SECOND AMENDMENT TO LEASE
(EXPANSION)
THIS AMENDMENT, dated this 1st day of September, 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").
WITNESSETH:
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 1,482 rentable square feet into
2111 Palomar Airport Road, Suite 270 increasing the total Premises to
12,299 rentable square feet. Exhibit A-1 attached for outline of Premises.
B. COMMENCEMENT DATE for expanded Premises will be September 16, 1999.
C. TERMINATION DATE for entire Premises shall be August 31, 2003.
D. INITIAL ANNUAL RENT shall be $284,224.32, subject to paragraph E below.
E. INITIAL MONTHLY INSTALLMENT of Annual Base Rent shall be $23,685.36
with increases as follows (Article 38 adjusted as follows):
Base Rent for Sept. 1, 1999 through Sept. 30, 1999 $22,188.54
Base Rent for Oct. 1, 1999 through Mar. 31, 2000 $23,685.36 per month
Base Rent for Apr. 1, 2000 through Aug. 31, 2000 $23,962.65 per month
Base Rent for Sept. 1, 2000 through Mar. 31, 2001 $24,621.93 per month
Base Rent for Apr. 1, 2001 through Aug. 31, 2001 $24,910.31 per month
Base Rent for Sept. 1, 2001 through Mar. 31, 2002 $25,504.28 per month
Base Rent for Apr. 1, 2002 through Aug. 31, 2002 $25,804.20 per month
Base Rent for Sept. 1, 2002 through Mar. 31, 2003 $26,491.62 per month
Base Rent for Apr. 1, 2003 through Aug. 31, 2003 $26,803.54 per month
September 1999 base rent shall be dependent upon the commencement date for
the expansion into what is formerly known as Suite 270 which is expected
to be prior to September 16th, 1999.
F. PROPORTIONATE SHARE shall be 9.29% based on a project size of
132,420 rsf.
G. SECURITY DEPOSIT shall be $29,483.89 subject to the terms in Article 5.
Landlord acknowledges that Landlord currently holds $25,671.83 previously
deposited by Tenant in connection with the master Lease and the First
Amendment to Lease. Tenant is required to include a check for $3,812.06
with the return of this executed SECOND AMENDMENT TO LEASE.
H. TENANT IMPROVEMENTS (Exhibit B-1) Landlord to provide an $18.59/usf
($18.59 x 1300 usable square feet = $24,167) allowance paid by Landlord (not
to exceed $24,167) to modify Suite 270 per details and working drawings
approved by Tenant in accordance with Exhibit B-1 to this Amendment.
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I. UTILITIES (Article 13) are provided to Suite 270 and the previous
Premises in the 2111 building 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 280 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 1,147 square feet (the "Expansion
Premises") at such time as the Landlord is notified the Expansion
Premises will be 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) 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.
L. SIGNAGE RIGHTS. Tenant is granted the right to place building
signage stating "iXL" on a plaque placed on either corner of the
concrete fascia on the north side of the 2121 building. Such signage
shall conform to building standard materials and installation. The cost
of designing, fabricating, permitting, and installing the sign shall be
entirely that of the Tenant. Landlord shall reasonable approve the
design and installation of the sign prior to permitting and again prior
to installation. When Tenant is required to remove the sign, Tenant
shall pay all costs associated with removal of the sign and repair any
damage to the building caused by installation and/or removal of the sign.
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.
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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 by this Amendment consisting of
approximately 1,482 rentable square feet, formerly known as 2111 Palomar
Airport Road, Suite 270 and as shown on Exhibit A-1 to Kinzan.com.
Sublease shall be for 5,019 rentable square feet and, when combined, known
as 2111 Palomar Airport Road, Suite 250. Landlord's separate consent shall
be prepared and attached to said sublease. 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 WEHREOF, 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-Enterprises, Inc.,
a Delaware corporation a Delaware corporation a Delaware corporation
BY: RREEF Management Company,
a Delaware corporation BY: /s/ David G. Watkins BY: /s/ [ILLEGIBLE]
----------------------------- -------------------------------
David G. Watkins
PRINT: [ILLEGIBLE]
BY: /s/ Jill E. Shanahan ----------------------------
---------------------------
Jill E. Shanahan
TITLE: Vice President TITLE: President TITLE: Chief Financial Officer
----------------------------
DATE: __________________________ DATE: __________________________ DATE: October 26, 1998
----------------------------
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(AFFIX CORPORATE SEAL)
This Exhibit A-2 is attached to and made a part of the
Second Amendment to Lease dated September 1, 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-2 is intended only to show the general layout of the Premises of
the beginning of the Term of this Second 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.
[Diagram]
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EXHIBIT B-2
This Exhibit B-2 is attached to and made a part of the
Second Amendment to Lease dated September 1, 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 EXPANDING 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 cost 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 of Landlord's Work
an amount equal to the lesser of: (i) the actual cost of Landlord's Work;
or (ii) $18.59 per useable square foot (approximately 1,300 usf) (the
"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.
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ARCHITECTS 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 per mutually acceptable Working Drawings to be
prepared by Landlord's architect for expanding into Suite 270.
Detailed notes for Suite 270 to include new flooring throughout to match
existing in Suite 250, paint on all walls not covered in wall covering
material, remove all walls except for conference room, reconfigure ceiling
grid as needed, adjust window blinds to accommodate removal of walls, balance
air conditioning, and safe-off electrical to junction boxes above ceiling
grid.
Drawings for expansion into Suite 270 to include installing one wall with
door and window in the reception area of Suite 250 to create a small room for
computer servers. Air conditioning that serves the computer server room
shall be tied to the existing system and after-hours pump in the server room
in the kitchen area.
Landlord is solely responsible for all costs of Landlord's Work including
Working Drawings, permits and construction at a cost to not exceed $24,167.00.
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