Attached files
Exhibit
10.1
FIRST AMENDMENT TO DEED OF
LEASE
THIS FIRST AMENDMENT TO DEED OF
LEASE (“First
Amendment”) is dated as of October 1, 2009 (the “Effective
Date”), by and between
GRIZZLY VENTURES LLC, a Delaware limited liability company (“Landlord”),
and RACKSPACE US, INC.,
a Delaware corporation (“Tenant”).
W
I T N E S S E T H:
WHEREAS, Landlord and Tenant
entered into that certain Deed of Lease dated February 5, 2009, (the “Original
Lease”), pursuant to which Landlord leased to Tenant, and Tenant leased
from Landlord, (i) a computer room designated as Pod 8b; (ii) storage space
designated as Storage Room No. 108A and (iii) office space designated as Office
No. 3 and Office No. 4, in the data center facility commonly known as
“ACC4,” located at 44480 Hastings Drive, in the Ashburn Corporate Center,
Ashburn, Virginia (the “Building”);
and
WHEREAS, Landlord and Tenant
now desire to amend the Original Lease in the manner set forth below, upon and
subject to the terms, covenants and conditions hereinafter set
forth.
NOW, THEREFORE, in
consideration of the mutual covenants and agreements contained herein, and other
good and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties agree as follows:
1. Recitals; Defined
Terms. The foregoing recitals are hereby incorporated into
this First Amendment by reference, as if fully set forth in this first
paragraph. Capitalized terms not otherwise defined herein shall have the same
meaning as set forth in the Original Lease, as amended hereby. As of
the Effective Date, the term “Lease”
shall mean the Original Lease, as amended by this First Amendment.
2. Tenant’s Additional Metering
Apparatus. Tenant has been permitted to install, at its sole
cost, a redundant set of current transformers and related circuitry and
facilities, including communications connectivity equipment (hereinafter
collectively referred to as “Tenant’s Metering
Apparatus”), on the incoming sources of the Critical Load Power for the
Premises (the “D-Boards”). Tenant’s
installation of Tenant’s Metering Apparatus shall be subject to the terms and
provisions of Article IX of the Original Lease. Without limiting the
foregoing, Landlord acknowledges that it approved Tenant’s installation of
Tenant’s Metering Apparatus on the D-Boards and the plans and specifications
therefor, pursuant to Section 9.2 of the Original Lease. Tenant’s
installation of Tenant’s Metering Apparatus is further subject to the following
terms and conditions:
(a) Tenant
acknowledges and agrees that Tenant’s Metering Apparatus shall be used solely
for the acquisition of data to assist Tenant in its power and space management
efforts within the Premises. Landlord’s metering equipment shall be
utilized for all other purposes under the Lease, including, but not limited to,
determining Tenant’s Critical Load Power and CRAC usage under Section 13.4
thereof and determining Critical Load Power quality and availability under Exhibit F of the
Lease, including the occurrence of any Power Deficiencies, HVAC Deficiencies
and/or Services Interruption Events.
(b) Without
limiting the generality of the terms and provisions in this Section 2 above,
Landlord acknowledges that, prior to scheduling the installation of Tenant’s
Metering Apparatus, Tenant submitted to Landlord, and Landlord approved, “Specification
Documents,” including drawings and plans, specifications of all proposed
materials and wiring schematics, for Tenant’s Metering Apparatus.
(c) Landlord
acknowledges that it: (i) inspected the work methods and materials during and
after installation of Tenant’s Metering Apparatus; and (ii) deemed the work not
to be substandard or inconsistent with the Specification
Documents. Landlord shall have a continuing right to inspect the
Tenant’s Metering Apparatus and, to the extent Landlord reasonably determines
that the installation thereof was substandard or inconsistent with the
Specification Documents, any corrective action that Landlord may reasonably
require in connection therewith shall be performed at Tenant’s sole
expense.
(d) Tenant
shall be solely responsible for the installation, repair and maintenance of
Tenant’s Metering Apparatus, provided, that, to the extent any repairs or
maintenance of Tenant’s Metering Apparatus are required due to the negligence or
willful acts or omissions of Landlord, its agents, contractors or employees,
such repairs and/or maintenance shall be at Landlord’s cost and
expense. Prior to performing repairs or maintenance to Tenant’s
Metering Apparatus that would require access to the current transformers,
connections or wiring to the D-Boards, Tenant shall coordinate and schedule such
repairs or maintenance with Landlord’s data center operations
personnel. Landlord, on behalf of itself and its data center
operations personnel, agrees to reasonably cooperate with Tenant in connection
with Tenant’s repair and maintenance of Tenant’s Metering
Apparatus.
(e) Tenant
covenants and agrees that the installation and operation of Tenant’s Metering
Apparatus shall not interfere with Landlord’s obligations under the Lease,
including, but not limited to Landlord’s obligations set forth in Article XIII
and Exhibit F
thereof, and shall not interfere with Landlord’s operations within the
Building. For purposes of the foregoing sentence, the term
“interfere” shall not be deemed to include any incidental interference that has
no adverse impact on Landlord’s obligations under the Lease or operations within
the Building. In the event that Tenant’s (or its agents’,
contractors’ or employees’) installation and/or operation of Tenant’s Metering
Apparatus, or, except to the extent caused by the negligence or willful acts or
omissions of Landlord, its agents, contractors or employees, the malfunctioning
of Tenant’s Metering Apparatus, causes damage to Landlord’s electrical
distribution systems serving the Premises (subject to the exception set forth
herein above, the duration of any such event (ceasing upon successful repair of
the damage or when successful repair of such damage would have occurred if
Landlord had pursued said repair promptly and diligently), a “Tenant’s Metering
Apparatus Damage Event”), as reasonably determined by Landlord, Tenant
shall be responsible for all costs to repair such damage and shall pay such
costs as Additional Rent within thirty (30) days after receipt of an invoice of
the costs of such repairs from Landlord. During (i) any Tenant’s
Metering Apparatus Damage Event or (ii) any reasonable period that it is
reasonably necessary for Landlord’s electrical distribution systems to be
de-energized to allow for the repair of Tenant’s Metering Apparatus (a “De-energized
Period”), (A) Landlord’s obligations under Article XIII and Exhibit F under the
Lease with respect to the provision of Critical Load Power to the Premises shall
be suspended, but only to the extent Landlord’s inability to satisfy said
obligations is caused by such Tenant’s Metering Apparatus Damage Event and/or
De-energized Period, and (B) notwithstanding any provision of the Lease to the
contrary, no Power Deficiency caused by such Tenant’s Metering Apparatus Damage
Event and/or De-energized Period shall constitute a Power Interruption Event for
purposes of Exhibit
F of the Lease. Notwithstanding the foregoing, Landlord shall
use commercially reasonable efforts to avoid Power Deficiencies and other
interruptions to the Premises, and, except as expressly provided above, shall
satisfy Landlord’s obligations under the Lease, including, without limitation,
Landlord’s obligations set forth in the penultimate grammatical paragraph of
Section 13.2 of the Lease, during a Tenant’s Metering Apparatus Damage Event or
a De-energized Period.
- 2
-
(f) In
the event that during the Lease Term, in Landlord’s sole but reasonable
determination, the location of Tenant’s Metering Apparatus (or any portion
thereof) physically conflicts with Landlord’s operations within the Building,
including, but not limited to construction of improvements or installation of
equipment, upon the receipt of written notice from Landlord, Tenant shall
relocate Tenant’s Metering Apparatus (or portion thereof, if applicable), at
Tenant’s sole cost, to a location designated by Landlord.
(g) In
the event that during the Lease Term, there is a four percent (4%) or greater
discrepancy between the Premises’ electrical current and/or Critical Load Power
readings from Tenant’s Metering Apparatus and Landlord’s metering equipment, the
parties agree to work cooperatively to conduct a recalibration exercise for
Tenant’s Metering Apparatus and Landlord’s metering equipment and to determine
the reason for, and to reasonably resolve, such discrepancy. The
costs associated with such recalibration shall be borne equally by the
parties.
(h) Upon
the expiration or earlier termination of the Lease Term, Tenant shall remove
Tenant’s Metering Apparatus and shall repair or replace any damage or injury to
all or any portion of the Premises resulting from the installation and/or
removal of Tenant’s Metering Apparatus.
(i) In
addition to Tenant’s general indemnification of Landlord under Section 14.2(a)
of the Lease, Tenant hereby expressly agrees to indemnify and hold Landlord
harmless against all losses, costs, damages, claims, liabilities, suits, and
causes of action, including reasonable attorneys’ fees and costs of litigation,
suffered by or claimed against Landlord, directly or indirectly, based on or
arising out of the installation, operation, use, maintenance, repair or removal
of Tenant’s Metering Apparatus, including, without limitation, any accident,
injury, or damage whatsoever caused to any person, contractor, tenant or third
party, or to the property or operations of Landlord or any person, contractor,
tenant or third party, except to the extent caused by the negligence or willful
acts or omissions of Landlord, its agents, contractors or
employees. In no event, however, shall Tenant, Guarantor or any of
Tenant’s Representatives (nor any past, present or future board member, partner,
trustee, director, member, officer, employee, agent, representative or advisor
of any of them), under any circumstances under this Section 2(i) be liable for: (I) any
exemplary or punitive damages or (II) any consequential or indirect damages (or
for any interruption of or loss to business) to the extent that (A) Tenant is
not covered therefor by insurance carried, or required to be carried, under this
Lease, and (B) provided that Tenant is carrying such required insurance, Tenant
does not receive proceeds therefor.
- 3
-
3. Modifications to Original
Lease.
(a) The
following sentence shall be added as the final sentence to the penultimate
grammatical paragraph of Section 13.2 of the Original Lease:
“Without
limiting the foregoing, Landlord represents, warrants and covenants that,
throughout the Lease Term, Landlord shall schedule and perform routine
maintenance of the UPSs and Engine Generators of the Building only in a manner
which, subject to unplanned interruptions and breakdowns, will maintain, at a
minimum, the UPSs in the Building in a N+1 configuration.”
(b) The final
sentence of Section 14.1 of the Original Lease is hereby amended such that
subsection (b)(ii)(B) thereof is hereby deleted in its entirety and the
following is inserted in lieu thereof:
“(B)
provided that Landlord is carrying such required insurance, Landlord does not
receive proceeds therefor, all in connection with or relating to this
Lease.”
(c) The final
sentence of Section 14.2(a) of the Original Lease is hereby amended such that
subsection (II)(B) thereof is hereby deleted in its entirety and the following
is inserted in lieu thereof:
“(B)
provided that Tenant is carrying such required insurance, Tenant does not
receive proceeds therefor.”
(d) The
following paragraph shall be added as Section E, entitled “Reporting,” to
Exhibit F to the Original Lease:
“E. REPORTING
Landlord
agrees to provide Tenant, at Landlord’s sole cost and expense and without
reimbursement from Tenant as part of Operating Expenses, not less than one (1)
time each year during the Lease Term, a so-called SAS70 Type II report performed
by a nationally recognized public accounting firm engaged by Landlord for such
report. Each annual SAS70 Type II report prepared by Landlord shall audit
the time period from January 1 to September 30, or such other nine (9) month
period as may be mutually agreed upon in writing by the parties during the Lease
Term, (the “Initial Audit
Period”), with an update letter subsequently delivered covering the three
(3) month period not included within the Initial Audit Period, and each SAS70
Type II report and/or update letter shall be delivered to Tenant within sixty
(60) days after the end of the applicable time period. Furthermore,
Landlord will cooperate with, and use commercially reasonable efforts to assist,
Tenant with respect to Tenant’s compliance obligations and reporting,
including, without limitation, (i) Tenant’s preparation of independent
SAS70 Type II reports, (ii) Tenant’s PCI DSS compliance and (iii) Tenant’s
ISO27001 compliance. Such cooperation shall include, without
limitation, allowing Tenant and Tenant’s auditors and consultants access to
the Building or such other location reasonably agreed to by Landlord and Tenant,
in order to review testing logs and information and maintenance logs, schedules
and other information regarding the Building’s electrical and
mechanical systems, as well as evidence of the Building’s physical controls and
environmental controls. Notwithstanding the foregoing, Tenant’s
preparation of independent SAS70 Type II reports, Tenant’s PCI DSS compliance,
Tenant’s ISO27001 compliance and any other of Tenant’s compliance obligations
and reporting, shall be prepared and/or carried out at Tenant’s sole cost and
expense. ”
- 4
-
4. Other Terms and
Provisions.
(a) Conflicts. If
any provision of this First Amendment conflicts with the Original Lease, the
provisions of this First Amendment shall control.
(b) Ratification. Except
as otherwise expressly modified by the terms of this First Amendment, the
Original Lease shall remain unchanged and continue in full force and
effect. All terms, covenants and conditions of the Original Lease not
expressly modified herein are hereby confirmed and ratified and remain in full
force and effect, and, as further amended hereby, constitute valid and binding
obligations of the parties hereto enforceable according to the terms
thereof.
(c) Binding
Effect. All of the covenants contained in this First
Amendment, including, but not limited to, all covenants of the Original Lease as
modified hereby, shall be binding upon and shall inure to the benefit of the
parties hereto and their respective heirs, legal representatives and permitted
successors and assigns.
(d) Effectiveness. The
submission of this First Amendment shall not constitute an offer, and this First
Amendment shall not be effective and binding unless and until fully executed and
delivered by each of the parties hereto.
(e) Counterparts. This
First Amendment may be executed in multiple counterparts, each of which shall be
an original, but all of which shall constitute one and the same First
Amendment. Additionally, the parties hereto hereby covenant and agree
that, for purposes of facilitating the execution of this First Amendment, (i) a
facsimile signature shall be deemed to be an original signature and (ii) a
telecopy delivery or electronic delivery (i.e., the transmission by any part of
his, her or its signature on an original or any copy of this First Amendment via
telecopy, fax machine or e-mail) shall be deemed to be the delivery by such
party of his, her or its original signature hereon.
(f) Entire
Agreement. The terms and provisions set forth in this First
Amendment constitute the entire agreement and understanding between Landlord and
Tenant with respect to the specific subject matter addressed herein, and are
hereby deemed to supersede all prior agreements and understandings (including,
without limitation, those expressed originally in the Lease, to the extent
inconsistent with the terms and provisions of this First Amendment, and any
prior oral or written communications between Landlord and Tenant, or their
respective agents or representatives) concerning the specific subject matter
hereof. No subsequent modification or amendment of the terms and
provisions of this First Amendment shall be effective unless in writing and
signed by Landlord and Tenant.
- 5
-
(g) Authority. By
its execution and delivery hereof, Landlord does hereby certify and confirm to
Tenant that the undersigned party executing this First Amendment as Landlord is,
in fact, presently the “Landlord” under the Lease, that the person(s) or
party(ies) executing this First Amendment on behalf of Landlord has/have done so
with all requisite due authority, with the effect that this First Amendment, as
so executed, constitutes the valid and binding agreement of Landlord,
enforceable against Landlord in accordance with the terms and provisions hereof,
and that this First Amendment has been duly executed and delivered by Landlord
without the necessity of the joinder of any third party. By its
execution and delivery hereof, Tenant does hereby certify and confirm to
Landlord that the person(s) or party(ies) executing this First Amendment on
behalf of Tenant has/have done so with all requisite due authority, with the
effect that this First Amendment, as so executed, constitutes the valid and
binding agreement of Tenant, enforceable against Tenant in accordance with the
terms and provisions hereof, and that this First Amendment has been duly
executed and delivered by Tenant without the necessity of the joinder or consent
of any third party.
(h) Construction. Descriptive
headings used herein are for convenience of reference only and shall not control
or affect the meaning or construction of any provision set forth in this First
Amendment. Where required for proper interpretation, words used
herein in the singular tense shall include the plural, and vice versa; the
masculine gender shall include the neuter and the feminine, and vice
versa. As used in this First Amendment, the words “hereof,” “herein,”
“hereunder” and words of similar import shall mean and refer to this entire
First Amendment and not to any particular section or paragraph of this First
Amendment, unless the context clearly indicates otherwise. If any
provision hereof is for any reason unenforceable or inapplicable, the other
provisions hereof will remain in full force and effect in the same manner as if
such unenforceable or inapplicable provision had never been contained
herein. This First Amendment shall be construed without presumption
of any rule requiring construction to be made against the party causing same to
be drafted. This First Amendment shall be construed and interpreted
pursuant to the laws of the Commonwealth of Virginia.
(Signatures
on Next Page)
- 6
-
IN WITNESS WHEREOF, Landlord
and Tenant have executed this First Amendment to Deed of Lease under seal on or
as of the day and year first above written.
| LANDLORD: | |||||
| GRIZZLY VENTURES LLC, | |||||
| a Delaware limited liability company | |||||
|
By:
|
Grizzly
Equity LLC, a Delaware limited
|
||||
|
liability
company, its Manager Member
|
|||||
|
By:
|
DuPont
Fabros Technology, L.P., a
|
||||
|
Maryland
limited partnership, its
|
|||||
|
Managing
Member
|
|||||
|
By:
|
Dupont
Fabros Technology,
|
||||
|
Inc.,
a Maryland corporation,
|
|||||
|
its
General Partner
|
|||||
|
By:
|
/s/
Hossein Fateh
|
||||
|
Name:
|
Hossein
Fateh
|
||||
|
Title:
|
President
& CEO
|
||||
| TENANT: | ||
| RACKSPACE US, INC., | ||
| a Delaware corporation | ||
| By: | /s/ Alan Schoenbaum | |
| Name: | Alan Schoenbaum | |
| Title: | Sr. Vice President, General Counsel | |
- 7
-