
Expansion Premises and the Annual Rent for the Expansion Premises.
K. FURTHER EXPANSION COORDINATION. Providing Tenant has not been in
default during the term of this Lease, Landlord shall use its best business
efforts to accommodate Tenant and any affiliate of Tenant the opportunity
to expand within the Building complex known as Carlsbad Executive Plaza.
Should Landlord be unable to accommodate either Tenant or an affiliate's
growth need, Tenant shall be permitted to exercise the Option To Terminate
(Article 40) for the entire Premises covered under this Lease and its
Amendments or Tenant shall be allowed to reduce the rentable square footage
of the Premises to either of the demised suites in either building under the
terms of Article 40 of the master Lease and retain the terms and conditions
of the master Lease. The termination formula shall be prorated based on
length of term remaining and square footage of the demised premises
retained by Tenant. Landlord shall use its best business efforts to
accommodate any affiliate of Tenant that meets the financial requirements
of the Landlord should they desire to retain a demised portion of the
Premises subject to then-market rent.
2. INCORPORATION. Except as modified herein, all other terms and conditions
of the Lease between the parties above described, as attached hereto, shall
continue in full force and effect.
3. LIMITATION OF LANDLORD'S LIABILITY. Redress for any claims against
Landlord under this Amendment or under the Lease shall only be made against
Landlord to the extent of Landlord's interest in the property to which the
Premises are a part. The obligations of Landlord under this Amendment and
the Lease shall not be personally binding on, nor shall any resort be had to
the private properties of, any of its trustees or board of directors and
officers, as the case may be, the general partners thereof or any
beneficiaries, stockholders, employees or agents of Landlord, or its
investment manager.
4. Permitted Sublease. Landlord hereby acknowledges and agrees that Tenant
may sublease the additional premises added to this Amendment consisting of
approximately 3,537 rentable square feet known as 2111 Palomar Airport
Road, Suite 250 as shown on Exhibit A-1 to Kinzan.com. Landlord's separate
consent shall be prepared and attached to said sublease.
(AFFIX CORPORATE SEAL)
Notwithstanding any provision of the Lease to the contrary, Landlord
agrees that it is not entitled to share in any profits which Tenant may
obtain as a result of the sublease to Kinzan.com and waives any recapture
right which it may have with respect to the premises sublet to Kinzan.com.
IN WITNESS WHEREOF, Landlord and Tenant have executed the Amendment as
of the day and year first written above.
LANDLORD: TENANT: GUARANTOR:
CB Graham International, Inc., iXL-San Diego, Inc., iXL Holding, Inc.,
a Delaware corporation a Delaware corporation a Delaware corporation
BY: RREEF Management Company, BY: /s/ David G. Watkins BY: /s/ James V. Sanding
a Delaware corporation ------------------------ ----------------------
David G. Watkins PRINT: James V. Sanding
BY: /s/ Jill E. Shanahan ---------------------
---------------------------
Jill E. Shanahan
TITLE: Vice President TITLE: President TITLE: EVP
--------------------
DATE: DATE: 4/21/99 DATE: 4/22/99
--------------------------- ------------------------- --------------------
(AFFIX CORPORATE SEAL)
EXHIBIT A-1
This Exhibit A-1 is attached to and made a part of the
First Amendment to Lease dated March 19, 1999,
between CB Graham International, Inc., a Delaware corporation, ("Landlord"),
and iXL-San Diego, Inc., a Delaware corporation ("Tenant"),
for the Premises located in the County of San Diego, State of California,
commonly known as 2121 Palomar Airport Rd., Suite 200, Carlsbad, CA 92009.
Exhibit A-1 is intended only to show the general layout of the Premises of
the beginning of the Term of this First Amendment to Lease. It does not in
any way supersede any of Landlord's rights set forth in Section 17.2 with
respect to arrangements and/or locations of common areas of the Building and
changes in such arrangements and/or locations. It is not to be scaled, any
measurements or distances shown should be taken as approximate.
[MAP]
EXHIBIT B-1
This Exhibit B-1 is attached to and made a part of the
First Amendment to Lease dated March 19, 1999,
between CB Graham International, Inc., a Delaware corporation, ("Landlord"),
and iXL-San Diego, Inc., a Delaware corporation ("Tenant"),
for the Premises located in the County of San Diego, State of California,
commonly known as 2121 Palomar Airport Rd., Suite 200, Carlsbad, CA 92009.
TENANT IMPROVEMENTS
FOR 2111 PALOMAR AIRPORT ROAD, SUITE 250
1. RESPONSIBILITY FOR THE WORK.
1.1 Except to the extent otherwise provided in Paragraphs 1.2 and 1.3,
Landlord will, at its sole cost and expense, subject to any maximum
allowance, through its architects furnish architectural, mechanical,
and electrical engineering plans required for the performance of the
work listed on the attached SCHEDULE I ("Landlord's Work").
1.2 Tenant may request work ("Tenant's Requested Work") not conforming
with, or in addition to, Landlord's Work. If Landlord approves such
request in accordance with the Lease, any architectural, mechanical,
and electrical plans and specifications required for the Tenant's
Requested Work shall be furnished, at Tenant's sole costs and expense,
by Landlord's architects and engineers.
1.3 Any interior decorating services which are not included in the
Landlord's Work or which Tenant desires to upgrade beyond the quality
level which Landlord is obligated to deliver, such as selection of wall
paint colors and/or wall coverings, fixtures, non-building standard
carpet, and any or all other decorator items required by Tenant in the
performance of said work referred to hereinabove in Paragraphs 1.1 and
1.2 shall be at the Tenant's sole cost and expense.
1.4 Landlord shall diligently pursue the preparation of all plans and
specifications for the improvements provided for in Paragraphs 2 and 3.
All such plans shall be approved by Tenant, which approval shall not be
unreasonably withheld. Complete plans and specifications and a cost
estimate for the portion of the work covered thereby to be borne by
Tenant shall be approved by Tenant within three (3) days of receipt
from Landlord.
2. COMPLETION OF LANDLORD'S WORK. Landlord will, at its sole cost and expense,
subject to any maximum allowance, furnish and install all of Landlord's Work
in accordance with the applicable provisions of the Lease.
3. CAP ON LANDLORD'S COST. Provided the Lease is in full force and effect and
Tenant is not in default thereunder beyond applicable notice and cure
periods, Landlord hereby agrees to pay toward the cost Landlord's Work an
amount equal to the lesser of: (i) the actual cost of Landlord's Work; or
(ii) $11.00 per useable square foot (approximately 3,103 usf) (the
(AFFIX CORPORATE SEAL)
"Allowance"). Should estimate of all costs exceed Allowance, Tenant to pay
to Landlord the amount the estimated costs exceed Allowance within three (3)
days of written request from Landlord.
4. ARCHITECT'S CERTIFICATE. The certificate of Landlord's architect that the
work to be done by Landlord pursuant to Paragraphs 2 and 3 above has been
substantially completed shall be adequate evidence that Suite 250 is
completed in accordance with the requirements of the Lease and that
possession thereof has been deemed delivered to Tenant, for all purposes
of the Lease, including the commencement of the payment of rent. Tenant
may submit a written punchlist for deficiencies in the above improvements
within thirty (30) days of possession of the Premises.
5. COMPLETION OF TENANT'S REQUESTED WORK. Provided the plans and
specifications and cost estimate are approved by the date provided
hereinabove in Paragraph 1.4, Landlord shall cause Tenant's Requested
Work to be installed by Landlord's contractor, but at Tenant's sole cost
and expense. Prior to commencing any such work, Landlord, its contractor,
or its architects and engineers, shall submit to Tenant a written estimate
of the cost thereof. Said cost shall include a construction management fee
payable to Landlord equivalent to 0.0% of the cost of Tenant's Requested
Work. If Tenant shall fail to approve any such estimate within five (5)
days after submission thereof, such failure shall be deemed a disapproval
thereof, and Landlord's contractor shall not proceed with such work.
Tenant agrees to pay Landlord within thirty (30) days upon being billed
therefor, the cost to Landlord of all such Tenant's Requested Work. Such
bills may be rendered during the progress of the performance of the work
and the furnishing and installation of the materials to which such bills
relate. Landlord may require Tenant to deposit the estimated cost of such
work with Landlord prior to the commencement of such work.
SCHEDULE I
LANDLORD'S WORK
Landlord's Work shall be detailed demolition notes for Suite 250 and in
mutually acceptable Working Drawings to be prepared by Landlord's architect
for expanding into Suite 260.
Detailed notes for Suite 250 to include new flooring throughout, paint on all
walls not covered in wall covering material, remove four offices, reconfigure
ceiling grid as needed, adjust window blinds to accommodate removal of walls,
enlarge communications closet, enclose small conference room, relocate one
window, and safe-off electrical to junction boxes above ceiling grid.
Drawings for expansion into Suite 260 to include matching new carpet in Suite
250, demolish demising wall, relocate exit door to incorporate hall into
Premises, and balance air conditioning. Landlord is solely responsible for
all costs of Landlord's Work including Working Drawings, permits and
construction at a cost to not exceed $11.00 per useable square foot
(approximately 3,103 usf).
(AFFIX CORPORATE SEAL)