EXHIBIT 10.8
FIRST AMENDED AND RESTATED LEASE AGREEMENT
between
PARKSIDE TOWERS CO-TENANCY
as "LANDLORD"
and
INKTOMI CORPORATION
as "TENANT"
TABLE OF CONTENTS
SECTION PAGE
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1. PREMISES..............................................................6
2. TERM; POSSESSION......................................................6
3. RENT..................................................................8
4. SECURITY DEPOSIT.....................................................16
5. USE AND COMPLIANCE WITH LAWS.........................................18
6. TENANT IMPROVEMENTS & ALTERATIONS....................................20
7. MAINTENANCE AND REPAIRS..............................................22
8. TENANT'S TAXES.......................................................23
9. UTILITIES AND SERVICES...............................................24
10. EXCULPATION AND INDEMNIFICATION......................................26
11. INSURANCE............................................................27
12. DAMAGE OR DESTRUCTION................................................29
13. CONDEMNATION.........................................................30
14. ASSIGNMENT AND SUBLETTING............................................32
15. DEFAULT AND REMEDIES.................................................35
16. LATE CHARGE AND INTEREST.............................................37
17. WAIVER...............................................................37
18. ENTRY, INSPECTION AND CLOSURE........................................37
19. SURRENDER AND HOLDING OVER...........................................38
20. ENCUMBRANCES.........................................................40
21. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS.......................40
22. NOTICES..............................................................41
23. ATTORNEYS' FEES......................................................41
24. QUIET POSSESSION.....................................................42
25. SECURITY MEASURES....................................................42
26. FORCE MAJEURE........................................................42
27. RULES AND REGULATIONS................................................43
28. LANDLORD'S LIABILITY.................................................43
29. CONSENTS AND APPROVALS...............................................43
30. WAIVER OF RIGHT TO JURY TRIAL........................................43
31. BROKERS..............................................................44
32. RELOCATION OF PREMISES...............................................44
33. ENTIRE AGREEMENT.....................................................44
34. MISCELLANEOUS........................................................44
35. AUTHORITY............................................................45
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INDEX OF DEFINED TERMS
Additional Rent................14 Premises...............................6
Alterations....................21 Prior Lease............................6
Award..........................31 Project................................6
Broker.........................45 Project Costs.........................13
Building........................6 Property Manager......................28
Building Rules.................44 Proposed Transferee...................33
Building Systems...............19 Rent..................................17
Buildings.......................6 Rental Tax............................24
Business Days..................24 Representatives.......................19
Business Hours.................24 Retail Space...........................6
Change in Control..............33 Scheduled Final Rent Commencement Date.7
Claims.........................27 Security Deposit......................17
Commencement Date...............7 Substantially Completed................7
Condemnation...................31 Taxes.................................14
Condemnation Proceeds Deficit..11 Temporary Extension Option............40
Condemnor......................31 Temporary Extension Term..............40
Construction Rider..............7 Tenant.................................6
Controls.......................24 Tenant Delay...........................7
Date of Condemnation...........31 Tenant Improvements...................21
East Office Building............6 Tenant's Operating Costs Share........14
Encumbrance....................41 Tenant's Tax Share....................14
Environmental Losses...........20 Tenant's Taxes........................24
Environmental Requirements.....19 Tenant's Temporary Extension Notice...40
Event of Default...............36 Term...................................7
Expiration Date.................7 Trade Fixtures........................22
Fees...........................43 Transfer..............................33
Final Rent Commencement Date....7 Transferee............................33
First Level Office Space........6 Uninsured Casualty Costs..............11
Handled by Tenant..............19 Visitors..............................20
Handling by Tenant.............19 West Office Building...................6
Hazardous Materials............19
HVAC...........................19
Interest Rate..................38
Landlord........................6
Laws............................9
Lease...........................6
Mortgagee......................42
Multi-Tenant Provisions.........8
Newly Enacted Laws..............9
Operating Costs.................9
Parking Facility................6
Partial Rent Commencement Date..7
Permitted Hazardous Materials..20
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BASIC LEASE INFORMATION
LEASE DATE: For identification purposes only, the date of this Lease is March 10, 2000
LANDLORD: PARKSIDE TOWERS CO-TENANCY, a tenancy in common between:
Gateway Phoenix Associates, L.P., a California limited partnership, and
5990 ▇▇▇▇▇▇▇▇▇ Associates, L. P., a California limited partnership
TENANT: INKTOMI CORPORATION, a Delaware corporation
PROJECT: A project called Parkside Towers, consisting of two mid-rise office
buildings (levels 4 through 8), first floor office space, a three level
parking garage and surface parking, a landscaped park, and other
common areas on the Land (as hereinafter defined) located at the
intersection of East Hillsdale Boulevard and Shell Boulevard in
Foster City, California
PROJECT ADDRESS: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
THE PREMISES: The Premises consists of the East Office Building, the West Office Building and
the First Level Office Space (all as hereinafter defined)
RENTABLE AREA OF
OFFICE SPACE IN
THE WEST OFFICE BUILDING: Approximately 164,876 rentable square feet of office space
RENTABLE AREA OF
OFFICE SPACE IN
THE EAST OFFICE BUILDING: Approximately 216,174 rentable square feet of office space
RENTABLE AREA OF FIRST
LEVEL OFFICE SPACE IN
THE PROJECT: Approximately 17,410 rentable square feet of office space
TOTAL RENTABLE AREA
IN THE PREMISES: Approximately 398,460 rentable square feet of office space in the
East Office Building, the West Office Building and the First Level
Office Space; provided, however, the rentable square feet in the
Premises is subject to reduction (i) for a management office to
manage the Project, as provided in Section 44 of this Lease, and
(ii) due to Landlord not changing the use of the First Level Space,
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as provided in Section 43 of this Lease.
WEST OFFICE BUILDING: APPROXIMATE RENTABLE
--------------------
FLOOR: SQUARE FEET:
----- -----------
4th 39,463 sf
5th 33,943 sf
6th 33,854 sf
7th 29,537 sf
8th 28,079 sf
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Total Square Feet: 164,876 sf
EAST OFFICE BUILDING: APPROXIMATE RENTABLE
--------------------
FLOOR: SQUARE FEET:
----- -----------
4th 60,515 sf
5th 41,708 sf
6th 41,631 sf
7th 36,885 sf
8th 35,435 sf
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Total Square Feet: 216,174 sf
TERM FOR WEST OFFICE
BUILDING: 156 full calendar months following the Lease Rent
Commencement Date (plus any first partial month following the
Final Rent Commencement Date)
TERM FOR EAST OFFICE
BUILDING AND FIRST
LEVEL OFFICE SPACE: 180 full calendar months following the Final Rent Commencement
Date (plus any first partial month following the Final Rent
Commencement Date)
COMMENCEMENT DATE: The date Landlord delivers to Tenant a fully executed copy of this Lease
SCHEDULED FINAL RENT COMMENCEMENT
DATE: November 1, 2001
EXPIRATION DATE FOR WEST OFFICE The last day of the 156th full calendar month following the Final Rent
BUILDING: Commencement Date
EXPIRATION DATE FOR EAST OFFICE
BUILDING AND FIRST LEVEL OFFICE
SPACE: The last day of the 180th full calendar month following the Final Rent
Commencement Date
BASE RENT FOR WEST
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OFFICE BUILDING: Months 01 - 12: $3.35 per rentable square foot per month
Months 13 - 24: $3.45 per rentable square foot per month
Months 25 - 36: $3.55 per rentable square foot per month
Months 37 - 48: $3.66 per rentable square foot per month
Months 49 - 60: $3.77 per rentable square foot per month
Months 61 - 72: $3.88 per rentable square foot per month
Months 73 - 84: $4.00 per rentable square foot per month
Months 85 - 96: $4.12 per rentable square foot per month
Months 97 - 108: $4.24 per rentable square foot per month
Months 109 - 120: $4.37 per rentable square foot per month
Months 121 - 132: $4.50 per rentable square foot per month
Months 133 - 144: $4.64 per rentable square foot per month
Months 145 - 156: $4.78 per rentable square foot per month
BASE RENT FOR EAST OFFICE BUILDING Months 01 - 12: $4.15 per rentable square foot per month
AND FIRST LEVEL OFFICE SPACE: Months 13 - 24: $4.40 per rentable square foot per month
Months 25 - 36: $4.66 per rentable square foot per month
Months 37 - 48: $4.90 per rentable square foot per month
Months 49 - 60: $5.14 per rentable square foot per month
Months 61 - 72: $5.40 per rentable square foot per month
Months 73 - 84: $5.56 per rentable square foot per month
Months 85 - 96: $5.73 per rentable square foot per month
Months 97 - 108: $5.90 per rentable square foot per month
Months 109 - 120: $6.08 per rentable square foot per month
Months 121 - 132: $6.26 per rentable square foot per month
Months 133 - 144: $6.45 per rentable square foot per month
Months 145 - 156: $6.64 per rentable square foot per month
Months 157 - 168: $6.84 per rentable square foot per month
Months 169 - 180: $7.04 per rentable square foot per month
MAINTENANCE, OPERATING COSTS AND
TAXES: This is a "triple net lease" where Tenant is responsible for
"Tenant's Operating Costs Share" of maintenance, repairs, and
operating costs of the Project, and "Tenant's Tax Share" of the
costs and taxes of the Project, all as more specifically set forth in
the applicable provisions of the Lease.
TENANT'S OPERATING COSTS SHARE: 100%
TENANT'S TAX SHARE: 100%
SECURITY DEPOSIT: A total of $18,000,000.00. The total Security
Deposit of $18,000,000.00 may be, at Tenant's option, wholly or partly in
cash and wholly or partly in the form of a Letter of Credit,
provided that Tenant shall deposit with Landlord a cash Security
Deposit of $1,521,709.00 concurrent with Tenant's delivery to
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Landlord of copies of this Lease signed by Tenant.
The Security Deposit shall be held by Landlord subject to, and in
accordance with, the provisions of Sections 4 and 36 of this Lease.
LANDLORD'S ADDRESS FOR PAYMENT OF Parkside Towers Co-Tenancy
RENT: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
BUSINESS HOURS: 8:00 am to 6:00 pm Monday through Friday (except Holidays)
LANDLORD'S ADDRESS
FOR NOTICES: Parkside Towers Co-Tenancy
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Property Management
with a copy to:
Parkside Towers Co-Tenancy
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: General Counsel
TENANT'S ADDRESS
FOR NOTICES: Inktomi Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: Director of Operations
with a copy to:
Inktomi Corporation
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: General Counsel
ACCESS CARD FEE: $20.00 per card in excess of 1,332 access cards
(the first 1,332 access cards being provided at no cost to Tenant)
BROKER(S): BT Commercial Real Estate Services
GUARANTOR(S): (none)
PROPERTY MANAGER: Cornerstone Properties Limited Partnership
dba ▇▇▇▇▇▇ Cornerstone Properties Limited Partnership
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ADDITIONAL PROVISIONS: 36. Cash and/or Letter of Credit
37. Parking
38. Extension Option
39. Right of Offer to Purchase Project
40. Possible Exterior Building Signs
41. Tenant's Generator(s)
42. Antenna License
43. Possible Reduction of Area in First Level Office Space
44. Reduction in Rentable Area for a Management Office
EXHIBITS:
--------
Exhibit A: The Premises
Exhibit B: Construction Rider
Exhibit C: Building Rules
Exhibit D: Additional Provisions
Exhibit E: Form of Letter of Credit
Exhibit F: Janitorial Specifications
Exhibit G: Antenna License
Exhibit H: Index of Base Building Plans
Exhibit I: Broker's Commission
The Basic Lease Information set forth above is part of the Lease. In the
event of any conflict between any provision in the Basic Lease Information and
the Lease, the Lease shall control.
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THIS FIRST AMENDED AND RESTATED LEASE AGREEMENT (the "LEASE") is made as of
the Lease Date set forth in the Basic Lease Information, by and between the
Landlord identified in the Basic Lease Information ("LANDLORD"), and the Tenant
identified in the Basic Lease Information ("TENANT"). This Lease amends and
restates that certain Lease Agreement dated February 22, 2000 (the "PRIOR
LEASE"). Upon complete execution of this Lease by Landlord and Tenant, the Prior
Lease shall be merged into this Lease, and the terms of the Prior Lease shall be
of no further force and effect. Landlord and Tenant hereby agree as follows:
1. PREMISES. Landlord hereby leases to Tenant, and Tenant hereby leases from
Landlord, upon the terms and subject to the conditions of this Lease, and
subject to the covenants, conditions and restrictions recorded in the real
estate records in the county in which the Project is located (including an
easement to be recorded granting the public access to the landscaped park during
certain hours), the office space identified in the Basic Lease Information as
the Premises (the "PREMISES"), in the office buildings located at the address
specified in the Basic Lease Information, which office buildings consist of the
West Office Building (the "WEST OFFICE BUILDING"), the East Office Building (the
"EAST OFFICE BUILDING"), and the First Level Office Space (the "FIRST LEVEL
OFFICE SPACE"), and which three (3) buildings are individually called the
Building (the "BUILDING") and are collectively called the Buildings (the
"BUILDINGS"). The approximate configuration and location of the Premises is
shown on EXHIBIT A. Landlord and Tenant agree that the rentable area of the
Premises, the West Office Building, the East Office Building, the First Level
Office Space, and the Project for all purposes under this Lease shall be based
on measurement by the architect selected by Landlord to design the Building (the
"BUILDING ARCHITECT") based on the final construction drawings for the Building
and a BOMA Standard ANSI/BOMA Z65.1-1996. The Buildings, together with the
parking facilities serving the Buildings (the "PARKING FACILITY"), and the
parcel(s) of land on which the Buildings and the Parking Facility are situated
are collectively herein called the "PROJECT". Therefore, the Project consists of
(a) the Buildings, (b) the Parking Facility serving the Buildings, (c) the Land,
and (d) the common facilities on the Land.
The First Level Office Space has been designed as retail space (and to the
extent not reclassified to use as office space pursuant to the provisions of
Section 43 of this Lease such retail space is herein called the "RETAIL SPACE"),
and contains no "load" to go from usable area to rentable area. In addition, the
Base Building Work (as defined in the Construction Rider attached hereto as
Exhibit B) for the First Level Office Space (i) is not connected to the
Building's rooftop HVAC equipment, but is designed to be serviced by separate
package air-conditioning systems installed as part of Tenant Improvements, (ii)
does not include any restroom facilities, but includes underground water supply
and sanitary sewer lines for connection under Tenant Improvement work.
2. TERM; POSSESSION.
2.1 TERM. The term of this Lease (the "TERM") shall commence on the
Commencement Date as described below and, unless sooner terminated, shall expire
on the Expiration Date set forth in the Basic Lease Information (the "EXPIRATION
DATE") The "COMMENCEMENT DATE" shall be the date Landlord delivers to Tenant a
fully executed copy of this Lease.
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2.2 RENT COMMENCEMENT DATE. The "PARTIAL RENT COMMENCEMENT DATE" shall be,
with respect to any floor in the Premises, the earlier of (a), the date on which
Landlord tenders possession of such floor of the Premises to Tenant, with all of
Landlord's construction obligations, if any, "SUBSTANTIALLY COMPLETED" for such
floor, as provided in the Construction Rider attached as EXHIBIT B (the
"CONSTRUCTION RIDER") or, in the event of any "TENANT DELAY," as defined in the
Construction Rider, the date on which Landlord could have done so had there been
no such Tenant Delay; or (b) the date upon which Tenant, with Landlord's written
permission, actually occupies and conducts business in any portion of such floor
in the Premises (it being intended that the parties contemplate there will be a
different Partial Rent Commencement Date for each floor in the Premises). The
last Partial Rent Commencement Date shall be used as the Final Rent Commencement
Date ("FINAL RENT COMMENCEMENT DATE") of this Lease for the purposes of
determining (x) the dates when Base Rent increases, and (y) the Expiration Date.
The parties anticipate that the Final Rent Commencement Date will occur on or
about the Scheduled Final Rent Commencement Date set forth in the Basic Lease
Information (the "SCHEDULED FINAL RENT COMMENCEMENT DATE"); provided, however,
that Landlord shall not be liable for any claims, damages or liabilities if the
Premises are not ready for occupancy by the Scheduled Final Rent Commencement
Date. When each Partial Rent Commencement Date has been established, Landlord
and Tenant shall at the request of either party confirm such Partial Rent
Commencement Date in writing. When the Final Rent Commencement Date has been
established, Landlord and Tenant shall at the request of either party confirm
the Final Rent Commencement Date and Expiration Date in writing.
After the Partial Rent Commencement Date for each floor in the Premises,
Tenant (and such employees of Tenant who maintain offices primarily in the
Premises, and to whom Landlord has given access keys or cards pursuant to the
provisions of this Lease) shall have access 24 hours per day, 365 days per year
to such floor of the Premises for which the Partial Rent Commencement Date has
occurred, subject to (a) security controls, such as having keys and access cards
to the Building and the Premises, (b) limitations and denial of access due to
emergencies and Landlord's scheduled maintenance of Building Systems, and (c)
limitations and denial of access due to reasons beyond the control of Landlord,
such as actions by governmental authorities.
2.3 SINGLE TENANT/MULTI-TENANT OCCUPANCY OF PROJECT. The Prior Lease
demised to Tenant only that portion of the Premises located in the West Tower
Building. The Prior Lease contemplated that the remainder of the Project would
be leased to tenants other than Tenant. Therefore, the Prior Lease included
various provisions which, whether expressly or by necessary inference, referred
to occupancy of the Project by Tenant and tenants other than Tenant (which
provisions are collectively herein called the "MULTI-TENANT PROVISIONS").
Although this Lease now demises to Tenant the entire rentable area of the
Project, Landlord and Tenant have retained the Multi-Tenant Provisions in this
Lease in contemplation of the possibility that during the Term, Tenant may not
always be the only tenant of the Project for one or more of the following
reasons: (a) if Landlord is unable to secure the necessary government consents
and approval of use of the First Level Space for general office use as
contemplated under this Lease, then in accordance with the provisions of Section
43 of this Lease, the First Level Space may be deleted, in whole or in part,
from the Premises; (b) under the Basic Lease Information and Section 2.1 of this
Lease, the Term as
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to the West Office Building is scheduled to expire before the Term as to the
East Office Building; and (c) under Section 14.7 of this Lease Landlord reserves
the right to terminate this Lease as to a portion of the Premises. There may be
situations other than those which are described above under which Tenant will
not be leasing the entire rentable area in the Project. During such period or
periods during the Term as Tenant is the only tenant in the Project, (i) the
Multi-Tenant Provisions shall be disregarded or interpreted in such fashion as
to recognize Tenant's right to exclusive occupancy of the Project; (ii) Tenant
shall have exclusive use of those common areas of the Project which would
otherwise be available for common use by tenants in a multi-tenant project (such
as lobby areas of a building), subject to public access to thee landscaped park
during certain hours; (iii) Tenant may establish and change the Business Hours
for the Project; (iv) Tenant may restrict access to the Project (other than
access by (x-a) Landlord as contemplated by this Lease, (x-b) the City in
connection with the City's antenna or antennae, (x-c) the Parking Facility, as
required by the City, during certain public events), and (x-d) access by the
public to the landscaped park during certain hours; (v) Tenant shall have the
exclusive right to all interior and exterior tenant identification signs in the
Project (subject to (y-a) any requirements by the City for approval of any such
signs, (y-b) Landlord's right to design and construct any monument sign, (y-c)
Landlord's design and construction of core and shell room identification signs,
and (y-d) the provisions of Section 40 of this Lease concerning approval by
Landlord of Tenant's exterior signs and Tenant's payment of rent for exterior
signs); and (vi) Tenant shall have the exclusive right to use the rooftop of the
Building and the Communications Spaces for communications purposes, subject only
to (z-a) the rights of the City to install one or more antennae in accordance
with the City's condition for approval of the Project, (z-b) Tenant's payment of
the License Fee(s) as contemplated in Exhibit G, (z-c) Landlord's rights to use
the rooftop of the Building and the Communications Spaces pursuant to the
provisions of Exhibit G.
3. RENT.
3.1 BASE RENT. Tenant agrees to pay to Landlord the Base Rent set forth in
the Basic Lease Information, without prior notice or demand, on the first day of
each and every calendar month during the Term commencing on the respective
Partial Rent Commencement Dates for each floor in the Premises, except that Base
Rent for any first partial month with respect to each floor in the Premises
shall be paid on the Partial Rent Commencement Date applicable to such floor.
Base Rent for any partial month following each Partial Rent Commencement Date or
at the end of the Term shall be prorated based on the actual number of days in
the month.
If the Basic Lease Information provides for any change in Base Rent by
reference to years or months (without specifying particular dates), the change
will take effect on the applicable annual or monthly anniversary of the Final
Rent Commencement Date (which won't necessarily be the first day of a calendar
month).
Promptly after the Final Rent Commencement Date, Landlord shall give Tenant
a written schedule of the Base Rent payable by Tenant during the initial Term,
with dates of each increase in Base Rent, for approval by Tenant, which approval
shall not be unreasonably withheld.
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3.2 ADDITIONAL RENT: OPERATING COSTS AND TAXES.
(a) DEFINITIONS.
(1) "OPERATING COSTS" means all costs of managing, operating,
maintaining and repairing the applicable Building, including all costs,
expenditures, fees and charges for: (A) operation, maintenance and repair of
such Building (including maintenance, repair and replacement of glass, the roof
covering or membrane, and landscaping); (B) utilities and services (including
telecommunications facilities and equipment, recycling programs and trash
removal), and associated supplies and materials; (C) compensation (including
employment taxes and fringe benefits) for persons (at or below the level
equivalent to senior property manager or senior engineering manager) who perform
duties in connection with the operation, management, maintenance and repair of
such Building, such compensation to be appropriately allocated for persons who
also perform duties unrelated to such Building; (D) property (including coverage
for earthquake and flood if carried by Landlord), liability, rental income and
other insurance relating to the Building, and expenditures for deductible
amounts paid under such insurance; (E) licenses, permits and inspections; (F)
complying with the requirements of any law, statute, ordinance or governmental
rule or regulation or any orders pursuant thereto (collectively "LAWS") either
(i) not in effect as of the Final Rent Commencement Date or (ii) as any Laws in
effect as of the Final Rent Commencement Date may be amended, changed, added to,
interpreted or re-interpreted by applicable governmental authority or court
decision, or administrative ruling subsequent to the Final Rent Commencement
Date (such [i] and [ii] being herein called "NEWLY ENACTED Laws"; (G)
amortization of (i) capital improvements (a) required to comply with Newly
Enacted Laws, or (b) which are intended to reduce Operating Costs to the extent
such capital improvements reduce Operating Costs, or (c) which improve the
utility, efficiency or capacity of any Building System, or (d) which improve the
general health or safety of tenants' employees in the Building, and (ii) capital
replacements or repairs (excluding in all instances the initial construction of
the Building), with interest on the unamortized balance at the rate paid by
Landlord on funds borrowed to finance such capital improvements, repairs or
replacements (or, if Landlord finances such improvements out of Landlord's funds
without borrowing, the rate that Landlord would have paid to borrow such funds,
as reasonably determined by Landlord), over such useful life as Landlord shall
reasonably determine; (H) an office for the management of the Project, including
expenses of furnishing and equipping such office and the rental value of any
space occupied for such purposes; (I) property management fees; (J) accounting,
legal and other professional services incurred in connection with the operation
of such Building and the calculation of Operating Costs and Taxes; (K) a
reasonable allowance for depreciation on machinery and equipment used to
maintain such Building and on other personal property owned by Landlord in such
Building (including window coverings and carpeting in common areas); (L)
contesting the validity or applicability of any Laws that may affect the
Project; (M) the Building's share of any Project Costs (as hereinafter defined),
including shared or common area maintenance fees and expenses (including costs
and expenses of operating, managing, owning and maintaining the Parking
Facility, and the common areas of the Project and any fitness center or
conference center in the Project, and the off-site costs and expenses for any
transportation for employees in the Project or for traffic control for the use
of the Project); and (N) any other cost, expenditure, fee or charge, whether or
not hereinbefore described, which in accordance with generally accepted property
management practices would be considered an
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expense of managing, operating, maintaining and repairing the Building. The
variable components of Operating Costs for any calendar year during which
average occupancy of a Building is less than one hundred percent (100%) shall be
adjusted to establish the amount of Operating Costs that would have been
incurred if such Building had an average occupancy of one hundred percent (100%)
during the entire calendar year. For the purpose of this paragraph, "variable
components" shall include only those component costs and expenses that are
affected by variations in occupancy levels.
Operating Costs shall not include:
1) costs of special services rendered to individual tenants (including
Tenant) for which a special charge is made;
2) interest and principal payments, bad debt expenses, late fees,
prepayment fees or other charges on loans or indebtedness secured by a
Building, or rental payments under any ground or underlying lease or
leases, or any costs associated with any sale, financing or
refinancing of the Project;
3) costs of improvements for Tenant or other tenants of a Building;
4) costs of services or other benefits of a type which are not available
to Tenant but which are available to other tenants or occupants, and
costs for which Landlord is reimbursed by other tenants of such
Building other than through payment of tenants' shares of Operating
Costs and Taxes;
5) depreciation or amortization, other than as specifically enumerated in
the definition of Operating Costs above;
6) costs, fines or penalties incurred due to Landlord's violation of any
Law;
7) repairs or other work occasioned by fire, windstorm, earthquake, or
other casualty or hazard to the extent Landlord receives insurance
proceeds, subject to the following limitations: (x) in the year in
which Landlord pays the costs of any uninsured portion of the costs of
repairs or other work occasioned by fire, windstorm, earthquake or
other casualty (the "UNINSURED CASUALTY COSTS"), Tenant's Operating
Costs Share (as hereinafter defined) of such Uninsured Casualty Costs
shall be limited to One Dollar ($1.00) per rentable square foot in the
Premises, and (y) in subsequent calendar years, Tenant's Operating
Costs Share of the Uninsured Casualty Costs in excess of One Dollar
($1.00) per rentable square foot in the Premises under (x) shall be
amortized straight-line, with interest at ten percent (10%) per annum,
over a period of ten (10) years commencing in the calendar year
following the year in which Landlord pays the Uninsured Casualty
Costs, provided that Tenant's Operating Costs Share of the Uninsured
Casualty Costs shall not exceed One Dollar ($1.00) per rentable square
foot in the Premises in any calendar year; provided further, if
Landlord pays the Uninsured Casualty Costs in one calendar year and
receives insurance proceeds for such fire, windstorm, earthquake
10
or other casualty or hazard in a subsequent calendar year, Tenant
shall receive a credit against any Uninsured Casualty Costs to the
extent Landlord receives insurance proceeds related to such specific
Uninsured Casualty Costs;
8) repairs or rebuilding necessitated by condemnation to the extent
Landlord receives proceeds from the applicable condemning authority,
subject to the following limitations: (x) in the year in which
Landlord pays the costs of any portion of the costs of repairs or
other work resulting from condemnation for which Landlord does not
receive proceeds from the condemning authority (the "CONDEMNATION
PROCEEDS DEFICIT"), Tenant's Operating Costs Share (as hereinafter
defined) of such Condemnation Proceeds Deficit shall be limited to One
Dollar ($1.00) per rentable square foot in the Premises, and (y) in
subsequent calendar years, Tenant's Operating Costs Share of the
Condemnation Proceeds Deficit in excess of One Dollar ($1.00) per
rentable square foot in the Premises under (x) shall be amortized over
a period of ten (10) years commencing in the calendar year following
the year in which Landlord pays the Condemnation Proceeds Deficit,
provided that Tenant's Operating Costs Share of the Condemnation
Proceeds Deficit shall not exceed One Dollar ($1.00) per rentable
square foot in the Premises in any calendar year, provided further, if
Landlord pays the Condemnation Proceeds Deficit in one calendar year
and receives condemnation proceeds for such condemnation in a
subsequent calendar year, Tenant shall receive a credit against any
Condemnation Proceeds Deficit to the extent Landlord receives
condemnation proceeds related to such specific Condemnation Proceeds
Deficit;
9) marketing costs, leasing commissions, finders' fees, attorney's fees,
costs, and disbursements and other expenses incurred in connection
with leasing space in the Project or disputes with tenants, other
occupants, or prospective tenants, or in enforcing leases, or legal
fees incurred in connection with negotiating this Lease or any other
lease;
10) expenses incurred in tenant buildout or renovations or otherwise
improving or decorating, painting or redecorating space for tenants or
other occupants of space, including permits, license, design, space
planning, and inspection costs associated therewith;
11) Landlord's costs of electricity and other services sold or provided to
tenants in the applicable Building and for which Landlord is entitled
to be reimbursed, whether or not collected, by such tenants as a
separate additional charge or rental over and above the basic rent or
escalation payment payable under the Lease with such tenant;
12) expenses in connection with non-Building standard services or benefits
of a type which are not provided to Tenant but which are provided to
other tenants or occupants of such Building, or for which Tenant is
charged directly but which are provided to another tenant or occupant
of the applicable Building without direct charge;
11
13) costs incurred due to violation by Landlord or any tenant or other
occupant of the terms and conditions of any lease or other rental
arrangement covering space in the Project;
14) costs directly resulting from the negligence or willful misconduct of
Landlord, its agents or employees;
15) costs to correct defects in original construction;
16) costs of operating commercial concessions or facilities (such as
health club or similar activities) to the extent reimbursed by users;
17) amounts paid to subsidiaries or other affiliates of Landlord (i.e.,
persons or companies controlled by, under common control with, or
which control, Landlord, directly or indirectly) for services on or to
the Project (or any portion thereof), to the extent only that the
costs of such services exceed competitive costs of such services were
they not so rendered by a subsidiary or other affiliate of Landlord;
18) all items and services for which Tenant pays third parties directly;
19) charitable or political contributions;
20) costs associated with the operation of the business of the partnership
or entity which constitutes Landlord, or the operation of any parent,
subsidiary or affiliate of Landlord, as the same are distinguished
from the costs of operation of the Buildings or the Project, including
without limitation partnership accounting and legal matters, costs of
defending any lawsuits with any mortgagee, and costs of selling,
syndicating, financing, mortgaging or hypothecating any of Landlord's
interest in the Project;
21) costs of signs in or on the Project (other than the Building directory
in the lobby of a Building) identifying other tenants of such Building
or their employees, divisions, subsidiaries, subtenants or assignees;
22) any costs for which Landlord has been reimbursed or receives a refund;
23) any costs for which Landlord has received a credit or discount, but
only to the extent of such credit or refund; and,
24) any costs of cleanup, removal and/or remediation of any Hazardous
Materials (as such term is defined in Section 5.2 of this Lease) in,
on or under the Project required to comply with applicable
Environmental Laws and which are the result of (A) the introduction by
Landlord or any tenant (other than Tenant, whose responsibility for
costs shall be established with the provisions of Section 5.2 of this
Lease) in effect at the time of such introduction, or (B) as a result
of the presence of Hazardous Materials in, on or under the Project as
of the Commencement Date, but only to the extent such Hazardous
Materials are in
12
violation of Environmental Laws in effect, and interpreted, as of the
Commencement Date.
Operating Costs shall be computed in accordance with the following general
principles:
(i) Landlord agrees that Landlord will not collect or be entitled to
collect Operating Costs from all tenants in the Project in an amount which
exceeds one hundred percent (100%) of the Operating Costs (including the
management fee contained above, and any interest, whether actual or imputed, as
provided above in this Section 3.2) actually incurred or paid by Landlord in the
operation of the Project, and
(ii) Landlord shall make no profit from the collection of Operating Costs
(other than the management fee) from tenants in the Project.
The parties acknowledge that each Building is part of the multi-building
Project, consisting of the East Office Building, the West Office Building, the
First Level Office Space and the Parking Facility. If at any time Tenant does
not lease the entire rentable area in the Project, then the costs and expenses
(the "PROJECT COSTS") incurred in connection with the Project (such as, for
example, costs and expenses attributable to the Parking Facility, the Land, the
common grounds and any park, as distinguished from the costs and expenses which
are attributable solely to a Building) shall be allocated by Landlord on an
equitable basis between the East Office Building, the West Office Building and
the First Level Office Space. Project Costs shall not include those costs and
expenses which are attributable solely to the West Office Building, the East
Office Building and the First Level Office Space. Accordingly, Project Costs
shall be calculated in accordance with this Subsection 3.2 (a) (i), and shall be
allocated by Landlord on an equitable basis between the East Office Building,
the West Office Building and the First Level Office Space.
The Operating Costs payable by Tenant shall include (x) all Operating Costs
which are attributable solely to all Buildings included in the Premises (such
as, for example, maintenance and repair, utilities, and janitorial for each such
Building) and (y) that portion of the Project Costs allocated to each such
Building as provided above. If Tenant is not leasing a Building, the Operating
Costs payable by Tenant shall not include (x) those Operating Costs which are
attributable solely to such Building (such as, for example, maintenance and
repair, utilities, and janitorial for the Building which Tenant is not leasing)
and (y) that portion of the Project Costs allocated to the Building which Tenant
is not leasing, as provided above.
(2) "TAXES" means: all real property taxes and general,
special or district assessments or other governmental impositions, of whatever
kind, nature or origin, imposed on or by reason of the ownership or use of the
Project; governmental charges, fees or assessments for transit or traffic
mitigation (including area-wide traffic improvement assessments and
transportation system management fees), housing, police, fire or other
governmental service or purported benefits to the Project; personal property
taxes assessed on the personal property of Landlord used in the operation of the
Project; service payments in lieu of taxes and taxes and assessments of every
kind and nature whatsoever levied or assessed in addition to, in lieu of or in
substitution for existing or additional real or personal property taxes on the
Project or the personal property described above; any increases in the foregoing
caused by changes in assessed valuation,
13
tax rate or other factors or circumstances; and the reasonable cost of
contesting by appropriate proceedings the amount or validity of any taxes,
assessments or charges described above. Notwithstanding the foregoing, Taxes
shall not include any exaction which is a part of the entitlements. To the
extent payable by Tenant or other tenants as "Tenant's Taxes" (as defined in
Section 8 - TENANT'S TAXES), "Tenant's Taxes" shall be excluded from Taxes.
(3) "TENANT'S OPERATING COSTS SHARE" means the Rentable Area
of the Premises divided by the total Rentable Area of the Buildings which are
included in the Premises, as set forth in the Basic Lease Information; provided
however, in calculating Tenant's Operating Costs Share, the total Rentable Area
of any Retail Space in the Project shall not be included in the Rentable Area of
the Buildings. If the Rentable Area of the Buildings (exclusive of the Rentable
Area of any Retail Space in the Project) is changed or the Rentable Area of the
Premises is changed by Tenant's leasing of more or less space hereunder or for
any other reason, Tenant's Operating Costs Share shall be adjusted accordingly.
"TENANT'S TAX SHARE" means the Rentable Area of the Premises divided by the
total Rentable Area of the Project, as set forth in the Basic Lease Information.
If the Rentable Area of the Project is changed or the Rentable Area of the
Premises is changed by Tenant's leasing of additional space hereunder or for any
other reason, Tenant's Tax Share shall be adjusted accordingly.
(b) ADDITIONAL RENT.
(1) Tenant shall pay Landlord as "ADDITIONAL RENT" for each
calendar year or portion thereof during the Term, the sum of (x) Tenant's
Operating Costs Share of the amount of Operating Costs, and (y) the Tenant's Tax
Share of the amount of Taxes for such period.
(2) Prior to the Scheduled Final Rent Commencement Date
Landlord shall notify Tenant of Landlord's estimate of Operating Costs, Taxes
and Tenant's Additional Rent for the first calendar year in which the Scheduled
Final Rent Commencement Date; and prior to each calendar year thereafter,
Landlord shall notify Tenant of Landlord's estimate of Operating Costs, Taxes
and Tenant's Additional Rent for such following calendar year. Commencing on
each Partial Rent Commencement Date, Tenant shall pay to Landlord one-twelfth
(1/12th) of the estimated annual Additional Rent with respect to each such floor
of the Premises (it being agreed that Additional Rent payable by Tenant shall
commence independently following each Partial Rent Commencement Date), and
continuing through the end of the first partial calendar year. For calendar
years following the first partial year, commencing on the first day of January
of each calendar year and continuing on the first day of every month thereafter
in such year, Tenant shall pay to Landlord one-twelfth (1/12th) of the estimated
annual Additional Rent. If Landlord thereafter estimates that Operating Costs or
Taxes for such year will vary from Landlord's prior estimate, Landlord may, by
notice to Tenant, revise the estimate for such year (and Additional Rent shall
thereafter be payable based on the revised estimate).
(3) As soon as reasonably practicable after the end of each
calendar year, Landlord shall furnish Tenant a statement with respect to such
year, showing Operating Costs,
14
Taxes and Additional Rent for the year, and the
total payments made by Tenant with respect thereto. Unless Tenant raises any
objections to Landlord's statement within one hundred eighty (180) days after
receipt of the same, such statement shall conclusively be deemed correct and
Tenant shall have no right thereafter to dispute such statement or any item
therein or the computation of Additional Rent based thereon. If Tenant does
object to such statement, then Landlord shall provide Tenant with reasonable
verification of the figures shown on the statement and the parties shall
negotiate in good faith to resolve any disputes. Any objection of Tenant to
Landlord's statement and resolution of any dispute shall not postpone the time
for payment of any amounts due Tenant or Landlord based on Landlord's statement,
nor shall any failure of Landlord to deliver Landlord's statement in a timely
manner relieve Tenant of Tenant's obligation to pay any amounts due Landlord
based on Landlord's statement.
(4) If Tenant's Additional Rent as finally established for any
calendar year exceeds the total payments made by Tenant on account thereof,
Tenant shall pay Landlord the deficiency within thirty (30) days of Tenant's
receipt of Landlord's statement. If the total payments made by Tenant on account
thereof exceed Tenant's Additional Rent as finally established for such year,
Tenant's excess payment shall be credited toward the rent next due from Tenant
under this Lease. For any partial calendar year at the beginning or end of the
Term, Additional Rent shall be prorated on the basis of a 365-day year by
computing Tenant's Operating Costs Share of the Operating Costs and Tenant's Tax
Share of the Taxes for the entire year and then prorating such amount for the
number of days during such year included in the Term. Notwithstanding the
termination of this Lease, Landlord shall pay to Tenant or Tenant shall pay to
Landlord, as the case may be, within thirty (30) days after Tenant's receipt of
Landlord's final statement for the calendar year in which this Lease terminates,
the difference between Tenant's Additional Rent for that year, as finally
established by Landlord, and the total amount previously paid by Tenant on
account thereof.
If for any reason Taxes for any year during the Term are reduced, refunded or
otherwise changed, Tenant's Additional Rent shall be adjusted accordingly. If
Taxes are temporarily reduced as a result of space in the Project being leased
to a tenant that is entitled to an exemption from property taxes or other taxes,
then for purposes of calculating Additional Rent for each year in which Taxes
are reduced by any such exemption, Taxes for such year shall be calculated on
the basis of the amount the Taxes for the year would have been in the absence of
the exemption. The obligations of Landlord to refund any overpayment of
Additional Rent and of Tenant to pay any Additional Rent not previously paid
shall survive the expiration of the Term.
(c) TENANT'S AUDIT RIGHTS.
Tenant, at its expense, shall have the right upon fifteen (15)
days prior written notice to Landlord ( "Tenant's Audit Notice") to be given
only within one hundred eighty (180) days after Tenant receives the annual
statement of Additional Rent to audit Landlord's books and records relating to
such statement for such immediately preceding calendar year, subject to the
following terms and conditions: (a) No audit shall be conducted at any time that
Tenant is in monetary or material non-monetary default under this Lease (after
expiration of any applicable notice and cure period); (b) any audit shall be
conducted only by independent certified public
15
accountants practicing for an accounting firm of national prominence, employed
by Tenant on an hourly or fixed fee basis, and not on a contingency fee basis;
and (c) Tenant shall not audit Landlord's books and records more than one (1)
time for any calendar year. Tenant acknowledges that Tenant's right to inspect
Landlord's books and records with respect to Additional Rent for the preceding
calendar year is for the exclusive purpose of determining whether Landlord has
complied with the terms of the Lease with respect to Additional Rent. Tenant
shall have ninety (90) days after Tenant's Audit Notice to complete Tenant's
inspection of Landlord's books and records concerning Additional Rent at
Landlord's accounting office. During its inspection Tenant agrees to request, in
writing, all pertinent documents relating to the inspection. If in Landlord's
possession or control, Landlord will provide such documents to Tenant within ten
(10) days from Landlord's receipt of the request and Tenant shall not remove
such records from Landlord's accounting office, but Tenant shall have the right
to make copies of the relevant documents at Tenant's expense. Tenant shall
deliver to Landlord a copy of the results of such audit within fifteen (15) days
of its receipt by Tenant. The nature and content of any audit are strictly
confidential. Tenant, on behalf of its accountant, employees and agents shall
not disclose the information obtained from the audit to any other person or
entity, including, without limitation, any other tenant in the Building, or any
agent, employee, officer, shareholder, partner, accountant or attorney of such
tenant in the Building; provided, however, Tenant shall have the right to
disclose the results of any such audit in actions to enforce the provisions of
this Lease. A breach of this confidentiality agreement shall constitute an Event
of Default under this Lease. Any such Event of Default for breach of this
confidentiality agreement shall not give rise to a right of termination of the
Lease, but Tenant agrees to pay to Landlord on demand, as liquidated damages
therefor and not as a penalty, for each such Event of Default arising from the
breach of this confidentiality agreement the sum of Two Hundred Fifty Thousand
Dollars ($250,000.00). Landlord and Tenant agree that any breach of this
confidentiality agreement will cause great harm to Landlord, that it is
difficult to specify exactly the amount of damages resulting therefrom and that
the liquidated damages provided for above is a reasonable amount. No assignee
shall conduct an audit for any period during which such assignee was not in
possession of the Premises. If Tenant's audit shows that Operating Costs are
overstated by more than five percent (5%), then Landlord agrees to pay the
reasonable costs of such audit, not to exceed Five Thousand and 00/100 Dollars
($5,000.00) per audit. Tenant shall not be entitled under this provision to
reimbursement from Landlord for audit expenses in excess of $5,000 without
giving Landlord prior notice that the expenses are expected to exceed $5,000.
3.3 PAYMENT OF RENT. All amounts payable or reimbursable by Tenant under
this Lease, including late charges and interest (collectively, "RENT"), shall
constitute rent and shall be payable and recoverable as rent in the manner
provided in this Lease. All sums payable to Landlord on demand under the terms
of this Lease shall be payable within thirty (30) days after notice from
Landlord of the amounts due. All rent shall be paid without offset, recoupment
or deduction in lawful money of the United States of America to Landlord at
Landlord's Address for Payment of Rent as set forth in the Basic Lease
Information, or to such other person or at such other place as Landlord may from
time to time designate.
4. SECURITY DEPOSIT. On execution of this Lease, Tenant shall deposit with
Landlord the amount specified in the Basic Lease Information as the cash portion
of the Security Deposit
16
and Tenant shall deposit the letter of credit identified in Section 36 below, at
the time specified in Section 36 below, which cash and letter of credit is
deposited as the Security Deposit (collectively, the "SECURITY DEPOSIT", which
term shall include amounts drawn on the letter of credit), as security for the
performance of Tenant's obligations under this Lease. Landlord may (but shall
have no obligation to) use the Security Deposit or any portion thereof to cure
any breach or default by Tenant under this Lease, to fulfill any of Tenant's
obligations under the Lease, or to compensate Landlord for any damage it incurs
as a result of Tenant's failure to perform any of Tenant's obligations
hereunder. In such event, Tenant shall pay to Landlord on demand an amount
sufficient to replenish the Security Deposit to the full amount of the cash
specified in the Basic Lease Information and the applicable Face Amount (defined
in Section 36 below) of the letter of credit. If at the expiration or
termination of this Lease, Tenant is not in default, has otherwise fully
performed all of Tenant's obligations under this Lease, and there are no
outstanding Claims (defined in Section 10.1 below, and including all existing
and potential Claims) for which Tenant is responsible, Landlord shall return to
Tenant the Security Deposit or the balance thereof then held by Landlord and not
applied as provided above. Tenant acknowledges that Landlord has agreed to
accept a letter of credit in lieu of an additional cash deposit as an
accommodation to Tenant and Tenant agrees that the letter of credit and all
amounts drawn thereunder shall be treated for all purposes under this Lease as
if a cash deposit had been tendered to Landlord upon the execution of this
Lease.
Landlord shall deposit the cash portion of the Security Deposit in a separate,
interest bearing account (the "Account") in Landlord's own name at Bank of
America, or such other national bank as Landlord reasonably selects (the
"Bank"). The type of Account may be selected by Tenant, including a money market
account or a time account (including one or more certificates of deposit);
provided, however, Landlord shall not be liable for any penalty or fee for early
withdrawal from the Account due to Landlord withdrawing funds from any time
account or certificate of deposit to be used or applied by Landlord pursuant to
the provisions of this Section 4. Tenant shall not pledge, hypothecate or place
any lien of any form on the Security Deposit, or use the Security Deposit as
collateral or security for any purpose other than as security for the
performance of Tenant's obligations under this Lease in accordance with the
provisions of this Section 4; and Tenant shall have no rights to the money in
the Account, except for (i) the return rights specified herein and (ii) the
right to receive interest on the Account, as specified herein. Landlord agrees
to place on the signature card for the Account the following language: "[name of
Landlord] is holding the funds in the Account in accordance with a lease dated
[date of Lease] between [name of Landlord] and Inktomi Corporation. The rights
of [name of Landlord] and Inktomi Corporation are subject to the terms of such
lease." Within ten (10) Business Days after Landlord signs the signature card
(or any replacement signature card) on the Account Landlord agrees to provide
Tenant a copy of the signature card for the Account. Landlord agrees to request
the Bank to pay interest on such Account directly to Tenant on a quarterly
basis, and to report to the appropriate taxing authorities that such interest
has been paid to Tenant; provided, however, if despite Landlord's request, the
Bank cannot or will not pay the interest directly to Tenant, then (x) the Bank
shall pay interest on the Account directly to Landlord, in which case, within
ten (10) Business Days after Landlord receives any such payment of interest,
Landlord shall pay to Tenant the interest Landlord receives from the Bank on the
Account, and (y) Landlord shall have the right to report to the appropriate
17
state and federal taxing authorities that such income is the income of Tenant.
Tenant represents to Landlord that Tenant's Federal Taxpayer Identification
Number is 943238130.
5. USE AND COMPLIANCE WITH LAWS.
5.1 USE. The Premises shall be used and occupied for general business
office purposes and for no other use or purpose. Tenant shall comply with all
present and future Laws relating to Tenant's use or occupancy of the Premises
(and make any repairs, alterations or improvements as required to comply with
all such Laws), and shall observe the "Building Rules" (as defined in Section 27
- RULES AND REGULATIONS) except that repairs or alterations required to comply
with Laws either (x) caused by Tenant's particular use or activities or by any
Alterations made by Tenant (or which Landlord makes on behalf of Tenant because
of such particular use, activity or Alteration), shall be made by Landlord at
Tenant's cost and expense, to be paid by Tenant to Landlord upon demand
following completion of any such repairs or alterations, or (y) generally
applicable to the condition of the Premises for use as office space, and not
required or caused by Tenant's particular use or activities or by any
Alterations made by Tenant (or which Landlord makes on behalf of Tenant because
of such particular use, activity or Alteration), shall be made by Landlord (and
the cost thereof shall be included in or excluded from Operating Costs as
provided in Section 3.2(a)(3) above). Tenant shall not do, bring, keep or sell
anything in or about the Premises that is prohibited by, or that will cause a
cancellation of or an increase in the existing premium for, any insurance policy
covering the Project or any part thereof. Tenant shall not permit the Premises
to be occupied or used in any manner that will constitute waste or a nuisance,
or disturb the quiet enjoyment of or otherwise annoy other tenants in the
Project. Without limiting the foregoing, the Premises shall not be used for
educational activities (except for education of Tenant's employees and
occasional training, seminars and similar events for Tenant's customers, subject
to the provisions of this Lease, including, without limitation, Sections 9.2 and
37), practice of medicine or any of the healing arts, providing social services,
for any governmental use (including embassy or consulate use), or for personnel
agency, customer service office, studios for radio, television or other media,
travel agency or reservation center operations or uses. Tenant shall not,
without the prior consent of Landlord, (i) bring into the Project or the
Premises anything that may cause substantial noise, odor or vibration, overload
the floors in the Premises or any Building or any of the heating, ventilating
and air-conditioning ("HVAC"), mechanical, elevator, plumbing, electrical, fire
protection, life safety, security or other systems in the Building and the
Project ("BUILDING SYSTEMS"), or jeopardize the structural integrity of such
Building or any part thereof; (ii) connect to the utility systems of such
Building any apparatus, machinery or other equipment other than typical office
equipment; or (iii) connect to any electrical circuit in the Premises any
equipment or other load with aggregate electrical power requirements in excess
of 80% of the rated capacity of the circuit.
5.2 HAZARDOUS MATERIALS.
(a) DEFINITIONS.
(1) "HAZARDOUS MATERIALS" shall mean any substance: (A) that
now or in the future is regulated or governed by, requires investigation or
remediation under, or is defined as a hazardous waste, hazardous substance,
pollutant or contaminant under any governmental
18
statute, code, ordinance, regulation, rule or order, and any amendment thereto,
including the Comprehensive Environmental Response Compensation and Liability
Act, 42 U.S.C. ss.9601 ET SEQ., and the Resource Conservation and Recovery Act,
42 U.S.C. ss.6901 ET SEQ., or (B) that is toxic, explosive, corrosive,
flammable, radioactive, carcinogenic, dangerous or otherwise hazardous,
including gasoline, diesel fuel, petroleum hydrocarbons, polychlorinated
biphenyls (PCBs), asbestos, radon and urea formaldehyde foam insulation.
(2) "ENVIRONMENTAL REQUIREMENTS" shall mean all present and
future Laws, orders, permits, licenses, approvals, authorizations and other
requirements of any kind applicable to Hazardous Materials.
(3) "HANDLED BY TENANT" and "HANDLING BY TENANT" shall mean
and refer to any installation, handling, generation, storage, use, disposal,
discharge, release, abatement, removal, transportation, or any other activity of
any type by Tenant or its agents, employees, contractors, licensees, assignees,
sublessees, transferees or representatives (collectively, "REPRESENTATIVES") or
its guests, customers, invitees, or authorized visitors (collectively,
"VISITORS"), at or about the Premises in connection with or involving Hazardous
Materials.
(4) "ENVIRONMENTAL LOSSES" shall mean all costs and expenses
of any kind, damages, including foreseeable and unforeseeable consequential
damages, fines and penalties incurred in connection with any violation of and
compliance with Environmental Requirements and all losses of any kind
attributable to the diminution of value, loss of use or adverse effects on
marketability or use of any portion of the Premises or Project.
(b) TENANT'S COVENANTS. No Hazardous Materials shall be Handled
by Tenant at or about the Premises or Project without Landlord's prior written
consent, which consent may be granted, denied, or conditioned upon compliance
with Landlord's requirements, all in Landlord's absolute discretion.
Notwithstanding the foregoing, normal quantities and use of those Hazardous
Materials customarily used in the conduct of general office activities, such as
copier fluids and cleaning supplies ("PERMITTED HAZARDOUS MATERIALS"), may be
used and stored at the Premises without Landlord's prior written consent,
provided that Tenant's activities at or about the Premises and Project and the
Handling by Tenant of all Hazardous Materials shall comply at all times with all
Environmental Requirements. At the expiration or termination of the Lease,
Tenant shall promptly remove from the Premises and Project all Hazardous
Materials Handled by Tenant at the Premises or the Project. Tenant shall keep
Landlord fully and promptly informed of all Handling by Tenant of Hazardous
Materials other than Permitted Hazardous Materials. Tenant shall be responsible
and liable for the compliance with all of the provisions of this Section by all
of Tenant's Representatives and Visitors, and all of Tenant's obligations under
this Section (including its indemnification obligations under paragraph (e)
below) shall survive the expiration or termination of this Lease.
(c) COMPLIANCE. Tenant shall at Tenant's expense promptly take
all actions required by any governmental agency or entity in connection with or
as a result of the Handling by Tenant of Hazardous Materials at or about the
Premises or Project, including inspection and testing, performing all cleanup,
removal and remediation work required with respect to those Hazardous
19
Materials, complying with all closure requirements and post-closure monitoring,
and filing all required reports or plans. All of the foregoing work and all
Handling by Tenant of all Hazardous Materials shall be performed in a good, safe
and workmanlike manner by consultants qualified and licensed to undertake such
work and in a manner that will not interfere with any other tenant's quiet
enjoyment of the Project or Landlord's use, operation, leasing and sale of the
Project. Tenant shall deliver to Landlord prior to delivery to any governmental
agency, or promptly after receipt from any such agency, copies of all permits,
manifests, closure or remedial action plans, notices, and all other documents
relating to the Handling by Tenant of Hazardous Materials at or about the
Premises or Project. If any lien attaches to the Premises or the Project in
connection with or as a result of the Handling by Tenant of Hazardous Materials,
and Tenant does not cause the same to be released, by payment, bonding or
otherwise, within ten (10) days after the attachment thereof, Landlord shall
have the right but not the obligation to cause the same to be released and any
sums expended by Landlord (plus Landlord's administrative costs) in connection
therewith shall be payable by Tenant on demand.
(d) LANDLORD'S RIGHTS. Upon reasonable oral or written notice to
Tenant (and without notice in emergencies) Landlord shall have the right, but
not the obligation, to enter the Premises at any reasonable time (i) to confirm
Tenant's compliance with the provisions of this Section 5.2, and (ii) to perform
Tenant's obligations under this Section if Tenant has failed to do so after
reasonable notice to Tenant. Landlord shall also have the right to engage
qualified Hazardous Materials consultants to inspect the Premises and review the
Handling by Tenant of Hazardous Materials, including review of all permits,
reports, plans, and other documents regarding same. Tenant shall pay to Landlord
on demand the costs of Landlord's consultants' fees and all costs incurred by
Landlord in performing Tenant's obligations under this Section. Landlord shall
use reasonable efforts to minimize any interference with Tenant's business
caused by Landlord's entry into the Premises, but Landlord shall not be
responsible for any interference caused thereby.
(e) TENANT'S INDEMNIFICATION. Tenant agrees to indemnify, defend,
protect and hold harmless Landlord and its partners or members and its or their
partners, members, directors, officers, shareholders, employees and agents from
all Environmental Losses and all other claims, actions, losses, damages,
liabilities, costs and expenses of every kind, including reasonable attorneys',
experts' and consultants' fees and costs, incurred at any time and arising from
or in connection with the Handling by Tenant of Hazardous Materials at or about
the Project or Tenant's failure to comply in full with all Environmental
Requirements with respect to the Premises.
6. TENANT IMPROVEMENTS & ALTERATIONS.
6.1 Landlord and Tenant shall perform their respective obligations with
respect to design and construction of any improvements to be constructed and
installed in the Premises (the "TENANT IMPROVEMENTS"), as provided in the
Construction Rider. Except for any Tenant Improvements to be constructed by
Tenant as provided in the Construction Rider, Tenant shall not make any
alterations, improvements or changes to the Premises, including installation of
any security system or telephone or data communication wiring, ("ALTERATIONS"),
without Landlord's prior written consent, which consent shall not be
unreasonably withheld. Notwithstanding any other provision contained herein,
Tenant shall not be required to obtain Landlord's prior consent
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for minor, non-structural Alterations that (a) do not affect any of the Building
Systems, (b) are not visible from the exterior of the Premises, and (c) cost
less than Fifty Thousand Dollars ($50,000) per floor with respect to any given
floor which Tenant is then leasing in a Building, so long as Tenant gives
Landlord notice of the proposed Alterations at least ten (10) days prior to
commencing the Alterations and complies with all of the following provisions
(except that Tenant shall not be required to obtain Landlord's approval of any
plans or specifications therefor). In addition, Tenant shall have the right to
add or change carpets and paint in the Premises without Landlord's consent. Any
such Alterations shall be completed by Tenant at Tenant's sole cost and expense:
(i) with due diligence, in a good and workmanlike manner, using new materials;
(ii) in compliance with plans and specifications reasonably approved by
Landlord; (iii) in compliance with the construction rules and regulations
promulgated by Landlord from time to time; (iv) in accordance with all
applicable Laws (including all work, whether structural or non-structural,
inside or outside the Premises, required to comply fully with all applicable
Laws and necessitated by Tenant's work); and (v) subject to all conditions which
Landlord may in Landlord's discretion impose. Such conditions may include
requirements for Tenant to: (i) provide payment or performance bonds or
additional insurance (from Tenant or Tenant's contractors, subcontractors or
design professionals); (ii) use contractors or subcontractors designated by
Landlord; and (iii) remove all or part of the Alterations prior to or upon
expiration or termination of the Term, as designated by Landlord. If any work
outside the Premises, or any work on or adjustment to any of the Building
Systems, is required in connection with or as a result of Tenant's work, such
work shall be performed at Tenant's expense by contractors designated by
Landlord. Landlord's right to review and approve (or withhold approval of)
Tenant's plans, drawings, specifications, contractor(s) and other aspects of
construction work proposed by Tenant is intended solely to protect Landlord, the
Project and Landlord's interests. No approval or consent by Landlord shall be
deemed or construed to be a representation or warranty by Landlord as to the
adequacy, sufficiency, fitness or suitability thereof or compliance thereof with
applicable Laws or other requirements. Except as otherwise provided in
Landlord's consent, all Alterations shall upon installation become part of the
realty and be the property of Landlord.
6.2 Before making any Alterations, Tenant shall submit to Landlord for
Landlord's reasonable prior approval reasonably detailed final plans and
specifications prepared by a licensed architect or engineer, a copy of the
construction contract, including the name of the contractor and all
subcontractors proposed by Tenant to make the Alterations and a copy of the
contractor's license. Tenant shall reimburse Landlord upon demand for any
expenses reasonably incurred by Landlord in connection with any Alterations made
by Tenant, including reasonable fees charged by Landlord's contractors or
consultants to review plans and specifications prepared by Tenant and to update
the existing as-built plans and specifications of the applicable Building to
reflect the Alterations. Tenant shall obtain all applicable permits,
authorizations and governmental approvals and deliver copies of the same to
Landlord before commencement of any Alterations.
6.3 Tenant shall keep the Premises and the Project free and clear of all
liens arising out of any work performed, materials furnished or obligations
incurred by Tenant. If any such lien attaches to the Premises or the Project,
and Tenant does not cause the same to be released by payment, bonding or
otherwise within ten (10) days after the attachment thereof, Landlord shall have
the right but not the obligation to cause the same to be released, and any sums
expended by
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Landlord (plus Landlord's administrative costs) in connection therewith shall be
payable by Tenant on demand with interest thereon from the date of expenditure
by Landlord at the Interest Rate (as defined in Section 16.2 - INTEREST). Tenant
shall give Landlord at least ten (10) days' notice prior to the commencement of
any Alterations and cooperate with Landlord in posting and maintaining notices
of non-responsibility in connection therewith.
6.4 Subject to the provisions of Section 5 - USE AND COMPLIANCE WITH LAWS
and the foregoing provisions of this Section, Tenant may install and maintain
furnishings, equipment, movable partitions, business equipment and other trade
fixtures ("TRADE FIXTURES") in the Premises, provided that the Trade Fixtures do
not become an integral part of the Premises or the Applicable Building. Tenant
shall promptly repair any damage to the Premises or the Project caused by any
installation or removal of such Trade Fixtures.
7. MAINTENANCE AND REPAIRS.
7.1 By taking possession of the Premises Tenant agrees that the Premises
are then in a good and tenantable condition, subject to (a) any latent defects
of which Tenant notifies Landlord in writing within one (1) year after the Final
Rent Commencement Date, and (b) completion of any "punchlist" items pursuant to
the provisions of Exhibit B attached hereto. During the Term, Tenant at Tenant's
expense but under the direction of Landlord, shall repair and maintain the
Premises, including the interior walls, floor coverings, ceiling (ceiling tiles
and grid), Tenant Improvements, Alterations, fire extinguishers, outlets and
fixtures, and any appliances (including dishwashers, hot water heaters and
garbage disposers) in the Premises, in a reasonably good condition, and keep the
Premises in a clean, safe and orderly condition.
7.2 Landlord shall maintain or cause to be maintained in reasonably good
order, condition and repair, the structural portions of the roof, foundations,
floors and exterior walls of each Building contained in the Premises , the
Building Systems, the Parking Facility, the public and common areas of such
Building or Buildings, such as elevators, stairs, corridors and restrooms, and
the public and common areas of the Project, the costs of which items contained
in this Section 7.2 shall be included as a part of Operating Costs, subject to
the terms, conditions, exclusions and limitations contained in Section 3.2 of
this Lease; provided, however, that Tenant shall pay the cost of repairs for any
damage occasioned by Tenant's use of the Premises or the Project or any act or
omission of Tenant or Tenant's Representatives or Visitors, to the extent (if
any) not covered by Landlord's property insurance. Landlord shall be under no
obligation to inspect the Premises. Tenant shall promptly report in writing to
Landlord any defective condition known to Tenant which Landlord is required to
repair. As a material part of the consideration for this Lease, Tenant hereby
waives any benefits of any applicable existing or future Law, including the
provisions of California Civil Code Sections 1932(1), 1941 and 1942, that allows
a tenant to make repairs at its landlord's expense.
7.3 Landlord hereby reserves the right, at any time and from time to time,
without liability to Tenant, and without constituting an eviction, constructive
or otherwise, or entitling Tenant to any abatement of rent or to terminate this
Lease or otherwise releasing Tenant from any of Tenant's obligations under this
Lease:
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(a) To make alterations, additions, repairs, improvements to or in
or to decrease the size of area of, all or any part of a Building or the
Project, the fixtures and equipment therein, and the Building Systems (except
that Landlord shall not have any right under this provision to materially reduce
the size of the Premises, or to permanently, materially and adversely affect
Tenant's access to and use of the Premises, except only as may be required to
comply with Laws or as a result of any fire or other casualty or Condemnation);
(b) To change the Project's name or street address;
(c) To install and maintain any and all signs on the exterior
and interior of the Building;s
(d) To reduce, increase, enclose or otherwise change at any time
and from time to time the size, number, location, lay-out and nature of the
common areas (including the Parking Facility) and other tenancies and premises
in the Project and to create additional rentable areas through use or enclosure
of common areas; and
(e) If any governmental authority promulgates or revises any Law
or imposes mandatory or voluntary controls or guidelines on Landlord or the
Project relating to the use or conservation of energy or utilities or the
reduction of automobile or other emissions or reduction or management of traffic
or parking on the Project (collectively "CONTROLS"), to comply with such
Controls, whether mandatory or voluntary, or make any alterations to the Project
related thereto.
(f) In exercising its rights under this Section 7.3, Landlord
agrees to use reasonable efforts to minimize any interruption to or disruption
of Tenant's use of the Premises.
8. TENANT'S TAXES. "TENANT'S TAXES" shall mean (a) all taxes, assessments,
license fees and other governmental charges or impositions levied or assessed
against or with respect to Tenant's personal property or Trade Fixtures in the
Premises, whether any such imposition is levied directly against Tenant or
levied against Landlord or the Project, (b) all rental, excise, sales or
transaction privilege taxes arising out of this Lease (excluding, however, state
and federal personal or corporate income taxes measured by the income of
Landlord from all sources) imposed by any taxing authority upon Landlord or upon
Landlord's receipt of any rent payable by Tenant pursuant to the terms of this
Lease ("RENTAL TAX"), and (c) any increase in Taxes attributable to inclusion of
a value placed on Tenant's personal property, Trade Fixtures or Alterations.
Tenant shall pay any Rental Tax to Landlord in addition to and at the same time
as Base Rent is payable under this Lease, and shall pay all other Tenant's Taxes
before delinquency (and, at Landlord's request, shall furnish Landlord
reasonably satisfactory evidence thereof). If Landlord pays Tenant's Taxes or
any portion thereof, Tenant shall reimburse Landlord upon demand for the amount
of such payment, together with interest at the Interest Rate from the date of
Landlord's payment to the date of Tenant's reimbursement.
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9. UTILITIES AND SERVICES.
9.1 DESCRIPTION OF SERVICES. Landlord shall furnish to the Premises:
reasonable amounts of heat, ventilation and air-conditioning during the Business
Hours specified in the Basic Lease Information ("BUSINESS HOURS") on weekdays
except public holidays ("BUSINESS DAYS"); reasonable amounts of electricity; and
janitorial services on Business Days (except public holidays). Landlord shall
also provide each Building included in the Premises with normal fluorescent tube
replacement, window washing, elevator service, and common area toilet room
supplies. Any additional utilities or services that Landlord may agree to
provide (including lamp or tube replacement for other than Building Standard
lighting fixtures) shall be at Tenant's sole expense. Janitorial specifications
are attached hereto as Exhibit F.
9.2 PAYMENT FOR ADDITIONAL UTILITIES AND SERVICES.
(a) Upon request by Tenant in accordance with the procedures
established by Landlord from time to time for furnishing HVAC service at times
other than Business Hours on Business Days, Landlord shall furnish such service
to Tenant and Tenant shall pay for such services on an hourly basis at the then
prevailing rate established for the applicable Building by Landlord based on
Landlord's actual costs for furnishing HVAC service at times other than Business
Hours on Business Days, including utility costs, labor costs, maintenance and
repair costs and depreciation of the HVAC System.
(b) If the temperature otherwise maintained in any portion of the
Premises by the HVAC systems of a Building is affected as a result of (i) any
lights, machines or equipment used by Tenant in the Premises, or (ii) the
occupancy of the Premises by more than one person per 150 square feet of
rentable area, then Landlord shall have the right to install any machinery or
equipment reasonably necessary to restore the temperature, including
modifications to the standard air-conditioning equipment. The cost of any such
equipment and modifications, including the cost of installation and any
additional cost of operation and maintenance of the same, shall be paid by
Tenant to Landlord upon demand.
(c) If Tenant's usage of electricity, water or any other utility
service exceeds the use of such utility Landlord reasonably determines to be
typical, normal and customary for the particular Building, Landlord may
reasonably determine the amount of such excess use by any reasonable means
(including the installation at Landlord's request but at Tenant's expense of a
separate meter or other measuring device) and charge Tenant for the cost of such
excess usage. In addition, Landlord may impose a reasonable charge for the use
of any additional or unusual janitorial services required by Tenant because of
any unusual Tenant Improvements or Alterations, the carelessness of Tenant or
the nature of Tenant's business (including hours of operation).
9.3 INTERRUPTION OF SERVICES. In the event of an interruption in, or
failure or inability to provide any of the services or utilities described in
Section 9.1 - "Description of Services" (a "SERVICE FAILURE"), such Service
Failure shall not, regardless of its duration, constitute an eviction of Tenant,
constructive or otherwise, or impose upon Landlord any liability whatsoever,
including,
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but not limited to, liability for consequential damages or loss of
business by Tenant or, except as provided herein, entitle Tenant to an abatement
of rent or to terminate this Lease.
(a) If any Service Failure not caused by Tenant or its
Representatives prevents Tenant from reasonably using a material portion of the
Premises and Tenant in fact ceases to use such portion of the Premises, Tenant
shall be entitled to an abatement of Base Rent and Additional Rent with respect
to the portion of the Premises that Tenant is prevented from using by reason of
such Service Failure in the following circumstances: (i) if Landlord fails to
commence reasonable efforts to remedy the Service Failure within five (5)
Business Days following the occurrence of the Service Failure, or after
commencing such reasonable efforts to remedy the Service Failure, Landlord fails
diligently to pursue efforts to remedy such Service Failure, and such failure
has persisted and continuously prevented Tenant from using a material portion of
the Premises during that period, the abatement of rent shall commence on the
sixth (6th) Business Day following the Service Failure and continue until Tenant
is no longer so prevented from using such portion of the Premises; and (ii) if
the Service Failure in all events is not remedied within thirty (30) days
following the occurrence of the Service Failure and Tenant in fact does not use
such portion of the Premises for an uninterrupted period of thirty (30) days or
more by reason of such Service Failure, the abatement of rent shall commence no
later than the thirty-first (31st) day following the occurrence of the Service
Failure and continue until Tenant is no longer so prevented from using such
portion of the Premises.
(b) If a Service Failure is caused by Tenant or its
Representatives, Landlord shall nonetheless remedy the Service Failure, at the
expense of Tenant, pursuant to Landlord's maintenance and repair obligations
under Section 7 - "Maintenance and Repair" or Section 12.1 - "Landlord's Duty to
Repair," as the case may be, but Tenant shall not be entitled to an abatement of
rent or to terminate this Lease as a result of any such Service Failure.
(c) Notwithstanding Tenant's entitlement to rent abatement under
the preceding provisions, Tenant shall continue to pay Tenant's then current
rent until such time as Landlord and Tenant agree on the amount of the rent
abatement. If Landlord and Tenant are unable to agree on the amount of such
abatement within ten (10) Business Days of the date they commence negotiations
regarding the abatement, then either party may submit the matter to binding
arbitration pursuant to Sections 1280 ET SEQ. of the California Code of Civil
Procedure.
(d) In addition to the foregoing provisions, if there is a Service
Failure not caused by Tenant or its Representatives and such Service Failure
prevents Tenant from conducting its business in the Premises in the manner in
which Tenant intends to conduct such business, and (i) Landlord fails to
commence reasonable efforts to remedy the Service Failure within sixty (60) days
following the occurrence of the Service Failure, or after commencing such
reasonable efforts to remedy the Service Failure, Landlord fails diligently to
pursue efforts to remedy such Service Failure, or (ii) the Service Failure in
all events is not remedied within one (1) year following its occurrence and
Tenant in fact does not conduct any business in the Premises for an
uninterrupted period of one (1) year or more, Tenant shall have the right to
terminate this Lease by written notice delivered to Landlord within ten (10)
Business Days following the event described in clauses (i) or (ii) above giving
rise to the right to terminate.
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(e) Where the cause of a Service Failure is within the control of
a public utility or other public or quasi-public entity outside Landlord's
control, notification to such utility or entity of the Service Failure and
request to remedy the failure shall constitute "reasonable efforts" by Landlord
to remedy the Service Failure.
(f) Tenant hereby waives the provisions of California Civil Code
Section 1932(1) or any other applicable existing or future law, ordinance or
governmental regulation permitting the termination of this Lease due to such
interruption, failure or inability.
10. EXCULPATION AND INDEMNIFICATION.
10.1 LANDLORD'S INDEMNIFICATION OF TENANT. Landlord shall indemnify,
protect, defend and hold Tenant harmless from and against any claims, actions,
liabilities, damages, costs or expenses, including reasonable attorneys' fees
and costs incurred in defending against the same ("CLAIMS") asserted by any
third party against Tenant for loss, injury or damage, to the extent such loss,
injury or damage is caused by the willful misconduct or negligent acts or
omissions of Landlord or its authorized representatives.
10.2 TENANT'S INDEMNIFICATION OF LANDLORD. Tenant shall indemnify,
protect, defend and hold Landlord and Landlord's authorized representatives
harmless from and against Claims arising from (a) the acts or omissions of
Tenant or Tenant's Representatives or Visitors in or about the Project, or (b)
any construction or other work undertaken by Tenant on the Premises (including
any design defects), or (c) any loss, injury or damage, howsoever and by
whomsoever caused, to any person or property, occurring in or about the Premises
during the Term, excepting only Claims described in this clause (c) to the
extent they are caused by the willful misconduct or negligent acts or omissions
of Landlord or its authorized representatives.
10.3 DAMAGE TO TENANT AND TENANT'S PROPERTY. Except for any willful or
unlawful injury by Landlord to Tenant's property, Landlord shall not be liable
to Tenant for any loss, injury or other damage to Tenant or to Tenant's property
in or about the Premises or the Project from any cause (including defects in the
Project or in any equipment in the Project; fire, explosion or other casualty;
bursting, rupture, leakage or overflow of any plumbing or other pipes or lines,
sprinklers, tanks, drains, drinking fountains or washstands in, above, or about
the Premises or the Project; or acts of other tenants in the Project). Tenant
hereby waives all claims against Landlord for any such loss, injury or damage
and the cost and expense of defending against claims relating thereto, including
any loss, injury or damage caused by Landlord's negligence (active or passive)
or misconduct. Notwithstanding any other provision of this Lease to the
contrary, in no event shall Landlord be liable to Tenant for any punitive or
consequential damages or damages for loss of business by Tenant.
10.4 SURVIVAL. The obligations of the parties under this Section 10 shall
survive the expiration or termination of this Lease.
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11. INSURANCE.
11.1 TENANT'S INSURANCE.
(a) LIABILITY INSURANCE. Tenant shall maintain in full force
throughout the Term, commercial general liability insurance providing coverage
on an occurrence form basis with limits of not less than Two Million Dollars
($2,000,000.00) each occurrence for bodily injury and property damage combined,
Two Million Dollars ($2,000,000.00) annual general aggregate, and Two Million
Dollars ($2,000,000.00) products and completed operations annual aggregate.
Tenant's liability insurance policy or policies shall: (i) include premises and
operations liability coverage, products and completed operations liability
coverage, broad form property damage coverage including completed operations,
blanket contractual liability coverage including, to the maximum extent
possible, coverage for the indemnification obligations of Tenant under this
Lease, and personal and advertising injury coverage; (ii) provide that the
insurance company has the duty to defend all insureds under the policy; (iii)
provide that defense costs are paid in addition to and do not deplete any of the
policy limits; (iv) cover liabilities arising out of or incurred in connection
with Tenant's use or occupancy of the Premises or the Project; (v) extend
coverage to cover liability for the actions of Tenant's Representatives and
Visitors; and (vi) designate separate limits for the Project. Each policy of
liability insurance required by this Section shall: (i) contain a cross
liability endorsement or separation of insureds clause; (ii) provide that any
waiver of subrogation rights or release prior to a loss does not void coverage;
(iii) provide that it is primary to and not contributing with, any policy of
insurance carried by Landlord covering the same loss; (iv) provide that any
failure to comply with the reporting provisions shall not affect coverage
provided to Landlord, its partners, property managers and Mortgagees; and (v)
name Landlord, its partners, the Property Manager identified in the Basic Lease
Information (the "PROPERTY MANAGER"), and such other parties in interest as
Landlord may from time to time reasonably designate to Tenant in writing, as
additional insureds. Such additional insureds shall be provided at least the
same extent of coverage as is provided to Tenant under such policies. All
endorsements effecting such additional insured status shall be at least as broad
as additional insured endorsement form number CG 20 11 01 96 promulgated by the
Insurance Services Office.
(b) PROPERTY INSURANCE. Tenant shall at all times maintain in
effect with respect to any Alterations and Tenant's Trade Fixtures and personal
property, commercial property insurance providing coverage, on an "all risk" or
"special form" basis, in an amount equal to at least 90% of the full replacement
cost of the covered property. Tenant may carry such insurance under a blanket
policy, provided that such policy provides coverage equivalent to a separate
policy. During the Term, the proceeds from any such policies of insurance shall
be used for the repair or replacement of the Alterations, Trade Fixtures and
personal property so insured. Landlord shall be provided coverage under such
insurance to the extent of its insurable interest and, if requested by Landlord,
both Landlord and Tenant shall sign all documents reasonably necessary or proper
in connection with the settlement of any claim or loss under such insurance.
Landlord will have no obligation to carry insurance on any Alterations or on
Tenant's Trade Fixtures or personal property.
(c) REQUIREMENTS FOR ALL POLICIES. Each policy of insurance
required under this Section 11.1 shall: (i) be in a form, and written by an
insurer, reasonably acceptable to Landlord,
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ii) be maintained at Tenant's sole cost and expense, and (iii) require at least
ten (10) days' written notice to Landlord prior to any cancellation, nonrenewal
or modification of insurance coverage. Insurance companies issuing such policies
shall have rating classifications of "A" or better and financial size category
ratings of "VII" or better according to the latest edition of the A.M. Best Key
Rating Guide. All insurance companies issuing such policies shall be admitted
carriers licensed to do business in the state where the Project is located. Any
deductible amount under such insurance shall not exceed $5,000. Tenant shall
provide to Landlord, upon request, evidence that the insurance required to be
carried by Tenant pursuant to this Section, including any endorsement effecting
the additional insured status, is in full force and effect and that premiums
therefor have been paid.
(d) UPDATING COVERAGE. Tenant shall increase the amounts of
insurance as reasonably required by any Mortgagee, and, not more frequently than
once every three (3) years, as reasonably recommended by Landlord's insurance
broker, if, in the opinion of either of them, the amount of insurance then
required under this Lease is not adequate. Any limits set forth in this Lease on
the amount or type of coverage required by Tenant's insurance shall not limit
the liability of Tenant under this Lease.
(e) CERTIFICATES OF INSURANCE. Prior to occupancy of the Premises
by Tenant, and not less than thirty (30) days prior to expiration of any policy
thereafter, Tenant shall furnish to Landlord a certificate of insurance
reflecting that the insurance required by this Section is in force, accompanied
by an endorsement showing the required additional insureds in substance and form
reasonably satisfactory to Landlord. Notwithstanding the requirements of this
paragraph, Tenant shall at Landlord's request provide to Landlord a certified
copy of each insurance policy required to be in force at any time pursuant to
the requirements of this Lease or its Exhibits.
11.2 LANDLORD'S INSURANCE. During the Term, to the extent such coverages
are available at a commercially reasonable cost, Landlord shall maintain in
effect insurance on the Project with responsible insurers, on an "all risk" or
"special form" basis, insuring the Project and the Tenant Improvements in an
amount equal to at least 90% of the replacement cost thereof, excluding land,
foundations, footings and underground installations. Landlord may, but shall not
be obligated to, carry insurance against additional perils and/or in greater
amounts.
11.3 MUTUAL WAIVER OF RIGHT OF RECOVERY & WAIVER OF SUBROGATION. Landlord
and Tenant each hereby waive any right of recovery against each other and the
partners, managers, members, shareholders, officers, directors and authorized
representatives of each other for any loss or damage that is covered by any
policy of property insurance maintained by either party (or required by this
Lease to be maintained) with respect to the Premises or the Project or any
operation therein, regardless of cause, including negligence (active or passive)
of the party benefiting from the waiver. If any such policy of insurance
relating to this Lease or to the Premises or the Project does not permit the
foregoing waiver or if the coverage under any such policy would be invalidated
as a result of such waiver, the party maintaining such policy shall obtain from
the insurer under such policy a waiver of all right of recovery by way of
subrogation against either party in connection with any claim, loss or damage
covered by such policy.
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12. DAMAGE OR DESTRUCTION.
12.1 LANDLORD'S DUTY TO REPAIR.
(a) If all or a substantial part of the Premises are rendered
untenantable or inaccessible by damage to all or any part of the Project from
fire or other casualty then, unless either party is entitled to and elects to
terminate this Lease pursuant to Sections 12.2 - LANDLORD'S RIGHT TO Terminate
and 12.3 - TENANT'S RIGHT TO TERMINATE, Landlord shall, at its expense, use
reasonable efforts to repair and restore the Premises and/or the Project, as the
case may be, to substantially their former condition to the extent permitted by
then applicable Laws; provided, however, that in no event shall Landlord have
any obligation for repair or restoration beyond the extent of insurance proceeds
received by Landlord for such repair or restoration, or for any of Tenant's
personal property, Trade Fixtures or Alterations.
(b) If Landlord is required or elects to repair damage to the
Premises and/or the Project, this Lease shall continue in effect, but Tenant's
Base Rent and Additional Rent shall be abated with regard to any portion of the
Premises that Tenant is prevented from using by reason of such damage or its
repair from the date of the casualty until substantial completion of Landlord's
repair of the affected portion of the Premises as required under this Lease. In
no event shall Landlord be liable to Tenant by reason of any injury to or
interference with Tenant's business or property arising from fire or other
casualty or by reason of any repairs to any part of the Project necessitated by
such casualty.
12.2 LANDLORD'S RIGHT TO TERMINATE. Landlord may elect to terminate
this Lease following damage by fire or other casualty under the following
circumstances:
(a) If, in the reasonable judgment of Landlord, the Premises and
the Project cannot be substantially repaired and restored under applicable Laws
within one (1) year from the date of the casualty;
(b) If, in the reasonable judgment of Landlord, adequate proceeds
are not, for any reason, made available to Landlord from Landlord's insurance
policies (and/or from Landlord's funds made available for such purpose, at
Landlord's sole option) to make the required repairs;
(c) If the Project is damaged or destroyed to the extent that, in
the reasonable judgment of Landlord, the cost to repair and restore the Project
would exceed forty percent (40%) of the full replacement cost of the Project,
whether or not the Premises are at all damaged or destroyed; or
(d) If the fire or other casualty occurs during the last year
of the Term.
If any of the circumstances described in subparagraphs (a), (b), (c) or (d) of
this Section 12.2 occur or arise, Landlord shall give Tenant notice within one
hundred and twenty (120) days after the date of the casualty, specifying whether
Landlord elects to terminate this Lease as provided above and, if
29
not, Landlord's estimate of the time required to complete Landlord's repair
obligations under this Lease.
12.3 TENANT'S RIGHT TO TERMINATE. If all or a substantial part of the
Premises are rendered untenantable or inaccessible by damage to all or any part
of the Project from fire or other casualty, and Landlord does not elect to
terminate as provided above, then Tenant may elect to terminate this Lease if
Landlord's estimate of the time required to complete Landlord's repair
obligations under this Lease is greater than one (1) year, in which event Tenant
may elect to terminate this Lease by giving Landlord notice of such election to
terminate within thirty (30) days after Landlord's notice to Tenant pursuant to
Section 12.2 - LANDLORD'S RIGHT TO TERMINATE.
12.4 WAIVER. Landlord and Tenant each hereby waive the provisions of
California Civil Code Sections 1932(2), 1933(4) and any other applicable
existing or future Law permitting the termination of a lease agreement in the
event of damage or destruction under any circumstances other than as provided in
Sections 12.2 - LANDLORD'S RIGHT TO TERMINATE and 12.3 - TENANT'S RIGHT TO
TERMINATE.
13. CONDEMNATION.
13.1 DEFINITIONS.
(a) "AWARD" shall mean all compensation, sums, or anything of
value awarded, paid or received on a total or partial Condemnation.
(b) "CONDEMNATION" shall mean (i) a permanent taking (or a
temporary taking for a period extending beyond the end of the Term) pursuant to
the exercise of the power of condemnation or eminent domain by any public or
quasi-public authority, private corporation or individual having such power
("CONDEMNOR"), whether by legal proceedings or otherwise, or (ii) a voluntary
sale or transfer by Landlord to any such authority, either under threat of
condemnation or while legal proceedings for condemnation are pending.
(c) "DATE OF CONDEMNATION" shall mean the earlier of the date that
title to the property taken is vested in the Condemnor or the date the Condemnor
has the right to possession of the property being condemned.
13.2 EFFECT ON LEASE.
(a) If the Premises are totally taken by Condemnation, this Lease
shall terminate as of the Date of Condemnation. If a portion but not all of the
Premises is taken by Condemnation, this Lease shall remain in effect; provided,
however, that if the portion of the Premises remaining after the Condemnation
will be unsuitable for Tenant's continued use, then upon notice to Landlord
within thirty (30) days after Landlord notifies Tenant of the Condemnation,
Tenant may terminate this Lease effective as of the Date of Condemnation.
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(b) If twenty-five percent (25%) or more of the Project or of the
parcel(s) of land on which the Project is situated or of the Parking Facility or
of the floor area in the Project is taken by Condemnation, or if as a result of
any Condemnation the Project is no longer reasonably suitable for use as an
office building, whether or not any portion of the Premises is taken, Landlord
may elect to terminate this Lease, effective as of the Date of Condemnation, by
notice to Tenant within thirty (30) days after the Date of Condemnation.
(c) If all or a portion of the Premises is temporarily taken by a
Condemnor for a period not extending beyond the end of the Term, this Lease
shall remain in full force and effect.
13.3 RESTORATION. If this Lease is not terminated as provided in Section
13.2 - EFFECT ON LEASE, Landlord, at its expense, shall diligently proceed to
repair and restore the Premises to substantially its former condition (to the
extent permitted by then applicable Laws) and/or repair and restore the Project
to an architecturally complete office building; provided, however, that
Landlord's obligations to so repair and restore shall be limited to the amount
of any Award received by Landlord and not required to be paid to any Mortgagee
(as defined in Section 20.2 below). In no event shall Landlord have any
obligation to repair or replace any improvements in the Premises beyond the
amount of any Award received by Landlord for such repair or to repair or replace
any of Tenant's personal property, Trade Fixtures, or Alterations.
13.4 ABATEMENT AND REDUCTION OF RENT. If any portion of the Premises is
taken in a Condemnation or is rendered permanently untenantable by repairs
necessitated by the Condemnation, and this Lease is not terminated, the Base
Rent and Additional Rent payable under this Lease shall be proportionally
reduced as of the Date of Condemnation based upon the percentage of rentable
square feet in the Premises so taken or rendered permanently untenantable. In
addition, if this Lease remains in effect following a Condemnation and Landlord
proceeds to repair and restore the Premises, the Base Rent and Additional Rent
payable under this Lease shall be abated during the period of such repair or
restoration to the extent such repairs prevent Tenant's use of the Premises.
13.5 AWARDS. Any Award made shall be paid to Landlord, and Tenant hereby
assigns to Landlord, and waives all interest in or claim to, any such Award,
including any claim for the value of the unexpired Term; provided, however, that
Tenant shall be entitled to receive, or to prosecute a separate claim for, an
Award for a temporary taking of the Premises or a portion thereof by a Condemnor
where this Lease is not terminated (to the extent such Award relates to the
unexpired Term), or an Award or portion thereof separately designated for
relocation expenses or the interruption of or damage to Tenant's business or as
compensation for Tenant's personal property, Trade Fixtures or Alterations.
13.6 WAIVER. Landlord and Tenant each hereby waive the provisions of
California Code of Civil Procedure Section 1265.130 and any other applicable
existing or future Law allowing either party to petition for a termination of
this Lease upon a partial taking of the Premises and/or the Project.
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14. ASSIGNMENT AND SUBLETTING.
14.1 LANDLORD'S CONSENT REQUIRED. Tenant shall not assign this Lease or
any interest therein, or sublet or license or permit the use or occupancy of the
Premises or any part thereof by or for the benefit of anyone other than Tenant,
or in any other manner transfer all or any part of Tenant's interest under this
Lease (each and all a "TRANSFER" and the transferee in any transfer is referred
to herein as a "TRANSFEREE"), without the prior written consent of Landlord,
which consent (subject to the other provisions of this Section 14) shall not be
unreasonably withheld. Notwithstanding any provision in this Lease to the
contrary, Tenant shall not mortgage, pledge, hypothecate or otherwise encumber
this Lease or all or any part of Tenant's interest under this Lease. The term
"Transfer" shall include any direct or indirect transfer of ownership interest
of the entity, whether in one transaction or in a series of related
transactions, that results in any person or entity (or group of related persons
or entities) becoming the owners of fifty percent (50%) or more of the ownership
interests of the entity (a "CHANGE OF CONTROL"); provided, however, that none of
the following shall constitute a Transfer, or be considered in determining
whether or not a Change of Control has occurred: (i) any transfer of the
publicly held portion of Tenant's stock, if Tenant is a corporation and the
stock of such corporation is publicly held and traded through an exchange or
over the counter; (ii) if Tenant is a corporation, any public or private
placements or offerings of Tenant's stock; and (iii) the issuance of warrants or
stock options to purchase Tenant's stock, and the exercise of purchase rights
under any such warrants or stock options.
14.2 REASONABLE CONSENT.
(a) Prior to any proposed Transfer, Tenant shall submit in writing
to Landlord (i) the name and legal composition of the proposed assignee,
subtenant, user or other transferee (each a "PROPOSED TRANSFEREE"); (ii) the
nature of the business proposed to be carried on in the Premises; (iii) a
current balance sheet, income statements for the last two years and such other
reasonable financial and other information concerning the Proposed Transferee as
Landlord may request; and (iv) a copy of the proposed assignment, sublease or
other agreement governing the proposed Transfer. Within fifteen (15) Business
Days after Landlord receives all such information it shall notify Tenant whether
it approves or disapproves such Transfer or if it elects to proceed under
Section 14.7 - LANDLORD'S RIGHT TO SPACE.
(b) Tenant acknowledges and agrees that, among other circumstances
for which Landlord could reasonably withhold consent to a proposed Transfer, it
shall be reasonable for Landlord to withhold consent where (i) the Proposed
Transferee does not intend itself to occupy the entire portion of the Premises
assigned or sublet, (ii) Landlord reasonably disapproves of the Proposed
Transferee's business operating ability or history, reputation or
creditworthiness or the character of the business to be conducted by the
Proposed Transferee at the Premises, (iii) the Proposed Transferee is a
governmental agency or unit or an existing tenant in the Project, (iv) the
proposed Transfer would violate any "exclusive" rights of any tenants in the
Project, (v) Landlord or Landlord's agent has shown space in the Project to the
Proposed Transferee or responded to any inquiries from the Proposed Transferee
or the Proposed Transferee's agent concerning availability of space in the
Project, at any time within the preceding nine months, or (vi) Landlord
otherwise reasonably determines that the proposed Transfer would have the effect
of decreasing the value of
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the Project or increasing the expenses associated with operating, maintaining
and repairing the Project. In no event may Tenant publicly advertise all or any
portion of the Premises for assignment or sublease at a rental less than that
then sought by Landlord for a direct lease (non-sublease) of comparable space in
the Project.
14.3 EXCESS CONSIDERATION. If Landlord consents to the Transfer, Landlord
shall be entitled to receive as Additional Rent hereunder, fifty percent (50%)
of all "Sublease Profits" (as defined below). "Sublease Profits" shall mean any
consideration paid by the Transferee for the assignment or sublease and, in the
case of a sublease, the excess of the rent and other consideration payable by
the subtenant over the amount of Base Rent and Additional Rent payable hereunder
applicable to the subleased space, less any and all direct, out-of-pocket
expenses and cash concessions, including costs for necessary Alterations and
brokerage commission, paid by Tenant to procure the assignee or subtenant.
Tenant shall pay to Landlord as additional rent, within ten (10) days after
receipt by Tenant, any such excess consideration paid by any transferee for the
Transfer provided any capital expenditures and brokerage commissions in
connection with any sublease shall be amortized straight-line, with interest at
the rate of ten percent (10%) over the term of the sublease.
14.4 NO RELEASE OF TENANT. No consent by Landlord to any Transfer shall
relieve Tenant of any obligation to be performed by Tenant under this Lease,
whether occurring before or after such consent, assignment, subletting or other
Transfer. Each Transferee shall be jointly and severally liable with Tenant (and
Tenant shall be jointly and severally liable with each Transferee) for the
payment of rent (or, in the case of a sublease, rent in the amount set forth in
the sublease) and for the performance of all other terms and provisions of this
Lease. The consent by Landlord to any Transfer shall not relieve Tenant or any
such Transferee from the obligation to obtain Landlord's express prior written
consent to any subsequent Transfer by Tenant or any Transferee. The acceptance
of rent by Landlord from any other person (whether or not such person is an
occupant of the Premises) shall not be deemed to be a waiver by Landlord of any
provision of this Lease or to be a consent to any Transfer.
14.5 EXPENSES AND ATTORNEYS' FEES. Tenant shall pay to Landlord on demand
all costs and expenses (including reasonable attorneys' fees) reasonably
incurred by Landlord in connection with reviewing or consenting to any proposed
Transfer (including any request for consent to, or any waiver of Landlord's
rights in connection with, any security interest in any of Tenant's property at
the Premises). Landlord shall not be entitled under this provision to
reimbursement from Tenant for expenses in excess of $2,000 without giving Tenant
prior notice that the expenses are expected to exceed $2,000.
14.6 EFFECTIVENESS OF TRANSFER. Prior to the date on which any permitted
Transfer (whether or not requiring Landlord's consent) becomes effective, Tenant
shall deliver to Landlord a counterpart of the fully executed Transfer document
and Landlord's standard form of Consent to Assignment or Consent to Sublease
executed by Tenant and the Transferee in which each of Tenant and the Transferee
confirms its obligations pursuant to this Lease. Failure or refusal of a
Transferee to execute any such instrument shall not release or discharge the
Transferee from liability as provided herein. The voluntary, involuntary or
other surrender of this Lease by Tenant, or a mutual
33
cancellation by Landlord and Tenant, shall not work a merger, and any such
surrender or cancellation shall, at the option of Landlord, either terminate all
or any existing subleases or operate as an assignment to Landlord of any or all
of such subleases.
14.7 LANDLORD'S RIGHT TO SPACE. Notwithstanding any of the above
provisions of this Section to the contrary, if Tenant notifies Landlord that it
desires to enter into a Transfer, Landlord, in lieu of consenting to such
Transfer, may elect (x) in the case of an assignment or a sublease of the entire
Premises, to terminate this Lease, or (y) in the case of a sublease of less than
the entire Premises, to terminate this Lease as it relates to the space proposed
to be subleased by Tenant. Notwithstanding the foregoing, subject to Landlord's
approval rights and the other provisions of this Section 14, Landlord shall not
have the right to partially terminate this Lease with respect to any sublease
whenever (i) such sublease does not result in Tenant subleasing more than thirty
percent (30%) of the rentable square feet in the Premises at any given time, and
(ii) after the commencement date of any sublease, the term of any such sublease
(including any renewal option or options) is less than fifty percent (50%) of
the remaining Term of this Lease, and (iii) the term of any such sublease does
not expire within the last three (3) years of the Term of this Lease. If
Landlord elects to terminate this Lease (whether partially, or in its entirety)
pursuant to the provisions of this Section 14.7, this Lease will terminate (or
the space proposed to be subleased will be removed from the Premises subject to
this Lease and the Base Rent and Tenant's Operating Costs Share and Tenant's Tax
Share under this Lease shall be proportionately reduced) on the earlier of sixty
(60) days after the date of Landlord's notice to Tenant making the election set
forth in this Section 14.7 or the date the Transfer was proposed to be
effective, and Landlord may lease such space to any party, including the
prospective Transferee identified by Tenant.
14.8 ASSIGNMENT OF SUBLEASE RENTS. Tenant hereby absolutely and
irrevocably assigns to Landlord any and all rights to receive rent and other
consideration from any sublease and agrees that Landlord, as assignee or as
attorney-in-fact for Tenant for purposes hereof, or a receiver for Tenant
appointed on Landlord's application may (but shall not be obligated to) collect
such rents and other consideration and apply the same toward Tenant's
obligations to Landlord under this Lease; provided, however, that Landlord
grants to Tenant at all times prior to occurrence of any breach or default by
Tenant a revocable license to collect such rents (which license shall
automatically and without notice be and be deemed to have been revoked and
terminated immediately upon any Event of Default).
14.9 TRANSFER TO AFFILIATE. Notwithstanding any provision contained in the
Section 14 to the contrary, Tenant shall have the right, without the consent of
Landlord, upon ten (10) days prior written notice to Landlord, to transfer
Tenant's interest in this Lease to an "Affiliate" of Tenant, and the provisions
of Sections 14.2, 14.3 and 14.7 shall not apply with respect to the transfer to
the Affiliate, but the transfer to the Affiliate shall be subject to all other
terms and conditions of this Lease, including the provisions of this Section
14.9. Tenant shall remain liable under this Lease after any such transfer. For
the purposes of this Article 14, the term "Affiliate" of Tenant shall mean and
refer to any entity controlling, controlled by or under common control with
Tenant or Tenant's parent, as the case may be. "Control" as used herein shall
mean the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of such controlled entity; and the
ownership, or possession of the right to vote, in the ordinary direction of
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its affairs, of at least fifty percent (50%) of the voting interest in any
entity. Notwithstanding Tenant's right to Transfer to an Affiliate pursuant to
the provisions of this Section 14.9, Tenant may not, through use of its rights
under this Article 14 in two or more transactions (whether separate transactions
or steps or phases of a single transaction), at one time or over time, whether
by first assigning this Lease to a subsidiary and then merging the subsidiary
into another entity or selling the stock of the subsidiary or by other means,
assign or sublease the Premises, or transfer control of Tenant, to any person or
entity which is not a subsidiary, affiliate or controlling corporation of the
original Tenant, as then constituted, existing prior to the commencement of such
transactions, without first obtaining Landlord's prior written consent pursuant
to the provisions of Section 14.2.
15. DEFAULT AND REMEDIES.
15.1 EVENTS OF DEFAULT. The occurrence of any of the following shall
constitute an "EVENT OF DEFAULT" by Tenant:
(a) Tenant fails to make any payment of rent when due, or any
amount required to replenish the security deposit as provided in Section 4 above
if payment in full is not received by Landlord within three (3) days after
written notice that it is due.
(b) Tenant abandons the Premises.
(c) Tenant fails timely to deliver any subordination document,
estoppel certificate or financial statement requested by Landlord within the
applicable time period specified in Sections 20 - ENCUMBRANCES - and 21 -
ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS - below.
(d) Tenant violates the restrictions on Transfer set forth in
Section 14 - ASSIGNMENT AND SUBLETTING.
(e) Tenant ceases doing business as a going concern; makes an
assignment for the benefit of creditors; is adjudicated an insolvent, files a
petition (or files an answer admitting the material allegations of a petition)
seeking relief under any state or federal bankruptcy or other statute, law or
regulation affecting creditors' rights; all or substantially all of Tenant's
assets are subject to judicial seizure or attachment and are not released within
30 days, or Tenant consents to or acquiesces in the appointment of a trustee,
receiver or liquidator for Tenant or for all or any substantial part of Tenant's
assets.
(f) Tenant fails, within ninety (90) days after the commencement
of any proceedings against Tenant seeking relief under any state or federal
bankruptcy or other statute, law or regulation affecting creditors' rights, to
have such proceedings dismissed, or Tenant fails, within ninety (90) days after
an appointment, without Tenant's consent or acquiescence, of any trustee,
receiver or liquidator for Tenant or for all or any substantial part of Tenant's
assets, to have such appointment vacated.
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(g) Tenant fails to perform or comply with any provision of this
Lease other than those described in (a) through (f) above, and does not fully
cure such failure within fifteen (15) days after notice to Tenant or, if such
failure cannot be cured within such fifteen (15)-day period, Tenant fails within
such fifteen (15)-day period to commence, and thereafter diligently proceed
with, all actions necessary to cure such failure as soon as reasonably possible
but in all events within ninety (90) days of such notice; provided, however,
that if Landlord in Landlord's reasonable judgment determines that such failure
cannot or will not be cured by Tenant within such ninety (90) days, then such
failure shall constitute an Event of Default immediately upon such notice to
Tenant.
15.2 REMEDIES. Upon the occurrence of an Event of Default, Landlord shall
have the following remedies, which shall not be exclusive but shall be
cumulative and shall be in addition to any other remedies now or hereafter
allowed by law:
(a) Landlord may terminate Tenant's right to possession of the
Premises at any time by written notice to Tenant. Tenant expressly acknowledges
that in the absence of such written notice from Landlord, no other act of
Landlord, including re-entry into the Premises, efforts to relet the Premises,
reletting of the Premises for Tenant's account, storage of Tenant's personal
property and Trade Fixtures, acceptance of keys to the Premises from Tenant or
exercise of any other rights and remedies under this Section, shall constitute
an acceptance of Tenant's surrender of the Premises or constitute a termination
of this Lease or of Tenant's right to possession of the Premises. Upon such
termination in writing of Tenant's right to possession of the Premises, as
herein provided, this Lease shall terminate and Landlord shall be entitled to
recover damages from Tenant as provided in California Civil Code Section 1951.2
and any other applicable existing or future Law providing for recovery of
damages for such breach, including the worth at the time of award of the amount
by which the rent which would be payable by Tenant hereunder for the remainder
of the Term after the date of the award of damages, including Additional Rent as
reasonably estimated by Landlord, exceeds the amount of such rental loss as
Tenant proves could have been reasonably avoided, discounted at the discount
rate published by the Federal Reserve Bank of San Francisco for member banks at
the time of the award plus one percent (1%).
(b) Landlord shall have the remedy described in California Civil
Code Section 1951.4 (Landlord may continue this Lease in effect after Tenant's
breach and abandonment and recover rent as it becomes due, if Tenant has the
right to sublet or assign, subject only to reasonable limitations).
(c) Landlord may cure the Event of Default at Tenant's expense. If
Landlord pays any sum or incurs any expense in curing the Event of Default,
Tenant shall reimburse Landlord upon demand for the amount of such payment or
expense with interest at the Interest Rate from the date the sum is paid or the
expense is incurred until Landlord is reimbursed by Tenant.
(d) Landlord may remove all Tenant's property from the Premises,
and such property may be stored by Landlord in a public warehouse or elsewhere
at the sole cost and for the account of Tenant. If Landlord does not elect to
store any or all of Tenant's property left in the Premises, Landlord may
consider such property to be abandoned by Tenant, and Landlord may thereupon
dispose of such property in any manner deemed appropriate by Landlord.
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Any proceeds realized by Landlord on the disposal of any such property shall be
applied first to offset all expenses of storage and sale, then credited against
Tenant's outstanding obligations to Landlord under this Lease, and any balance
remaining after satisfaction of all obligations of Tenant under this Lease shall
be delivered to Tenant.
16. LATE CHARGE AND INTEREST.
16.1 LATE CHARGE. If any payment of rent is not received by Landlord when
due, Tenant shall pay to Landlord on demand as a late charge ("Late Charge") an
additional amount equal to four percent (4%) of the overdue payment.
Notwithstanding the foregoing, Tenant shall not be obligated to pay a Late
Charge on the first payment of rent not received by Landlord when due in any
consecutive twelve (12) month period unless Tenant does not pay such rent within
five (5) days after written notice from Landlord (the "Past Due Notice") that
such payment of rent is past due. Tenant shall pay the Late Charge to Landlord
on demand commencing with the second (2nd) past due payment in any twelve (12)
month period, and continuing with each past due payment thereafter in such
twelve (12) month period. A Late Charge shall not be imposed more than once on
any particular installment not paid when due, but imposition of a Late Charge on
any payment not made when due does not eliminate or supersede late charges
imposed on other (prior) payments not made when due or preclude imposition of a
late charge on other installments or payments not made when due.
16.2 INTEREST. In addition to the late charges referred to above, which
are intended to defray Landlord's costs resulting from late payments, any
payment from Tenant to Landlord not paid when due shall at Landlord's option
bear interest from the date due until paid to Landlord by Tenant at the rate of
fifteen percent (15%) per annum or the maximum lawful rate that Landlord may
charge to Tenant under applicable laws, whichever is less (the "INTEREST RATE").
Acceptance of any late charge and/or interest shall not constitute a waiver of
Tenant's default with respect to the overdue sum or prevent Landlord from
exercising any of its other rights and remedies under this Lease.
17. WAIVER. No provisions of this Lease shall be deemed waived by either party
unless such waiver is in a writing signed by the waiving party. The waiver by
either party of any breach of any provision of this Lease shall not be deemed a
waiver of such provision or of any subsequent breach of the same or any other
provision of this Lease. No delay or omission in the exercise of any right or
remedy of either party upon any default by the other party shall impair such
right or remedy or be construed as a waiver. Landlord's acceptance of any
payments of rent due under this Lease shall not be deemed a waiver of any
default by Tenant under this Lease (including Tenant's recurrent failure to
timely pay rent) other than Tenant's nonpayment of the accepted sums, and no
endorsement or statement on any check or on any letter accompanying any check or
payment shall be deemed an accord and satisfaction. The consent to or approval
by either party of any act by the other party requiring the first party's
consent or approval shall not be deemed to waive or render unnecessary the
consenting or approving party's consent to or approval of any subsequent act by
the other party.
18. ENTRY, INSPECTION AND CLOSURE. Upon reasonable oral or written notice to
Tenant (and without notice in emergencies), Landlord and its authorized
representatives may enter
37
the Premises at all reasonable times to: (a) determine whether the Premises are
in good condition, (b) determine whether Tenant is complying with its
obligations under this Lease, (c) perform any maintenance or repair of the
Premises or the Project that Landlord has the right or obligation to perform,
(d) install or repair improvements for other tenants where access to the
Premises is required for such installation or repair, (e) serve, post or keep
posted any notices required or allowed under the provisions of this Lease, (f)
show the Premises to prospective brokers, agents, buyers, transferees,
Mortgagees or tenants, or (g) do any other act or thing necessary for the safety
or preservation of the Premises or the Project. When reasonably necessary
Landlord may temporarily close entrances, doors, corridors, elevators or other
facilities in the Project without liability to Tenant by reason of such closure.
Landlord shall conduct its activities under this Section in a manner that will
minimize inconvenience to Tenant without incurring additional expense to
Landlord. In no event shall Tenant be entitled to an abatement of rent on
account of any entry by Landlord, and Landlord shall not be liable in any manner
for any inconvenience, loss of business or other damage to Tenant or other
persons arising out of Landlord's entry on the Premises in accordance with this
Section. No action by Landlord pursuant to this paragraph shall constitute an
eviction of Tenant, constructive or otherwise, entitle Tenant to an abatement of
rent or to terminate this Lease or otherwise release Tenant from any of Tenant's
obligations under this Lease.
19. SURRENDER AND HOLDING OVER.
19.1 SURRENDER. Upon the expiration or termination of this Lease, Tenant
shall surrender the Premises and all Tenant Improvements and Alterations to
Landlord broom-clean and in their original condition, except for reasonable wear
and tear, damage from casualty or condemnation and any changes resulting from
approved Alterations; provided, however, that prior to the expiration or
termination of this Lease Tenant shall remove all telephone and other cabling
installed in the applicable Building by Tenant and remove from the Premises all
Tenant's personal property and any Trade Fixtures and all Alterations that
Landlord has elected to require Tenant to remove as provided in Section 6.1 -
TENANT IMPROVEMENTS & ALTERATIONS, and repair any damage caused by such removal.
If such removal is not completed before the expiration or termination of the
Term, Landlord shall have the right (but no obligation) to remove the same, and
Tenant shall pay Landlord on demand for all costs of removal and storage thereof
and for the rental value of the Premises for the period from the end of the Term
through the end of the time reasonably required for such removal. Landlord shall
also have the right to retain or dispose of all or any portion of such property
if Tenant does not pay all such costs and retrieve the property within ten (10)
days after notice from Landlord (in which event title to all such property
described in Landlord's notice shall be transferred to and vest in Landlord).
Tenant waives all Claims against Landlord for any damage or loss to Tenant
resulting from Landlord's removal, storage, retention, or disposition of any
such property. Upon expiration or termination of this Lease or of Tenant's
possession, whichever is earliest, Tenant shall surrender all keys to the
Premises or any other part of the applicable Building and shall deliver to
Landlord all keys for or make known to Landlord the combination of locks on all
safes, cabinets and vaults that may be located in the Premises. Tenant's
obligations under this Section shall survive the expiration or termination of
this Lease.
19.2 HOLDING OVER. If Tenant (directly or through any Transferee or other
successor-in-interest of Tenant) remains in possession of the Premises after the
expiration or termination of this
38
Lease, Tenant's continued possession shall be on the basis of a tenancy at the
sufferance of Landlord. No act or omission by Landlord, other than its specific
written consent, shall constitute permission for Tenant to continue in
possession of the Premises, and if such consent is given or declared to have
been given by a court judgment, Landlord may terminate Tenant's holdover tenancy
at any time upon seven (7) days written notice. In such event, Tenant shall
continue to comply with or perform all the terms and obligations of Tenant under
this Lease, except that the monthly Base Rent during Tenant's holding over shall
be twice the Base Rent payable in the last full month prior to the termination
hereof. Acceptance by Landlord of rent after such termination shall not
constitute a renewal or extension of this Lease; and nothing contained in this
provision shall be deemed to waive Landlord's right of re-entry or any other
right hereunder or at law. Tenant shall indemnify, defend and hold Landlord
harmless from and against all Claims arising or resulting directly or indirectly
from Tenant's failure to timely surrender the Premises, including (i) any rent
payable by or any loss, cost, or damages claimed by any prospective tenant of
the Premises, and (ii) Landlord's damages as a result of such prospective tenant
rescinding or refusing to enter into the prospective lease of the Premises by
reason of such failure to timely surrender the Premises.
Notwithstanding anything set forth in this Section 19.2 to the contrary,
Tenant shall have the one-time right (the "TEMPORARY EXTENSION OPTION") with
respect to each Building included in the Premises to extend the initial Term of
this Lease (but not the Extension Period contained in Section 38 of this Lease)
for a period of up to six (6) months after the Expiration Date (the "TEMPORARY
EXTENSION TERM") by delivering written notice of the exercise of such right
("TENANT'S TEMPORARY EXTENSION NOTICE") at least one (1) year prior to the
Expiration Date of the initial Term of this Lease with respect to such Building.
Tenant's Temporary Extension Notice shall specify the exact period that Tenant
selects for the Temporary Extension Term (which period shall be not less than
one (1) month nor more than six (6) months). Tenant shall have the right to
exercise the Temporary Extension Option, if at all, only if all of the following
conditions are satisfied: (A) Tenant shall not have exercised its renewal rights
under the Extension Option contained in Section 38 of this Lease; (B) at
Landlord's option, in addition to all remedies available to Landlord under this
Lease, at law or in equity, Tenant is not in monetary or material non-monetary
default under this Lease (after expiration of any applicable notice and cure
period) as of the date Tenant delivers Tenant's Temporary Extension Notice to
Landlord or the commencement of the Temporary Extension Term; and (C) such
renewal right is personal to the Original Tenant and any Affiliate to which
Tenant's entire interest in this Lease has been assigned pursuant to Section
14.9 above, and may only be exercised by the Original Tenant or such Affiliate
assignee (and not by any sublessee or other transferee of Tenant's interest in
this Lease). If Tenant timely exercises such Temporary Extension Option, all of
the terms and conditions of this Lease shall apply during the Temporary
Extension Term, except that the monthly Base Rent payable by Tenant during the
Temporary Extension Term shall be equal to the greater of (1) the Fair Market
Base Rental (as such term is defined in the Extension Option contained in
Section 38 of this Lease) for the Premises as of the commencement of the
Temporary Extension Term (but such Fair Market Base Rental for the Temporary
Extension Term shall be calculated without regard to any economic concessions or
inducements, including tenant improvement allowances, and Landlord shall not be
obligated to provide any such concessions or inducements to Tenant for such
Temporary Extension Term); or (2) one hundred
39
fifty percent (150%) of the monthly Base Rent applicable during the last rental
period of the initial Term of this Lease.
20. ENCUMBRANCES.
20.1 SUBORDINATION. This Lease is expressly made subject and subordinate
to any mortgage, deed of trust, ground lease, underlying lease or like
encumbrance affecting any part of the Projcect or any interest of Landlord
therein which is now existing or hereafter executed or recorded ("ENCUMBRANCE");
provided, however, that such subordination shall only be effective, as to future
Encumbrances, if the holder of the Encumbrance agrees that this Lease shall
survive the termination of the Encumbrance by lapse of time, foreclosure or
otherwise so long as Tenant is not in default under this Lease. Provided the
conditions of the preceding sentence are satisfied, Tenant shall execute and
deliver to Landlord, within ten (10) days after written request therefor by
Landlord and in a form reasonably requested by Landlord, any additional
documents evidencing the subordination of this Lease with respect to any such
Encumbrance and the nondisturbance agreement of the holder of any such
Encumbrance. If the interest of Landlord in the Project is transferred pursuant
to or in lieu of proceedings for enforcement of any Encumbrance (including,
without limitation, any judicial foreclosure or foreclosure by a power of sale
in a deed of trust), Tenant shall, at the request of the new owner, immediately
attorn to, and become the tenant of, the new owner, and this Lease shall
continue in full force and effect as a direct lease between the transferee and
Tenant on the terms and conditions set forth in this Lease and, at such new
owner's request, shall execute a new lease confirming the lease terms of this
Lease. In furtherance of the foregoing, any such successor to the Landlord shall
not be liable for any offsets, defenses, claims, counterclaims, liabilities or
obligations of the "landlord" under the Lease accruing prior to the date that
such new owner exercises its rights pursuant to the preceding sentence. As of
the date of this Lease Landlord represents to Tenant that there is no loan
secured by the Project.
20.2 MORTGAGEE PROTECTION. Tenant agrees to give any holder of any
Encumbrance covering any part of the Project ("MORTGAGEE"), by registered mail,
a copy of any notice of default served upon Landlord, provided that prior to
such notice Tenant has been notified in writing (by way of notice of assignment
of rents and leases, or otherwise) of the address of such Mortgagee. If Landlord
shall have failed to cure such default within thirty (30) days from the
effective date of such notice of default, then the Mortgagee shall have an
additional thirty (30) days within which to cure such default or if such default
cannot be cured within that time, then such additional time as may be necessary
to cure such default (including the time necessary to foreclose or otherwise
terminate its Encumbrance, if necessary to effect such cure), and this Lease
shall not be terminated so long as such remedies are being diligently pursued.
21. ESTOPPEL CERTIFICATES AND FINANCIAL STATEMENTS.
21.1 ESTOPPEL CERTIFICATES. Within ten (10) days after written request
therefor, Tenant shall execute and deliver to Landlord, in a form provided by or
reasonably satisfactory to Landlord, a certificate stating that this Lease is in
full force and effect, describing any amendments or modifications hereto,
acknowledging that this Lease is subordinate or prior, as the case may be, to
any Encumbrance and stating any other information Landlord may reasonably
request, including the
40
Term, the monthly Base Rent, the date to which Rent has been paid, the amount of
any security deposit or prepaid rent, whether either party hereto is in default
under the terms of the Lease, and whether Landlord has completed its
construction obligations hereunder (if any). Tenant irrevocably constitutes,
appoints and authorizes Landlord as Tenant's special attorney-in-fact for such
purpose to complete, execute and deliver such certificate if Tenant fails timely
to execute and deliver such certificate as provided above. Any person or entity
purchasing, acquiring an interest in or extending financing with respect to the
Project shall be entitled to rely upon any such certificate. If Tenant fails to
deliver such certificate within ten (10) days after Landlord's second written
request therefor, Tenant shall be liable to Landlord for any damages incurred by
Landlord including any profits or other benefits from any financing of the
Project or any interest therein which are lost or made unavailable as a result,
directly or indirectly, of Tenant's failure or refusal to timely execute or
deliver such estoppel certificate.
21.2 FINANCIAL STATEMENTS. Within ten (10) days after written request
therefor, but not more than once a year, Tenant shall deliver to Landlord a copy
of the financial statements (including at least a year end balance sheet and a
statement of profit and loss) of Tenant (and of each guarantor of Tenant's
obligations under this Lease) for each of the three most recently completed
years, prepared in accordance with generally accepted accounting principles
(and, if such is Tenant's normal practice, audited by an independent certified
public accountant), all then available subsequent interim statements, and such
other financial information as may reasonably be requested by Landlord or
required by any Mortgagee; provided, however, that so long as Tenant is a
publicly traded company, the requirements of this Section 21.2 shall be
satisfied by delivery of Tenant's most recent publicly available annual report.
22. NOTICES. Any notice, demand, request, consent or approval that either party
desires or is required to give to the other party under this Lease shall be in
writing and shall be served personally, delivered by messenger or courier
service, or sent by U.S. certified mail, return receipt requested, postage
prepaid, addressed to the other party at the party's address for notices set
forth in the Basic Lease Information. Any notice required pursuant to any Laws
may be incorporated into, given concurrently with or given separately from any
notice required under this Lease. Notices shall be deemed to have been given and
be effective on the earlier of (a) receipt (or refusal of delivery or receipt);
or (b) one (1) day after acceptance by the independent service for delivery, if
sent by independent messenger or courier service, or three (3) days after
mailing if sent by mail in accordance with this Section. Either party may change
its address for notices hereunder, effective fifteen (15) days after notice to
the other party complying with this Section. If Tenant sublets the Premises,
notices from Landlord shall be effective on the subtenant when given to Tenant
pursuant to this Section.
23. ATTORNEYS' FEES. In the event of any dispute between Landlord and Tenant in
any way related to this Lease, and whether involving contract and/or tort
claims, the non-prevailing party shall pay to the prevailing party all
reasonable attorneys' fees and costs and expenses of any type, without
restriction by statute, court rule or otherwise, incurred by the prevailing
party in connection with any action or proceeding (including any appeal and the
enforcement of any judgment or award), whether or not the dispute is litigated
or prosecuted to final judgment (collectively, "FEES"). The "prevailing party"
shall be determined based upon an assessment of
41
which party's major arguments or positions taken in the action or proceeding
could fairly be said to have prevailed (whether by compromise, settlement,
abandonment by the other party of its claim or defense, final decision, after
any appeals, or otherwise) over the other party's major arguments or positions
on major disputed issues. Any Fees incurred in enforcing a judgment shall be
recoverable separately from any other amount included in the judgment and shall
survive and not be merged in the judgment. The Fees shall be deemed an "actual
pecuniary loss" within the meaning of Bankruptcy Code Section 365(b)(1)(B), and
notwithstanding the foregoing, all Fees incurred by either party in any
bankruptcy case filed by or against the other party, from and after the order
for relief until this Lease is rejected or assumed in such bankruptcy case, will
be "obligations of the debtor" as that phrase is used in Bankruptcy Code Section
365(d)(3).
24. QUIET POSSESSION. Subject to Tenant's full and timely performance of all of
Tenant's obligations under this Lease and subject to the terms of this Lease,
including Section 20 - ENCUMBRANCES, Tenant shall have the quiet possession of
the Premises throughout the Term as against any persons or entities lawfully
claiming by, through or under Landlord.
25. SECURITY MEASURES. Landlord may, but shall be under no obligation to,
implement security measures for the Project, such as the registration or search
of all persons entering or leaving any Building, requiring identification for
access to the Project, evacuation of any Building or Buildings for cause,
suspected cause, or for drill purposes, the issuance of magnetic pass cards or
keys for access to a Building or access to an elevator and other actions that
Landlord deems necessary or appropriate to prevent any threat of property loss
or damage, bodily injury or business interruption; provided, however, that such
measures shall be implemented in a way as not to inconvenience tenants of the
applicable Building unreasonably and provided further, during such time that
Tenant is the only tenant in the Project, such measures shall be subject to
Tenant's prior approval, which approval shall not be unreasonably withheld. If
Landlord uses an access card system, Landlord may require Tenant to pay Landlord
for each after-hours Building access card issued to Tenant in excess of the
initial free access cards, in the amount specified in the Basic Lease
Information. Tenant shall be responsible for any loss, theft or breakage of any
such cards, which must be returned by Tenant to Landlord upon expiration or
earlier termination of the Lease. Landlord may retain the deposit for any card
not so returned. Landlord shall at all times have the right to change, alter or
reduce any such security services or measures. Tenant shall cooperate and comply
with, and cause Tenant's Representatives and Visitors to cooperate and comply
with, such security measures. Landlord, its agents and employees shall have no
liability to Tenant or its Representatives or Visitors for the implementation or
exercise of, or the failure to implement or exercise, any such security measures
or for any resulting disturbance of Tenant's use or enjoyment of the Premises.
26. FORCE MAJEURE. If Landlord is delayed, interrupted or prevented from
performing any of its obligations under this Lease, including its obligations
under the Construction Rider (if any), and such delay, interruption or
prevention is due to fire, act of God, governmental act or failure to act, labor
dispute, unavailability of materials or any cause outside the reasonable control
of Landlord, then the time for performance of the affected obligations of
Landlord shall be extended for a period equivalent to the period of such delay,
interruption or prevention.
42
27. RULES AND REGULATIONS. Tenant shall be bound by and shall comply with the
rules and regulations attached to and made a part of this Lease as EXHIBIT C to
the extent those rules and regulations are not in conflict with the terms of
this Lease, as well as any reasonable rules and regulations hereafter adopted by
Landlord for all tenants of a Building, upon notice to Tenant thereof
(collectively, the "BUILDING RULES"). Landlord shall not be responsible to
Tenant or to any other person for any violation of, or failure to observe, the
Building Rules by any other tenant or other person.
28. LANDLORD'S LIABILITY. The term "Landlord," as used in this Lease, shall
mean only the owner or owners of the particular Building at the time in
question. In the event of any conveyance of title to such Building, then from
and after the date of such conveyance, the transferor Landlord shall be relieved
of all liability with respect to Landlord's obligations to be performed under
this Lease after the date of such conveyance. Notwithstanding any other term or
provision of this Lease, the liability of Landlord for its obligations under
this Lease is limited solely to Landlord's interest in the Building or Buildings
which are contained in the Premises, as the same may from time to time be
encumbered, and no personal liability shall at any time be asserted or
enforceable against any other assets of Landlord or against Landlord's partners
or members or its or their respective partners, shareholders, members,
directors, officers or managers on account of any of Landlord's obligations or
actions under this Lease.
29. CONSENTS AND APPROVALS.
29.1 DETERMINATION IN GOOD FAITH. Wherever the consent, approval, judgment
or determination of Landlord is required or permitted under this Lease, Landlord
may exercise its good faith business judgment in granting or withholding such
consent or approval or in making such judgment or determination without
reference to any extrinsic standard of reasonableness, unless the specific
provision contained in this Lease providing for such consent, approval, judgment
or determination specifies that Landlord's consent or approval is not to be
unreasonably withheld, or that such judgment or determination is to be
reasonable, or otherwise specifies the standards under which Landlord may
withhold its consent. If it is determined that Landlord failed to give its
consent where it was required to do so under this Lease, Tenant shall be
entitled to injunctive relief but shall not to be entitled to monetary damages
or to terminate this Lease for such failure.
29.2 NO LIABILITY IMPOSED ON LANDLORD. The review and/or approval by
Landlord of any item or matter to be reviewed or approved by Landlord under the
terms of this Lease or any Exhibits or Addenda hereto shall not impose upon
Landlord any liability for the accuracy or sufficiency of any such item or
matter or the quality or suitability of such item for its intended use. Any such
review or approval is for the sole purpose of protecting Landlord's interest in
the Project, and no third parties, including Tenant or the Representatives and
Visitors of Tenant or any person or entity claiming by, through or under Tenant,
shall have any rights as a consequence thereof.
30. WAIVER OF RIGHT TO JURY TRIAL. Landlord and Tenant waive their respective
rights to trial by jury of any contract or tort claim, counterclaim,
cross-complaint, or cause of action in any action, proceeding, or hearing
brought by either party against the other on any matter arising out of or in any
43
way connected with this Lease, the relationship of Landlord and Tenant, or
Tenant's use or occupancy of the Premises, including any claim of injury or
damage or the enforcement of any remedy under any current or future law,
statute, regulation, code, or ordinance.
31. BROKERS. Landlord shall pay the fee or commission of the broker or brokers
identified in the Basic Lease Information (the "BROKER") in accordance with the
provisions contained in Exhibit I attached hereto. Tenant warrants and
represents to Landlord that in the negotiating or making of this Lease neither
Tenant nor anyone acting on Tenant's behalf has dealt with any broker or finder
who might be entitled to a fee or commission for this Lease other than the
Broker. Tenant shall indemnify and hold Landlord harmless from any claim or
claims, including costs, expenses and attorney's fees incurred by Landlord
asserted by any other broker or finder for a fee or commission based upon any
dealings with or statements made by Tenant or Tenant's Representatives.
32. RELOCATION OF PREMISES. [Intentionally Deleted].
33. ENTIRE AGREEMENT. This Lease, including the Exhibits and any Addenda
attached hereto, and the documents referred to herein, if any, constitute the
entire agreement between Landlord and Tenant with respect to the leasing of
space by Tenant in the Project, and supersede all prior or contemporaneous
agreements, understandings, proposals and other representations by or between
Landlord and Tenant, whether written or oral, all of which are merged herein.
Neither Landlord nor Landlord's agents have made any representations or
warranties with respect to the Premises, any Building, the Project or this Lease
except as expressly set forth herein, and no rights, easements or licenses shall
be acquired by Tenant by implication or otherwise unless expressly set forth
herein. The submission of this Lease for examination does not constitute an
option for the Premises and this Lease shall become effective as a binding
agreement only upon execution and delivery thereof by Landlord to Tenant.
34. MISCELLANEOUS. This Lease may not be amended or modified except by a writing
signed by Landlord and Tenant. Subject to Section 14 - ASSIGNMENT AND SUBLETTING
and Section 28 - LANDLORD'S LIABILITY, this Lease shall be binding on and shall
inure to the benefit of the parties and their respective successors, assigns and
legal representatives. The determination that any provisions hereof may be void,
invalid, illegal or unenforceable shall not impair any other provisions hereof
and all such other provisions of this Lease shall remain in full force and
effect. The unenforceability, invalidity or illegality of any provision of this
Lease under particular circumstances shall not render unenforceable, invalid or
illegal other provisions of this Lease, or the same provisions under other
circumstances. This Lease shall be construed and interpreted in accordance with
the laws (excluding conflict of laws principles) of the State in which the
Project is located. The provisions of this Lease shall be construed in
accordance with the fair meaning of the language used and shall not be strictly
construed against either party, even if such party drafted the provision in
question. When required by the context of this Lease, the singular includes the
plural. Wherever the term "including" is used in this Lease, it shall be
interpreted as meaning "including, but not limited to" the matter or matters
thereafter enumerated. The captions contained in this Lease are for purposes of
convenience only and are not to be used to interpret or construe this Lease. If
more than one person or entity is identified as Tenant hereunder, the
obligations of each and all of them under this Lease shall be joint and several.
Time is of the essence with respect to
44
this Lease, except as to the conditions relating to the delivery of possession
of the Premises to Tenant. Neither Landlord nor Tenant shall record this Lease.
35. AUTHORITY. If Tenant is a corporation, partnership, limited liability
company or other form of business entity, each of the persons executing this
Lease on behalf of Tenant warrants and represents that Tenant is a duly
organized and validly existing entity, that Tenant has full right and authority
to enter into this Lease and that the persons signing on behalf of Tenant are
authorized to do so and have the power to bind Tenant to this Lease. Tenant
shall provide Landlord upon request with evidence reasonably satisfactory to
Landlord confirming the foregoing representations.
IN WITNESS WHEREOF, Landlord and Tenant have entered into this Lease as of
the date first above written.
TENANT:
INKTOMI CORPORATION,
a Delaware corporation
By:
-------------
Name:
-------------
Title:
-------------
By:
-------------
Name:
-------------
Title:
-------------
LANDLORD:
PARKSIDE TOWERS CO-TENANCY, a tenancy in common:
5990 ▇▇▇▇▇▇▇▇▇ ASSOCIATES, L.P., GATEWAY PHOENIX ASSOCIATES, L.P.,
a California limited partnership a California limited partnership
By: Cornerstone Holdings, LLC By: Cornerstone Holdings, LLC,
a Delaware limited liability company a Delaware limited liability company
General Partner General Partner
By: _____________________ By: ___________________
Name: ___________________ Name: ___________________
Title:Authorized Signatory Title:Authorized Signatory
(CO-OWNER) (CO-OWNER)
45
(For corporate entities, signature by TWO corporate officers is required: one by
(x) the chairman of the board, the president, or any vice president; AND the
other by (y) the secretary, any assistant secretary, the chief financial
officer, or any assistant treasurer.)
46
EXHIBIT A
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF MARCH 10, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD,
AND
INKTOMI CORPORATION, AS TENANT ("LEASE")
THE PREMISES
[FLOOR PLAN SHOWING LOCATION
AND CONFIGURATION OF PREMISES
TO BE INSERTED.]
INITIALS:
Landlord ______
Tenant ______
Exhibit A, Page 1
EXHIBIT B
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF MARCH 10, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD,
AND
INKTOMI CORPORATION, AS TENANT ("LEASE")
CONSTRUCTION RIDER
1. COMPLETION OF BUILDINGS. Landlord shall proceed with reasonable
diligence to construct and complete the Buildings and other facilities in the
Project. Landlord shall be responsible for the completion, at its expense, in
accordance with the building permit issued therefor, of the work described as
"Base Building Work" in Schedule 1 attached to this Construction Rider ("Base
Building Work"). The construction plans for the Base Building Work are herein
called the "Base Building Plans." To the extent any work is not described in
such Schedule 1, but is shown on the Base Building Plans, such work shall be
included in Base Building Work. The Base Building Plans have been prepared by
▇▇▇▇▇▇▇▇, ▇▇▇▇▇ and ▇▇▇▇▇▇▇▇ ("Building Architect"). The Building Architect has
submitted the Base Building Plans to the City of Foster City, California (the
"City") for design approval. The City has approved the design of the Base
Building Plans. Tenant has reviewed the Base Building Plans and has approved the
Base Building Plans. The index of Base Building Plans is attached to this Lease
as Exhibit H. Landlord agrees that any additional material changes to the design
of the Base Building Plans will be subject to Tenant's approval, which approval
shall not be unreasonably withheld, provided that any such changes do not
materially adversely (a) affect the design, use, or operation of the Premises or
Tenant Improvements, (b) increase the operating costs thereof, or (c) delay
Substantial Completion of the Tenant Improvements. Provided that this Lease is
fully executed by March 8, 2000, Landlord anticipates that Landlord can commence
construction of the Base Building Work on or about March 24, 2000.
The Base Building Work for a Building shall be deemed to be "Substantially
Complete" when (a) the applicable Building shell, the applicable Building lobby,
the entrances, stairways and access ways for access to the Premises, and the
Base Building Work on the floor or floors on which the Premises are located have
been completed except for finishing details, minor omissions, decorations and
mechanical adjustments of the type normally found on an architectural "punch
list"; (b) all utilities systems serving the Premises, Building life safety
support systems, including fire sprinklers and safety auditory systems, all
heating, ventilating and air conditioning systems serving the Premises, except
to the extent such items may be included in Tenant's "Tenant Improvements," as
defined below, and Building elevators for such Building have been installed and
are operating; (c) the applicable Building is in such a state of completion
that, upon completion of the Tenant Improvements, the requirements necessary to
obtain
Exhibit B, Page 1
approval for the Premises from applicable governmental authorities (including
approval from the Building Department and Fire Department of the City of ▇▇▇▇▇▇
City for Tenant to occupy the Premises) have been satisfied; (d) subject to
minor finishing which does not materially affect its usability, the Parking
Facility serving the Buildings is sufficiently complete to be usable by Tenant's
employees and customers and; and (e) the construction of all other items
described in the approved final Base Building Plans has been completed.
Landlord's sole obligation with respect to Base Building Work shall be to
perform the work specifically described above and/or described in Schedule 1
attached to this Construction Rider; and all other work required or desired by
Tenant shall be part of Tenant Improvements.
2. TENANT IMPROVEMENTS. Landlord shall with reasonable diligence construct
and install in the Premises the improvements and fixtures provided for in this
Construction Rider ("Tenant Improvements") using WCP Services, Inc. dba
Commercial Interior Contractors ("CIC"). Tenant recognizes and agrees that CIC
is an affiliate of Landlord. Improvements consisting of the type and amount of
work and materials described on Schedule 2 attached to this Construction Rider
are referred to herein as "Building Standard Tenant Improvements". Subject to
Landlord's prior written approval, which approval shall not be unreasonably
withheld so long as the marketability of the Premises is not adversely affected,
Tenant shall have the right, in showing the Tenant Improvements on the Working
Drawings and Specifications (as hereinafter defined), to substitute improvements
for the Building Standard Improvements. All Tenant Improvements in addition to
or modification of the Building Standard Tenant Improvements are referred to
herein as "Above-Standard Tenant Improvements".
Tenant agrees that in order to complete the Tenant Improvements in time for
the Scheduled Rent Commencement Date, CIC will commence construction of Tenant
Improvements before the Base Building Work has been Substantially Completed,
provided that CIC shall not be required to commence construction of Tenant
Improvements until the Base Building Work is sufficiently completed to the
extent that it is practicable for CIC to commence construction of Tenant
Improvements without additional cost or delay. Tenant agrees that the contractor
constructing the Base Building Work ("Landlord's Contractor") and CIC will be
performing some work simultaneously in the Premises and that CIC will be asked
to coordinate work with Landlord's Contractor, and may need to schedule a
portion of the work to meet the schedule of Landlord's Contractor. However, the
cost of Tenant Improvements shall not include any added expense attributable to
such coordination of work.
2.1. PLANS. On or before March 31, 2000 Tenant will select and retain a
licensed architect ("Space Planner") to provide interior space planning,
programming, construction documentation, obtaining a building permit and all
other approvals from applicable governmental authorities for the construction of
Tenant Improvements, and construction administration services. The Space Planner
is subject to Landlord's approval, which approval shall not be unreasonably
withheld. Upon Tenant's selection of the Space Planner, Tenant shall submit to
Landlord the name of the Space Planner for Landlord's approval. Within five (5)
Business Days after Landlord is notified of the name of the Space Planner,
Landlord shall either approve the Space Planner, or notify Tenant of Landlord's
disapproval of such Space Planner. Landlord hereby approves either Interior
Architects or Dollar Grumman as the Space Planner.
Exhibit B, Page 2
Tenant shall cause the Space Planner to prepare a conceptual space plan ("Space
Plan") for the Premises utilizing Building Standard Tenant Improvements. Tenant
shall devote such consultation time with Landlord and the Space Planner, and
shall furnish the Space Planner such information, as may be necessary to
finalize the Space Plan, including but not limited to:
(a) Any requirements of Tenant for Above-Standard Tenant Improvements.
(b) Special loading and floor requirements, such as the location of
cabinets, safes, file systems or special equipment.
(c) Openings in the walls or floors.
(d) Special electrical, HVAC, plumbing work, fire suppression systems, or
UPS/PDU systems.
(e) Location and type of partitions, including doors and hardware.
(f) Special cabinet work or other millwork or millwork-related items.
(g) Variations from standard ceiling heights.
(h) any areas for uses other than standard office use.
(i) Selection of floor coverings and any special wall or interior window
coverings; provided, however, that Building Standard window coverings
shall be used on all exterior windows.
(j) Elevator Lobby finishes on all floors above the ground floor.
Tenant shall cause the Space Planner to deliver Tenant's Space Plan to
Landlord on or before June 30, 2000. Within ten (10) Business Days after receipt
of Tenant's Space Plan, Landlord shall either (i) approve Tenant's Space Plan,
which approval shall not be unreasonably withheld, or (ii) notify Tenant in
writing of specific requests for changes and corrections as may be necessary to
ensure compatibility with the Base Building Plans and the Building Standard
Tenant Improvements and to receive approval from Landlord. If Landlord has
requested changes or corrections, Tenant shall revise the proposed Space Plan
accordingly and deliver Tenant's revised Space Plan to Landlord within five (5)
Business Days after receipt of Landlord's request. Within three (3) Business
Days after receipt of Tenant's revised Space Plan, Landlord shall either approve
the revised Space Plan or specify needed changes or corrections as described
above (and the process shall continue as needed to obtain Landlord's approval);
provided, however, Tenant shall make such changes as requested by Landlord, as
provided above, and use commercially reasonable efforts to cause the Space Plan
to be approved by Landlord on or before July 31, 2000.
Exhibit B, Page 3
Within sixty (60) days after Landlord's approval of the final Space Plan,
Tenant shall cause the Space Planner to prepare and deliver to Landlord detailed
plans and specifications ("Working Drawings and Specifications") in conformance
with the Space Plan approved by Landlord and in form and substance sufficient to
satisfy all applicable requirements for issuance of all requisite governmental
approvals and permits and sufficient to permit CIC to begin construction of
Tenant Improvements. Within ten (10) Business Days after receipt of the Working
Drawings and Specifications, Landlord shall either (i) approve the Working
Drawings and Specifications, which approval shall not be unreasonably withheld,
or (ii) notify Tenant in writing of the changes or corrections needed to ensure
compatibility with the Base Building and the Building Standard Tenant
Improvements and to receive approval from Landlord. If Landlord has requested
changes or corrections, Tenant shall cause the Space Planner to revise the
Working Drawings and Specifications accordingly and deliver Tenant's revised
Working Drawings and Specifications to Landlord within five (5) Business Days
after receipt of Landlord's request. Within five (5) Business Days after receipt
of Tenant's revised Working Drawings and Specifications, Landlord shall either
approve the revised Working Drawings and Specifications or specify needed
changes or corrections as described above (and the process shall continue as
needed to obtain Landlord's approval); provided, however, Tenant shall make such
changes as requested by Landlord, as provided above, to cause the Working
Drawings and Specifications to be approved by Landlord on or before November 30,
2000, so that Tenant can immediately thereafter cause such Working Drawings and
Specifications to be submitted to the City for an application for a permit. The
revised Working Drawings and Specifications, as approved by Tenant and Landlord,
are hereinafter referred to as the "Final Working Drawings and Specifications".
Tenant's Space Planner shall apply, in time to avoid delays in construction
of Tenant Improvements, to (a) the City for a building permit, and (b) any other
applicable governmental authority having jurisdiction over approval over
construction of Tenant Improvements, to construct the Tenant Improvements in
accordance with the Final Working Drawings and Specifications. CIC will
cooperate with Tenant's Space Planner in the application for the building
permit, and in the administration of the contract.
Upon receipt of the Final Working Drawings and Specifications, CIC will
contact subcontractors to bid on the work contained in the Final Working
Drawings and Specifications using bid packages prepared by Tenant's Space
Planner. CIC will competitively bid subcontracts using three (3) subcontractors
for each trade (except that for each of the following systems Landlord may
select one [1] subcontractor to bid: heating, ventilating and air-conditioning;
electrical; plumbing; and life safety). Tenant may add names to the
subcontractor bid list prior to such subcontracts being put to bid, subject to
the reasonable right of CIC and Landlord to review and reasonably approve
subcontractors based on their qualifications, including quality of work,
creditworthiness, and experience. Tenant shall have the right to review the
subcontractors' written bids. CIC shall construct the Tenant Improvements on an
open book basis, under a guaranteed maximum price contract, with a fee not to
exceed four percent (4%) of the cost of the work, and a charge for general
conditions not to exceed eight percent (8%) of the cost of the work. Other than
the fees and charges payable to CIC in accordance with the immediately
Exhibit B, Page 4
preceding sentence, Landlord shall not be entitled to any separate or additional
fee for supervising construction of the Tenant Improvements.
After CIC has sent to Tenant the bids from all subcontractors for all work
put out to subcontractors for bid, CIC will provide Tenant and Landlord with a
bid for the work shown in the Final Working Drawings and Specifications. Tenant
shall approve or disapprove the bid within five (5) Business Days after receipt;
provided, however, that Tenant may only disapprove such cost estimate if Tenant
delivers to CIC and Landlord, within such five (5) Business Day period, specific
changes proposed by Tenant that are consistent with the Space Plan and do not
constitute changes that would result in any of the circumstances described in
items (i) through (iv) in the next succeeding paragraph. The revised cost
estimate, as approved by Tenant and Landlord, is hereinafter referred to as the
"Final Cost Estimate".
Once the Final Working Drawings and Specifications have been approved by
Landlord and Tenant, Tenant shall make no changes or modifications thereto
without the prior written consent of Landlord, which consent shall be based upon
the following criteria. Landlord may withhold consent to any change or
modification to the Final Working Drawings and Specifications if (x) in
Landlord's sole discretion such change or modification would result in any of
the circumstances described in items (iii) or (iv) below, or (y) in Landlord's
reasonable discretion such change or modification would result in any of the
circumstances described in items (i) or (ii) below. Any change requested by
Tenant to the Final Working Drawings and Specifications and approved by Landlord
is hereby defined as "Change Order," and collectively called "Change Orders."
The items referenced above are as follows:
(i) directly or indirectly delay having the Premises (or any portion
thereof) Substantially Complete (provided, however, before consenting to
any such changes, Landlord may require Tenant to acknowledge in writing the
number of days of Tenant Delay that Landlord estimates will result from
having such changes made);
(ii) increase the cost of designing or constructing the Tenant Improvements
above the cost of the Tenant Improvements depicted on the Space Plan
(unless within five (5) Business Days after receipt thereof Tenant agrees
in writing to pay any such increase in the cost of designing and
constructing Tenant Improvements);
(iii) be of lower quality than the quality of the Building Standard
Improvements; and/or
(iv) require any changes to the applicable Building's shell or core.
All Change Orders shall be signed by Landlord, Tenant, and CIC.
The Building Architect will measure the Premises based on the Final Working
Drawings and Specifications, and Landlord and Tenant will confirm the exact area
of the Premises, including usable and rentable square footage, in writing prior
to the Rent Commencement Date.
Exhibit B, Page 5
If Tenant fails to either (a) provide the documents required to be provided
by Tenant under this Exhibit B within the applicable time specified herein, or
(b) give its written approval of any of the foregoing items within the time
periods provided above, the same shall constitute Tenant Delay, and Tenant shall
be responsible for all additional costs and delays arising from its failure to
so approve such items, as provided in Paragraph 2.5 below.
2.2. CONSTRUCTION.
(a) Upon approval by Tenant of the Final Working Drawings and
Specifications and the Final Cost Estimate, Landlord shall cause CIC to
construct the Tenant Improvements as provided herein. At least thirty (30) days
prior to the date CIC is to start construction of Tenant Improvements, Landlord
shall cause CIC to deliver to Tenant a construction schedule for the Premises
(the "PREMISES CONSTRUCTION SCHEDULE"), with estimated dates upon which each
floor of the Premises shall be Substantially Completed (as defined below).
(b) The Tenant Improvements shall be deemed to be "Substantially
Completed" when the Tenant Improvements are in such a state of completion that
the requirements necessary to obtain approval for the Premises (or a full floor
thereof) from applicable governmental authorities (including approval from the
Building Department and Fire Department of the City of ▇▇▇▇▇▇ City for Tenant to
occupy the Premises) have been satisfied. (The definition of Substantially
Completed shall also define the terms "Substantial Completion" and
"Substantially Complete."). Landlord and Tenant intend that Tenant will occupy
one or more of the floors in each Building before other floors are Substantially
Complete. In occupying the Premises in phases, a particular floor shall not be
Substantially Complete until the Parking Facility serving that Building is
Substantially Complete, the Building lobby is Substantially Complete, and
services are available to such floor in the Premises to permit Tenant to occupy
such floor (even though there will be noise, dust and construction workers in
the Building in connection with completing other portions of the Premises and
the Building). After Tenant occupies one or more floors in the Premises,
Landlord shall use due diligence to cause CIC to Substantially Complete the
remaining floors in the Premises. If, following the date Landlord delivers to
Tenant possession of any floor in the Premises in accordance with the above
provisions in this paragraph, any other floor in the Premises is not delivered
at or before the time contained in the Premises Construction Schedule (other
than for reasons of force majeure and/or Tenant Delay), then Tenant shall
receive one (1) day of free Base Rent for such floor, for each day that Landlord
delivers such floor to Tenant (Substantially Completed) after the date in the
Premises Construction Schedule upon which such floor is scheduled to be
delivered. Late delivery shall be determined independently for each floor, and
any free Base Rent for such floor shall be calculated independently from any
free Base Rent for any other floor in the Premises.
(c) Tenant may have access to that floor of the Premises which is to
be Substantially Complete, thirty (30) days prior to the estimated date for
Substantial Completion with respect to such floor (or at such other times as may
be agreed by Landlord and Tenant) for the purposes of installation of Tenant's
computers, cabling, telephone and other equipment; provided, however, that (i)
such access shall not unreasonably interfere with the contractor constructing
the Base Building Work, or CIC's cost and timing related to the Substantial
Exhibit B, Page 6
Completion of the Tenant Improvements, and (ii) prior to such entry of the
Premises, Tenant shall provide evidence reasonably satisfactory to Landlord that
insurance, as described in Section 11.1 - "Tenant's Insurance" of the Lease,
including insurance for any contractor, mover, installer, technician or repair
person of Tenant's, naming Landlord, its partners, the Property Manager, CIC,
and such other parties in interest as Landlord may from time to time reasonably
designate to Tenant in writing, as additional insureds, shall be in effect as of
the time of such entry.
(d) Upon Substantial Completion of the Tenant Improvements for any
particular floor in the Premises, but prior to the date Tenant begins either to
move into such floor of the Premises or to move any furniture, Trade Fixtures or
other property into such floor of the Premises, Landlord, CIC and Tenant shall
inspect the Premises and jointly prepare a "punch list" of agreed items of
construction remaining to be completed. CIC shall complete the items set forth
in the punch list as soon as reasonably possible. Tenant shall cooperate with
and accommodate CIC in completing the items on the punch list. The preparation
of such a "punch list" and execution of an acceptance agreement shall not,
however, be deemed an acceptance of the Premises free from latent defects.
Landlord shall correct any latent defects in the Base Building and in the
Premises of which Tenant notifies Landlord in writing within one (1) year after
the Rent Commencement Date. All construction, product and equipment warranties
and guarantees obtained by Landlord shall, to the extent obtainable, provide
that such warranties and guarantees shall also run to the benefit of Tenant, and
its successors and assigns. Tenant shall have the benefit of any construction,
product and equipment warranties and guarantees in favor of Landlord that would
assist Tenant in correcting defects and in discharging Tenant's obligations
under the Lease regarding repair and maintenance of the Premises. Upon written
request of Tenant, Landlord shall inform Tenant of all written construction,
product and equipment warranties and guarantees in favor of Landlord which
affect the Premises.
(e) Any alterations or improvements to the Premises desired by Tenant other
than the Tenant Improvements shall be made after the commencement of the term of
the Lease and shall be subject to the provisions of Section 6 - "Alterations" of
the Lease.
(f) [Intentionally deleted].
(g) Notwithstanding any provision in the Lease or in this Construction
Rider to the contrary, if the Rent Commencement Date has not occurred or been
deemed to have occurred by October 1, 2002, either party, by written notice to
the other party given within ten (10) Business Days after October 1, 2002 (as
such date may be extended in accordance with the provisions contained below in
this subsection (g)) , may terminate this Lease without any liability to the
other party; provided, however, that if the delay in the Rent Commencement Date
is caused by delays of the type described in Section 26 - FORCE MAJEURE of the
Lease, and if Tenant elects to terminate as provided above, then Tenant shall
reimburse Landlord, within thirty (30) days after receipt of notification from
Landlord of the amounts due, for any amounts expended or incurred by Landlord
for the design, construction and installation of the Tenant Improvements and for
brokerage commissions and legal fees in connection with the preparation and
negotiation of the Lease; and provided further, if either Landlord or Tenant
causes the October 1, 2002 date to be delayed, then with respect to each, or
both, of such parties, the October 1, 2002 termination
Exhibit B, Page 7
date shall extended day for day for each day that such party causes the October
1, 2002 termination date to be delayed (which extension may be applicable to
both parties, for different periods of time).
2.3. COST OF TENANT IMPROVEMENTS. Landlord shall contribute (a) $30.00 per
rentable square foot in the West Office Building, (b) $10.00 per rentable square
foot in the East Office Building, and (c) $10.00 per rentable square foot in the
First Level Office Space (collectively, the "ALLOWANCE") toward the cost of the
design (including preparation of space plans and Construction Documents),
construction and installation of the Tenant Improvements; provided, however,
such Allowance shall be disbursed by Landlord (at $30.00 per rentable square
foot in the West Office Building; $10.00 per rentable square foot in the East
Office Building; and $10.00 per rentable square foot in the First Level Space )
only for Tenant Improvements which are actually constructed in the Premises, at
the time such Tenant Improvements are constructed. Notwithstanding any provision
contained herein, Landlord shall not be obligated to contribute, whether out of
the Allowance, or otherwise, more than $2.00 per rentable square foot in the
Premises towards the cost of design (including preparation of space plans and
Construction Documents) of the Tenant Improvements. The balance, if any, of the
cost of the Tenant Improvements ("ADDITIONAL COST"), including, but not limited
to, usual markups for overhead, supervision and profit, shall be paid by Tenant.
At least ten (10) Business Days prior to the date CIC starts construction of the
Tenant Improvements, Tenant shall pay to Landlord twenty-five percent (25%) of
the Additional Cost based upon the Final Cost Estimate. Within ten (10) Business
Days following receipt of a monthly invoice from CIC, Tenant shall pay to
Landlord a proportionate share of each progress payment due to CIC which bears
the same relationship to the total amount of the progress payment in question as
the Additional Cost (before any Change Order) bears to the total cost of
constructing Tenant Improvements. Any Change Orders shall not be included in the
determination Tenant's proportionate share of progress payments. Tenant shall
pay to Landlord the cost of Change Orders within thirty (30) days following
receipt of a monthly invoice from CIC. Tenant shall pay any balance of the
actual Additional Cost within thirty (30) days after Substantial Completion of
the Tenant Improvements.
Notwithstanding anything to the contrary contained in this Exhibit B, in no
event shall the costs of Tenant Improvements include, nor shall any portion of
the Allowance be used for: (i) wages, labor and overhead for overtime and
premium time (unless approved in advance by Tenant, in Tenant's sole
discretion), (ii) costs resulting from any breach of contract by CIC or any of
its subcontractors or by the Building Architect or Tenant's Space Planner or any
construction defects, (iii) any management fee or general overhead costs charged
by Landlord for supervision of the construction of the Tenant Improvements, (iv)
bond premiums, (v) costs for which Landlord is reimbursed by others (including
insurers and warranters), (vi) any costs related to removal or remediation of
Hazardous Materials, (vii) costs resulting from a fire or other casualty, (viii)
costs relating to the design and construction in the Building Shell and the
correction of any defects in the Building Shell, or (viii) costs resulting from
the negligence or willful misconduct of Landlord, or of any of Landlord's
agents, employees or contractors or Landlord's breach of the Lease.
Exhibit B, Page 8
2.4. CHANGES. If Tenant requests any change, addition or alteration in or
to any Final Construction Documents ("CHANGES") Tenant shall cause the Space
Planner to prepare additional Plans implementing such Change. Tenant shall pay
the cost of preparing additional Plans. As soon as practicable after the
completion of such additional Construction Documents, Tenant shall deliver to
Landlord and to CIC a copy of the Changes, and Tenant shall request CIC to
provide the estimated cost of the Changes. Within three (3) Business Days after
receipt of such cost estimate, Tenant shall notify CIC and Landlord in writing
whether Tenant approves the Change. If Tenant approves the Change, CIC shall
proceed with the Change and Tenant shall be liable for any Additional Cost
resulting from the Change. If Tenant fails to approve the Change within such
three (3) Business Day period, construction of the Tenant Improvements shall
proceed as provided in accordance with the original Construction Documents.
2.5. DELAYS. Tenant shall be responsible for, and shall pay to Landlord,
any and all costs and expenses incurred by Landlord in connection with any delay
in the commencement or completion of any Tenant Improvements and any increase in
the cost of Tenant Improvements caused by (i) Tenant's failure to submit
information from the Space Planner or provide any Space Plan, or Working
Drawings and Specifications or approve any Construction Documents or cost
estimates within the time periods required herein, (ii) any delays in obtaining
any items or materials constituting part of the Tenant Improvements requested by
Tenant, provided that Tenant has received prior written notice from Landlord of
the amount of delay in obtaining such items or materials, (iii) any Changes,
provided that Tenant has received prior written notice from Landlord of the
amount of delay associated with such Changes, (iv) any delay in obtaining the
building permit for the Tenant Improvements in time to allow CIC to commence
construction of Tenant Improvement within the schedule provided by CIC, unless
due to acts or omissions of Landlord or CIC, (v) additional time for
construction of Tenant Improvements resulting from Above-Standard Tenant
Improvements provided that Tenant has received prior written notice from
Landlord of the amount of delay resulting from Above-Standard Tenant
Improvements, (vi) delays caused by Tenant's late payments for Above-Standard
Tenant Improvements and Additional Costs, or (vi) any other delay requested or
caused by Tenant (collectively, "TENANT DELAYS"). Notwithstanding the foregoing,
Tenant Delays shall be used only to the extent of any actual impact upon
Substantial Completion of Tenant Improvements.
3. DELIVERY OF PREMISES. Upon Substantial Completion of the Tenant
Improvements in each floor of the Premises, Landlord shall deliver possession of
such floor in the Premises to Tenant. If Landlord has not tendered possession of
the entire Premises to Tenant on or before the Scheduled Final Rent Commencement
Date specified in Section 2 -"Term; Possession" of the Lease, or if Landlord is
unable for any other reason to deliver possession of the Premises to Tenant on
or before such date, neither Landlord nor its representatives shall be liable to
Tenant for any damage resulting from the delay in completing such construction
obligations and/or delivering possession to Tenant and the Lease shall remain in
full force and effect unless and until it is terminated under the express
provisions of Paragraph 2.2 of this Exhibit B.
4. RISK OF LOSS. Landlord shall bear the risk of loss to Tenant
Improvements prior to the Final Rent Commencement Date. At all times prior to
the Final Rent Commencement Date
Exhibit B, Page 9
Landlord shall maintain broad form "builder's risk" insurance with coverage in
an amount equal to the replacement cost of the Tenant Improvements. If (a) the
Tenant Improvements and/or a Building is damaged due to fire or other casualty
prior to the Final Rent Commencement Date, and (b) in the reasonable opinion of
the Building Architect the Tenant Improvements and such Building cannot be
Substantially Completed by November 1, 2002, then Landlord and Tenant shall each
have the right to terminate this Lease with respect to such Building by written
notice to Landlord within twenty (20) days after Tenant receives written notice
from the Building Architect of the time to complete the Tenant Improvements and
the Building. If Landlord or Tenant terminates this Lease pursuant to the
provisions of this paragraph, then Tenant shall be entitled to receive from the
builder's risk insurance proceeds an amount equal to the costs paid by Tenant
prior to the date of the fire or other casualty for construction of Tenant
Improvements, and Landlord shall return to Tenant all prepaid rent and Security
Deposit.
5. OWNERSHIP OF TENANT IMPROVEMENTS. All Tenant Improvements, whether
installed by Landlord or Tenant, shall become a part of the Premises, shall be
the property of Landlord and, subject to the provisions of the Lease, shall be
surrendered by Tenant with the Premises, without any compensation to Tenant, at
the expiration or termination of the Lease in accordance with the provisions of
the Lease.
INITIALS:
Landlord ______
Tenant ______
Exhibit B, Page 10
SCHEDULE 1 TO EXHIBIT B
PARKSIDE TOWERS
BASE BUILDING WORK
SERVICE CORE
Stairways in compliance with Building code (including fire stairs).
One each telephone and electrical room on each floor of the Premises,
with a vertical chase between floors.
Finished men's and women's restrooms on each floor of the Premises;
compliant with all applicable laws and codes and finished with:
Ceramic tile or another finish of comparable quality on floors in the
toilet area and ceramic tile on wet wall at least to the height of the
toilet partitions with washable vinyl wallcovering or washable paint
on all other walls; carpet in vestibule area
Metal toilet partitions and urinal screens with a baked enamel finish
Stainless steel accessories shall be provided per code and include
double roll toilet paper holders, recessed paper towel
dispensers/receptacles, liquid soap dispensers, sanitary napkin
dispensers and disposals
Counters of stone or a solid surface material like Corian
Other restroom walls and ceilings finished
Vanities, accessories, fixtures, lighting and all mechanical and
plumbing services completed
General exhaust system for restrooms installed
Sufficient lighting for washrooms
One janitor's closet with sink, on each floor of the Premises.
Access at the core or other convenient and accessible location to domestic
water, drainage and vent systems with valve taps for water and capped stubs
for vent and waste.
Schedule 1 to Exhibit B, Page 1
CORE DOORS
Paint grade or stain grade core doors finished and complete with metal
frame trim and hardware locking devices, electric door releases where
applicable and magnetic hold open devices where applicable, for
stairwells, electrical, mechanical, janitorial and telephone rooms and
washrooms all installed, primed, sanded, dusted, and ready for paint
or other Tenant finish.
WALLS AND WINDOWS
Exterior wall system of stone and panelized reinforced concrete
installed, sealed and watertight.
Exterior windows installed, sealed and watertight.
Insulation where required by Title 24 regulations.
Levels 1 through 3: Walls to be concrete or clad with properly rated
sheetrock, taped, sanded and painted.
Levels 4 through 8: Core walls and elevator lobby walls installed,
clad with properly rated sheetrock, taped, sanded, patched, and ready
to receive paint or other Tenant finish. No walls will be installed on
tenant-side of braced structural frames.
OFFICE FLOORS
Designed for a minimum live load of 80 lbs. per square foot and an
additional partition load of 20 lbs. per square foot for a total of
100 lbs. per square foot.
Smooth and level concrete floors with troweled finish, ready to
receive carpeting, tile, marble or wood without additional Tenant
preparation.
HVAC
Main air distribution system including chiller, cooling tower, boiler,
fans, pumps and associated equipment, with two risers servicing each
floor of the Premises. The East Office Building will have 485 tons
chiller capacity with 630 tons cooling tower capacity; and the West
Office Building will have 386 tons chiller capacity with 500 tons
cooling tower capacity. All tenant ducting, including main loops, at
tenant expense.
Schedule 1 to Exhibit B, Page 2
Energy Management System installed and operational.
Piping for supplemental cooling installed from mechanical penthouse on
the roof to the 8th floor of each tower, allowing Tenants to install
as necessary supplemental roof-mounted chilled water cooling units
(such equipment and tie-in are part of the Tenant Improvements, not
the Base Building work).
LIGHTING
Installed and operating in garage levels, main lobbies, all
stairwells, restrooms, elevators, mechanical rooms, utility rooms,
other lighting as required by code. Lighting in the lobby of Tenant's
Premises installed by Tenant.
Exterior lighting installed as required by design and code.
ELECTRICAL/POWER
One electrical panel 277/480 volt, 3 phase/4 wire per floor for
lighting.
A vertical riser and panel boards supplying electric power for the
each tower's mechanical systems.
A 1600 Amp ▇▇▇▇ riser in each building available for tie-in by Tenant
to supply an average of approximately 5.0 ▇▇▇▇▇ per rentable square
foot for general electrical use, including lighting.
LIFE SAFETY
Landlord shall install life safety improvements including life safety
panels and controls to the extent required by shell and core
construction for a temporary certificate of occupancy for the
Premises.
A sprinkler system (sized for office occupancy) installed in
compliance with code for floors, including main loop connected to core
and drops in place with heads installed per code for an unimproved
(non-occupied) floor.
Fire extinguishers as required by code for shell and core
construction.
Schedule 1 to Exhibit B, Page 3
Fire horns and exit signs as required by code for shell and core
construction.
Electric door releases and magnetic hold-open devices, as applicable,
installed for all fire doors and electric door locks or stairwell
doors per code requirements.
A/V devices and exit signs as required by code for shell and core
construction and in compliance with ADA.
COMMUNICATION SYSTEM
Access to main telephone service on the first floor or lower level of
the Premises by approved personnel only.
Sleeves in core telephone rooms for Tenant telephone access. Tenant to
provide backboard and conduit from telephone rooms to Tenant's suite.
Five four-inch inter-tie conduits between telephone rooms of east and
west towers are provided for Tenant communications between the
buildings.
ELEVATORS AND FREIGHT FACILITIES
Three passenger elevators servicing office floors in each tower,
installed and operational as designed to operate at 500 FPM. These
elevators stop at levels 1, 4, 5, 6, 7 and 8. One of these three
passenger elevators to be installed and operational as a freight
elevator (3,500 lbs. capacity), protection pads provided.
Two additional passenger elevators in each tower servicing parking
levels installed and operational as designed to operate at 150 FPM and
stopping at levels 1,2, and 3.
Cabs finished consistent with a first-class suburban office building,
including finished ceilings, walls, floors and lights.
PARKING
Garage construction complete with all equipment operational, spaces
lined and lighting installed.
Schedule 1 to Exhibit B, Page 4
LANDSCAPING AND IRRIGATION
Installed per the Base Building Plans. Includes all water features,
planters, trees, shrubs and ground cover, site lighting fixtures,
outdoor furniture, special paving, screens, and site graphics.
Automatic sprinklers installed per the Base Building Plans.
LOBBY
Lobby finish per the Base Building Plans.
DIRECTORY
Installed with sufficient lines for Tenant's needs as specified in the
Lease.
GENERAL
To the extent there are improvements to the Base Building in excess of
the foregoing, such improvements will remain as part of the Base
Building Work at no cost to Tenant, and shall be in accordance with
the Base Building Plans.
INITIALS:
Landlord ______
Tenant ______
Schedule 1 to Exhibit B, Page 5
SCHEDULE 2 TO EXHIBIT B
PARKSIDE TOWERS
Building Standard FOR Tenant Improvements
MECHANICAL SYSTEMS
o Return air plenum system
o VAV Boxes
o AC Units Split system type, no air to air transfer
o Supply and Return air vents: 2'x 2' Flush mounted in T-bar ceiling
Manufacturer: ▇▇▇▇▇ or equal
Grille: Metal with circular perforation
o Perimeter air supply slots: 2' linear
o Height of 1st floor, slab to slab: 14' - 6"
o Height of the upper floors, slab to slab: 13' - 6"
o 1hr walls and demising walls to be full height.
o Exhaust fans in conference rooms and kitchens are per request.
o T-stats - Powers (manufacturer)
ELECTRICAL & COMMUNICATIONS SYSTEMS
o Phone boards to be provided in each tenant space as required. Wall mounted 4'x
8' x 3/4" fire treated plywood.
o Tele/Data Cabling to be independently supported.
o All panel schedules to be typed.
o Communications wiring to be Teflon coated or "plenum rated" or in conduit.
o Electrical & Communications Outlets may be placed on perimeter building walls
during the initial build out only.
o Electrical & Communications outlets by electrical contractor:
Manufacturer: Leviton or equal
Style: Decora Receptacles 2" x 4" vertical (single) 4" x 4"
side by side (double)
Color: White
Mounting hgt: 16" Standard wall mount 42" for above counter outlets
per Title 24/ADA Standards
LIGHTING
Schedule 2 to Exhibit B, Page 1
o FLUORESCENT LIGHT FIXTURES: 2x 4-(2) lamp recessed fixtures with 18 cell
parabolic lens
Manufacturer: Lithonia or equal
Lens: 18 Cell 3" deep louver with low iridescent specular
silver finish
Lamp: (2) T-8 32 W Electronic Ballasts
o DOWN LIGHTS (when requested)
Manufacturer: Halo Compact Fluorescent Recessed
Lamp: (1) 13W DTT
o WALL WASHERS (when requested)
Manufacturer: Halo Incandescent Recessed
Model: H7T
Trim: 425W White Coilex Wall Wash
Lamp: (1) 75W PAR 30
o Safety Devices
Horn/Strobe Notifier (manufacturer)
Smoke Detectors
o EXIT SIGNS Architectural Edge-Lit
Manufacturer: Lithonia Precise-LED
Model: LRP
Panel color: Green on clear
Mount: Ceiling mount
o LIGHT SWITCHES
Manufacturer: Leviton Decora Rocker Switch or equal
Model: 560-W
Color: White
Mounting Hgt: 44" Max (in rooms w/unified sidelight mount adjacent to
sidelight or on perpendicular wall min. of 3" from edge
of door swing to edge of switch plate)
o DIMMER SWITCHES
Manufacturer: Leviton Decora Slide Dimmer or equal
Model: 6621-W
Color: White
Mounting Hgt: 44" Max.
CEILINGS
TENANT SUITES & CORRIDORS
Schedule 2 to Exhibit B, Page 2
o T-Bar Grid: 2' x 4' Mounted @ +10' - 0"on level 4 and +9' - 0"
levels 5 through 8
Manufacturer: USG or equal
Style: ▇▇▇▇ Fine Line
Color: White
o Tile: 2' x 2'
Style: Cirrus 2' x 2' or USG Millenia
Color: White
WALLS
INTERIOR TENANT WALLS - Ceiling height (10'-0" on ▇▇▇▇▇ ▇, ▇'-▇" ▇▇▇▇▇ ▇▇▇▇▇▇)
o Studs-Metal Studs: 24" O.C.
Size: 2-1/2"
Gauge: 25
o GYP BD: 5/8" Type x
o Paint: ▇▇▇▇▇ ▇▇▇▇▇ or equal
Primer: (1) coat of primer
Paint: (2) finish coats of paint
Sand between coats
ONE HOUR FIRE RESISTIVE WALLS - Full height
Any penetration of a demising wall requires a fire/smoke damper
o For Demising & Acoustical Insulation to be ▇▇▇▇▇ Corning or
Walls equal, Batt type.
o Studs-Metal Studs: 16" O.C.
Size: 2-1/2"
Gauge: 20
o GYP BD: 5/8" Type-X, Smooth finish
o Paint: ▇▇▇▇▇ ▇▇▇▇▇ or equal
Primer: (1) coat of primer
Paint: (2) finish coats of paint
Sand between coats
DOORS & FRAMES
Corridor, Tenant Entry and Interior Doors (including 20 min rated doors)
Schedule 2 to Exhibit B, Page 3
o Frame: 3-3/4" aluminum frame with 1" trim and 3/8" reveal
(unified frame at sidelights)
Manufacturer: Advanced Architectural Frames, A.A.F. or equal
Model: Standard (20 min rating as required)
o Doors: Solid core with wood veneer
Manufacturer: ▇▇▇▇▇▇ Industries or equal
Size: 3'-0" x 9'-0" x 1 3/4" (or as required)
60 and 90 Min Rated Doors (where required by 2 hr area separations, etc.)
o Frame: Hollow metal frame, painted to match the color of
the adjacent wall in semi-gloss finish
Manufacturer: Forderer or equal
Style: Welded hollow metal frame w/2" face frame
o Doors: Solid core with wood veneer 60 or 90 min rating as
required
Manufacturer: ▇▇▇▇▇▇ Industries or equal
Size: 3'-0" x 9'-0" x 13/4" (or as required)
Building entry doors and stairwell doors per base building architects
specifications. Doors required to swing into the corridor shall be installed in
a 36" deep 90(Degree) recess with clearances per code. Provide compact
fluorescent down lights in ceiling of recess.
HARDWARE
o Locksets and latchsets
Manufacturer: Schlage
Series: L-Series Mortise Prep
03A lever or 17A lever
Finish: Polished Chrome
o Tenant entry doors
2 pair butts: Manufacturer: ▇▇▇▇▇ or equal
1 lockset: Schlage L-Series Mortise Prep
1 stop: ▇▇▇▇▇
1 smoke seal: Pemko
1 closer (as needed): LCN or equal.
1 coordinator ▇▇▇▇-▇▇▇▇▇▇▇ Bar Type
INTERIOR GLASS
o TYPE:1/4" Tempered glass, clear
Schedule 2 to Exhibit B, Page 4
o SIDELITES: 24" Wx Door height, to be installed in a unified frame with
door
o No sidelights at one hour corridors
o Where sidelights occur, light switches are to be mounted on adjacent wall
clearing door swing (minimum of 3") or dondsame wall adjacent to sidelight
WINDOW FRAMES
o 3-3/4" Aluminum Trim System - unified frame @ sidelight
Manufacturer: Advanced Architectural Frames or equal
Model: Standard
Profile: 1" trim w/ 3/8" reveal
FLOORING
o Carpet : Manufacturer: Design Weave - New Tempest or
per request. Direct glue-down.
o Glue: To be water based, non-toxic adhesive per
carpet manufacturer's recommendation
o Base @ Carpet: 2 1/2" Rubber Carpet Top set Base
Manufacturer: ▇▇▇▇▇
Style: Carpet Base ("toeless")
o Resilient Flooring: 12x12 Vinyl Composition Tile
o Base @ Resilient flooring: 2 1/2" Rubber Cove Base
Manufacturer: ▇▇▇▇▇
Style: Cove Base
WINDOW COVERING
o 1" aluminum mini-blinds, light beige color, Levelor.
PLUMBING FIXTURES
o Sink: Elkay or equal Stainless Steel
o Faucet: Delta Model #27T3824
o Garbage Disposal: ISE or equal
o Insta Hot: ISE or equal
Schedule 2 to Exhibit B, Page 5
AUTOMATIC FIRE SPRINKLERS
o Semi-recessed type with white escutcheon.
INITIALS:
Landlord ______
Tenant ______
Schedule 2 to Exhibit B, Page 6
EXHIBIT C
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF MARCH 10, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD,
AND
INKTOMI CORPORATION, AS TENANT ("LEASE")
BUILDING RULES
The following Building Rules are additional provisions of the foregoing
Lease to which they are attached. The capitalized terms used herein have the
same meanings as these terms are given in the Lease.
1. USE OF COMMON AREAS. Tenant will not obstruct the sidewalks, common
halls, passages, exits, entrances, elevators or stairways of the Building or the
Project ("COMMON AREAS"), and Tenant will not use the Common Areas for any
purpose other than ingress and egress to and from the Premises. The Common
Areas, except for the sidewalks, are not open to the general public and Landlord
reserves the right to control and prevent access to the Common Areas of any
person whose presence, in Landlord's opinion, would be prejudicial to the
safety, reputation and interests of the Project and its tenants.
2. LIMITED ACCESS TO ROOF. Tenant has no right of access to the roof of the
Building and will not install, repair or replace any antenna, aerial, aerial
wires, fan, air-conditioner or other device on the roof of the Building, without
the prior written consent of Landlord, subject to the provisions contained below
in this Paragraph 2 and Section 40 of this Lease. Any such device installed
without such written consent is subject to removal at Tenant's expense without
notice at any time. In any event Tenant will be liable for any damages or
repairs incurred or required as a result of its installation, use, repair,
maintenance or removal of such devices on the roof and agrees to indemnify and
hold harmless Landlord from any liability, loss, damage, cost or expense,
including reasonable attorneys' fees, arising from any activities of Tenant or
of Tenant's Representatives on the roof of the Building. Notwithstanding the
foregoing, Landlord hereby consents to entry by (a) Tenant's HVAC contractor
onto the roof for service of any supplemental HVAC units installed by Tenant,
and (b) Tenant and its contractors for the performance of any maintenance or
repair which is Tenant's obligation under this Lease and where access to the
roof is reasonably required to perform repair, maintenance, installation and
replacement of the satellite equipment, subject to reasonable rules and
regulations of Landlord, and provided that Tenant and any such contractor shall
be responsible for any damage Tenant or such contractor causes to the roof.
Exhibit C, Page 1
3. SIGNAGE. No sign, placard, picture, name, advertisement or notice
visible from the exterior of the Premises will be inscribed, painted, affixed or
otherwise displayed by Tenant on or in any part of the Building without the
prior written consent of Landlord. Landlord reserves the right to adopt and
furnish Tenant with general guidelines relating to signs in or on the Building.
All approved signage will be inscribed, painted or affixed at Tenant's expense
by a person approved by Landlord, which approval will not be unreasonably
withheld.
4. PROHIBITED USES. The Premises will not be used for manufacturing, for
the storage of merchandise held for sale to the general public from the
Premises, for lodging or for the sale of goods to the general public. Tenant
will not permit any food preparation on the Premises except that Tenant may use
Underwriters' Laboratory approved equipment for brewing coffee, tea, hot
chocolate and similar beverages so long as such use is in accordance with all
applicable federal, state and city laws, codes, ordinances, rules and
regulations. Notwithstanding the foregoing, Tenant may use a UL approved
microwave oven in the Premises to warm foods and beverages for consumption by
Tenant's employees and clients, provided that any such use is strictly
non-commercial, is in accordance with all applicable Laws, and does not generate
any annoying noise, odors or sanitation problems.
5. JANITORIAL SERVICES. Tenant will not employ any person for the purpose
of cleaning the Premises or permit any person to enter the Building for such
purpose other than Landlord's janitorial service, except with Landlord's prior
written consent. Tenant will not necessitate, and will be liable for the cost
of, any undue amount of janitorial labor by reason of Tenant's carelessness in
or indifference to the preservation of good order and cleanliness in the
Premises. Janitorial service will not be furnished to areas in the Premises on
nights when such areas are occupied after 9:30 p.m., unless such service is
extended by written agreement to a later hour in specifically designated areas
of the Premises.
6. KEYS AND LOCKS. Landlord will furnish Tenant, free of charge, two keys
to each door or lock in the Premises. Landlord may make a reasonable charge for
any additional or replacement keys. Tenant will not duplicate any keys, alter
any locks or install any new or additional lock or bolt on any door of its
Premises or on any other part of the Building without the prior written consent
of Landlord and, in any event, Tenant will provide Landlord with a key for any
such lock. On the termination of the Lease, Tenant will deliver to Landlord all
keys to any locks or doors in the Building which have been obtained by Tenant.
7. FREIGHT AND DELIVERIES. Upon not less than twenty-four hours prior
notice to Landlord, which notice may be oral, an elevator will be made available
for Tenant's use for transportation of freight, subject to such scheduling as
Landlord in its discretion deems appropriate. Tenant shall not transport freight
in loads exceeding the weight limitations of such elevator. Landlord reserves
the right to prescribe the weight, size and position of all equipment,
materials, furniture or other property brought into the Building, and no
property will be received in the Building or carried up or down the freight
elevator or stairs except during such hours and along such routes and by such
persons as may be designated by Landlord. Landlord reserves the right to require
that heavy objects will stand on wood strips of such length and thickness as is
necessary to properly distribute the weight. Landlord will not be responsible
for loss of or
Exhibit C, Page 2
damage to any such property from any cause, and Tenant will be liable for all
damage or injuries caused by moving or maintaining such property. Moving vans
and delivery trucks are limited in their use of loading stalls located on the
north side of the Project to the hours of 7:00 am to 10:00 pm on weekdays
(excluding legal holidays); and 9:00 am to 8:00 pm on weekends and legal
holidays. Tenant shall prohibit moving vans and delivery trucks serving Tenant
from using such loading stalls at any other hours. During all other hours,
physical access to such loading stalls shall be prevented by a means established
by Landlord.
8. NUISANCES AND DANGEROUS SUBSTANCES. Tenant will not conduct itself or
permit Tenant's Representatives or Visitors to conduct themselves, in the
Premises or anywhere on or in the Project in a manner which is offensive or
unduly annoying to any other Tenant or Landlord's property managers. Tenant will
not install or operate any phonograph, radio receiver, musical instrument, or
television or other similar device in any part of the Common Areas and shall not
operate any such device installed in the Premises in such manner as to disturb
or annoy other tenants of the Building. Tenant will not use or keep in the
Premises or the Project any kerosene, gasoline or other combustible fluid or
material other than limited quantities thereof reasonably necessary for the
maintenance of office equipment, or, without Landlord's prior written approval,
use any method of heating or air conditioning other than that supplied by
Landlord. Tenant will not use or keep any foul or noxious gas or substance in
the Premises or permit or suffer the Premises to be occupied or used in a manner
offensive or objectionable to Landlord or other occupants of the Building by
reason of noise, odors or vibrations, or interfere in any way with other tenants
or those having business therein. Tenant will not bring or keep any animals in
or about the Premises or the Project.
9. BUILDING NAME AND ADDRESS. Without Landlord's prior written consent,
Tenant will not use the name of the Building in connection with or in promoting
or advertising Tenant's business except as Tenant's address.
10. BUILDING DIRECTORY. A directory for the Building will be provided for
the display of the name and location of tenants. Landlord reserves the right to
approve any additional names Tenant desires to place in the directory and, if so
approved, Landlord may assess a reasonable charge for adding such additional
names.
11. WINDOW COVERINGS. No curtains, draperies, blinds, shutters, shades,
awnings, screens or other coverings, window ventilators, hangings, decorations
or similar equipment shall be attached to, hung or placed in, or used in or with
any window of the Building without the prior written consent of Landlord, and
Landlord shall have the right to control all lighting within the Premises that
may be visible from the exterior of the Building.
12. FLOOR COVERINGS. Tenant will not lay or otherwise affix linoleum, tile,
carpet or any other floor covering to the floor of the Premises in any manner
except as reasonably approved in writing by Landlord. Tenant will be liable for
the cost of repair of any damage resulting from the violation of this rule or
the removal of any floor covering by Tenant or its contractors, employees or
invitees.
Exhibit C, Page 3
13. WIRING AND CABLING INSTALLATIONS. Landlord will direct Tenant's
electricians and other vendors as to where and how data, telephone, and
electrical wires and cables are to be installed. No boring or cutting for wires
or cables will be allowed without the prior written consent of Landlord. The
location of burglar alarms, smoke detectors, telephones, call boxes and other
office equipment affixed to the Premises shall be subject to the written
reasonable approval of Landlord.
14. OFFICE CLOSING PROCEDURES. Tenant will see that the doors of the
Premises are closed and locked and that all water faucets, water apparatus and
utilities are shut off before Tenant or its employees leave the Premises, so as
to prevent waste or damage. Tenant will be liable for all damage or injuries
sustained by other tenants or occupants of the Building or Landlord resulting
from Tenant's carelessness in this regard or violation of this rule. Tenant will
keep the doors to the Building corridors closed at all times except for ingress
and egress.
15. PLUMBING FACILITIES. The toilet rooms, toilets, urinals, wash bowls and
other apparatus shall not be used for any purpose other than that for which they
were constructed and no foreign substance of any kind whatsoever shall be
disposed of therein. Tenant will be liable for any breakage, stoppage or damage
resulting from the violation of this rule by Tenant, its employees or invitees.
16. USE OF HAND TRUCKS. Tenant will not use or permit to be used in the
Premises or in the Common Areas any hand trucks, carts or dollies except those
equipped with rubber tires and side guards or such other equipment as Landlord
may reasonably approve.
17. REFUSE. Tenant shall store all Tenant's trash and garbage within the
Premises or in other facilities designated By Landlord for such purpose. Tenant
shall not place in any trash box or receptacle any material which cannot be
disposed of in the ordinary and customary manner of removing and disposing of
trash and garbage in the city in which the Building is located without being in
violation of any law or ordinance governing such disposal. All trash and garbage
removal shall be made in accordance with directions issued from time to time by
Landlord, only through such Common Areas provided for such purposes and at such
times as Landlord may designate. Tenant shall comply with the requirements of
any recycling program adopted by Landlord for the Building.
18. SOLICITING. Canvassing, peddling, soliciting and distribution of
handbills or any other written materials in the Project are prohibited, and
Tenant will cooperate to prevent the same.
19. PARKING. Tenant will use, and cause Tenant's Representatives and
Visitors to use, any parking spaces to which Tenant is entitled under the Lease
in a manner consistent with Landlord's directional signs and markings in the
Parking Facility. Specifically, but without limitation, Tenant will not park, or
permit Tenant's Representatives or Visitors to park, in a manner that impedes
access to and from the Building or the Parking Facility or that violates space
reservations for handicapped drivers registered as such with the California
Department of Motor Vehicles. Landlord may use such reasonable means as may be
necessary to enforce the
Exhibit C, Page 4
directional signs and markings in the Parking Facility, including but not
limited to towing services, and Landlord will not be liable for any damage to
vehicles towed as a result of non-compliance with such parking regulations.
20. FIRE, SECURITY AND SAFETY REGULATIONS. Tenant will comply with all
safety, security, fire protection and evacuation measures and procedures
established by any governmental agency or reasonably established by Landlord.
21. RESPONSIBILITY FOR THEFT. Tenant assumes any and all responsibility for
protecting the Premises from theft, robbery and pilferage, which includes
keeping doors locked and other means of entry to the Premises closed.
22. SALES AND AUCTIONS. Tenant will not conduct or permit to be conducted
any sale by auction in, upon or from the Premises or elsewhere in the Project,
whether said auction be voluntary, involuntary, pursuant to any assignment for
the payment of creditors or pursuant to any bankruptcy or other insolvency
proceeding.
23. WAIVER OF RULES. Landlord may waive any one or more of these Building
Rules for the benefit of any particular tenant or tenants, but no such waiver by
Landlord will be construed as a waiver of such Building Rules in favor of any
other tenant or tenants nor prevent Landlord from thereafter enforcing these
Building Rules against any or all of the tenants of the Building.
24. EFFECT ON LEASE. These Building Rules are in addition to, and shall not
be construed to in any way modify or amend, in whole or in part, the terms,
covenants, agreements and conditions of the Lease. Violation of these Building
Rules constitutes a failure to fully perform the provisions of the Lease, as
referred to in Section 15.1 - "EVENTS OF DEFAULT".
25. NON-DISCRIMINATORY ENFORCEMENT. Subject to the provisions of the Lease
(and the provisions of other leases with respect to other tenants), Landlord
shall use reasonable efforts to enforce these Building Rules in a
non-discriminatory manner, but in no event shall Landlord have any liability for
any failure or refusal to do so (and Tenant's sole and exclusive remedy for any
such failure or refusal shall be injunctive relief preventing Landlord from
enforcing any of the Building Rules against Tenant in a manner that
discriminates against Tenant). This Section 25 shall not be subject to
modification by Landlord.
26. ADDITIONAL AND AMENDED RULES. Landlord reserves the right to rescind or
amend these Building Rules and/or adopt any other and reasonable rules and
regulations as in its reasonable judgment may from time to time be needed for
the safety, care and cleanliness of the Building and for the preservation of
good order therein.
INITIALS:
Landlord ______
Tenant ______
Exhibit C, Page 5
EXHIBIT D
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF MARCH 10, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD,
AND
INKTOMI CORPORATION, AS TENANT ("LEASE")
ADDITIONAL PROVISIONS RIDER
36. CASH AND/OR LETTER OF CREDIT.
(a) On Tenant's delivery to Landlord of copies of this Lease signed by
Tenant, Tenant shall deliver a check payable to Landlord in the amount of
$1,521,709.00 as the first installment of the Security Deposit to be held by
Landlord in accordance with the provisions of Section 4 and this Section 36. On
or before June 30, 2000, Tenant shall deliver to Landlord a second installment
of the Security Deposit in the amount of $16,478,291.00. The second
$16,478,291.00 installment of the Security Deposit shall consist either (i)
entirely of cash, (ii) entirely of an unconditional, irrevocable, transferable
and negotiable standby letter of credit (the "L/C"), or (iii) a combination of
cash and an L/C. The amount of any L/C is herein called the "FACE AMOUNT".
Consequently, effective June 30, 2000, the total Security Deposit shall be
$18,000,000.00. If Tenant elects to provide an L/C of $16,478,291.00, then
Landlord shall return to Tenant the cash Security Deposit of $1,521,709.00
within ten (10) days after Tenant delivers such $16,478,291.00 L/C to Landlord.
After Tenant makes the election as to the allocation of the Security Deposit
between cash and the L/C, as provided above, then Tenant shall not have the
right to subsequently re-allocate the Security Deposit between cash and the L/C.
Any L/C shall be issued by a bank or trust company ("ISSUER"), in form and
content acceptable to Landlord, in its sole and absolute discretion, as
additional security for the performance of Tenant's obligations under this
Lease. Notwithstanding the foregoing, Landlord shall not unreasonably withhold
consent to a bank as the Issuer of the L/C so long as the Issuer is a national
money center bank which has a branch in San Francisco, California and the Issuer
has shareholders' equity of at least $5,000,000,000. An L/C in the form attached
hereto as EXHIBIT E is hereby approved by Landlord. The L/C shall name Landlord
as beneficiary thereunder and provide that draws, including partial draws, at
Landlord's election, will be honored upon the delivery to the Issuer of a
certificate signed by Landlord, or its authorized agent, that Tenant has failed
to perform its obligations under the Lease. The L/C shall also provide that it
will be automatically extended upon each renewal date unless the Issuer thereof
delivers to Landlord, no later than forty-five (45) days prior to the stated
expiration date of the L/C, written notice of Issuer's intent not to extend or
renew the L/C. During any period that Tenant is required to maintain the L/C,
Tenant shall, at least thirty (30) days prior to any expiration or termination
of the L/C, provide Landlord either with written confirmation that the existing
L/C will be automatically extended and
Exhibit D, Page 1
renewed or with a new L/C that satisfies all of the requirements for the L/C in
this Section 36. In addition, upon a proposed sale or other transfer of any
interest in the Building, the Land, this Lease or Landlord (including
consolidations, mergers, or other entity changes), Tenant, at its sole cost and
expense and upon ten (10) Business Days' notice, shall, concurrent with
Landlord's delivery to Tenant of the then outstanding L/C, deliver to any such
transferees, successors, or assigns a replacement L/C on identical terms (except
for the stated beneficiary) from the same Issuer or another bank or trust
company acceptable to Landlord, in Landlord's sole discretion, naming the new
landlord as the beneficiary thereof. Tenant's failure to perform or observe any
of the covenants set forth in this Section 36 for any reason shall entitle
Landlord to draw on the full amount of the L/C without the requirement of any
notice from Landlord. Any amount(s) drawn under the L/C shall be held or used by
Landlord in accordance with the terms of Section 4 of the Lease.
(b) A portion of the Security Deposit, in the amount of $16,478,291.00 (the
"POTENTIAL SECURITY DEPOSIT REDUCTION AMOUNT"), may be reduced in accordance
with the provisions of (d) below.
(c) If as of the third (3rd), fifth (5th) and seventh (7th) anniversary
dates following the Rent Commencement Date, (i) no prior or current Event of
Default has occurred, and no event or condition exists, which with the passage
of time or delivery of notice by Landlord, or both, would constitute an Event of
Default, (ii) Tenant has delivered to Landlord, on or before such anniversary
dates, audited financial statements (the "FINANCIAL STATEMENTS") prepared in
accordance with generally accepted accounting principles consistently applied
and certified by Tenant's chief financial officer as being complete and accurate
which meet the "Financial Criteria", as defined in (d) below, then the Potential
Security Deposit Reduction Amount may be immediately reduced by the Reduction
Amount (as hereinafter defined) on (x) the third (3rd) anniversary date of the
Rent Commencement Date, (y) the fifth (5th) anniversary date of the Rent
Commencement Date, and (z) the seventh (7th) anniversary date of the Rent
Commencement Date, as applicable (the "L/C BURNOFF"). The "REDUCTION AMOUNT"
shall be calculated by multiplying the Potential Security Deposit Reduction
Amount by twenty percent (20%).
(d) For the purposes of this Section 36, the term "FINANCIAL CRITERIA"
means that the Financial Statements for each of the four consecutive calendar
quarters immediately prior to the applicable anniversary date confirm Tenant has
achieved all of the following:
(i) Tenant has shareholders' equity of $150,000,000.00 or more at the
end of each calendar quarter,
(ii), Tenant has positive pre-tax earnings of $10,000,000.00 or more
during each of the four calendar quarters,
(iii) Tenant has cash and marketable securities of $150,000,000.00 or
more at the end of each calendar quarter, and
Exhibit D, Page 2
(iv) Tenant has a ratio of cash and marketable securities to current
liabilities equal to 4 to 1, or greater at the end of each
calendar quarter.
37. PARKING.
(a) TENANT'S PARKING RIGHTS. Landlord shall provide Tenant, on an
unassigned and non-exclusive basis, for use by Tenant and Tenant's
Representatives and Visitors, at the users' sole risk, at no charge to Tenant, a
maximum of one thousand three hundred thirty-two (1,332) parking spaces in the
Parking Facility. The parking spaces to be made available to Tenant hereunder
may contain a reasonable mix of spaces for compact cars and subject to
designation of certain unassigned parking spaces for visitors' parking (and so
long as Tenant is leasing the entire rentable area of the Project, the number of
visitor parking spaces shall be subject to Tenant's reasonable approval). During
any time when Tenant is the sole tenant in the Project, subject to designation
of certain parking spaces as being for Visitors, Tenant shall be entitled to use
all available parking spaces, other than those (i) reasonably needed by
Landlord's on-site management personnel, and (ii) for use by the general public
during certain City sponsored civic events.
(b) AVAILABILITY OF PARKING SPACES. Landlord shall take reasonable actions
to ensure the availability of the parking spaces leased by Tenant, but Landlord
does not guarantee the availability of those spaces at all times against the
actions of other tenants of the Building and users of the Parking Facility.
Access to the Parking Facility may, at Landlord's option, be regulated by card,
pass, bumper sticker, decal or other appropriate identification issued by
Landlord. Landlord retains the right to revoke the parking privileges of any
user of the Parking Facility who violates the rules and regulations governing
use of the Parking Facility (and Tenant shall be responsible for causing any
employee of Tenant or other person using parking spaces allocated to Tenant to
comply with all parking rules and regulations). The City of Foster City,
California (the "City") requires that the Parking Facility be available for use
by the general public during certain public events sponsored by the City. The
City has indicated that such public events will be held during non-business
hours. However, Landlord makes no representation or guaranty that such public
events will not interfere with the parking available to Tenant, its employees
and Visitors.
(c) PARKING CONTROL. The City has required that the Landlord include in
this Lease (x) a prohibition against Tenant using more parking spaces than the
number of parking spaces provided to Tenant under subparagraph (a) above; and
(y) a notification that certain parking spaces are reserved for exclusive use by
customers of the retail portion of the Project (collectively, the "Parking
Controls"). Tenant shall cooperate with Landlord in the enforcement of the
Parking Controls. The number of parking spaces used by Tenant, its employees,
Tenant's Representative and Visitors shall not exceed the number of parking
spaces contained in subparagraph (a) above. In addition, Tenant shall notify
Tenant's employees of the prohibition against such employees parking in the
portion of the Parking Facility marked as reserved for retail customers.
Exhibit D, Page 3
(d) ASSIGNMENT AND SUBLETTING. Notwithstanding any other provision of the
Lease to the contrary, Tenant shall not assign its rights to the parking spaces
or any interest therein, or sublease or otherwise allow the use of all or any
part of the parking spaces to or by any other person, except (i) to a
Transferee, or (ii) with Landlord's prior written consent, which may be granted
or withheld by Landlord in its sole discretion. In the event of any separate
assignment or sublease of parking space rights that is approved by Landlord,
Landlord shall be entitled to receive, as additional Rent hereunder, one hundred
percent (100%) of any profit received by Tenant in connection with such
assignment or sublease.
(e) CONDEMNATION, DAMAGE OR DESTRUCTION. In the event the Parking Facility
is the subject of a Condemnation, or is damaged or destroyed, and this Lease is
not terminated, and if in such event the available number of parking spaces in
the Parking Facility is permanently reduced, then Tenant's rights to use parking
spaces hereunder may, at the election of Landlord, thereafter be reduced in
proportion to the reduction of the total number of parking spaces in the Parking
Facility. In such event, Landlord reserves the right to reduce the number of
parking spaces to which Tenant is entitled or to relocate some or all of the
parking spaces to which Tenant is entitled to other areas in the Parking
Facility.
38. EXTENSION OPTION.
Provided that Inktomi Corporation has not assigned this Lease or sublet
more than twenty percent (20%) of the Premises other than to an Affiliate (it
being intended that all rights pursuant to this provision are and shall be
personal to the original Tenant under this Lease and its Affiliates and shall
not be transferable or exercisable for the benefit of any Transferee other than
an Affiliate), and provided Tenant is not in default under this Lease at the
time of exercise or at any time thereafter until the beginning of any such
extension of the Term, Tenant shall have the option (the "EXTENSION OPTION") to
extend the Term for one (1) additional consecutive period of five (5) years
("EXTENSION PERIOD"), by giving written notice to Landlord of the exercise of
any such Extension Option at least twelve (12) months, but not more than
eighteen (18) months, prior to the expiration of the initial Term. The exercise
of the Extension Option by Tenant shall be irrevocable and shall cover the
entire Premises leased by Tenant pursuant to this Lease. Upon such exercise, the
term of the Lease shall automatically be extended for the Extension Period
without the execution of any further instrument by the parties; provided that
Landlord and Tenant shall, if requested by either party, execute and acknowledge
an instrument confirming the exercise of the Extension Option. The Extension
Option shall terminate if not exercised precisely in the manner provided herein.
Any extension of the Term shall be upon all the terms and conditions set forth
in this Lease and all Exhibits thereto, except that: (i) Tenant shall have no
further option to extend the Term of the Lease; (ii) Landlord shall not be
obligated to contribute funds toward the cost of any remodeling, renovation,
alteration or improvement work in the Premises; and (iii) Base Rent for any such
Extension Period shall be the then Fair Market Base Rental (as defined below)
for the Premises for the space and term involved, which shall be established as
set forth below.
Exhibit D, Page 4
(a) "FAIR MARKET BASE RENTAL" shall mean the "fair market" Base Rent at the
time or times in question for the applicable space, based on the prevailing
rentals then being charged to tenants in other office buildings in the general
vicinity of the Building of comparable size, location, quality and age as the
Building for leases with terms equal to the Extension Period, taking into
account the creditworthiness and financial strength of the tenant, the financial
guaranties provided by the tenant (if any), and the desirability, location in
the building, size and quality of the space, tenant finish allowance and/or
tenant improvements, included services, operating expenses and tax and expense
stops or other escalation clauses, for the space in the Building for which Fair
Market Base Rental is being determined and for comparable space in the buildings
which are being used for comparison. Fair Market Base Rental shall also reflect
the then prevailing rental structure for comparable office buildings in the
general vicinity of the Project, so that if, for example, at the time Fair
Market Base Rental is being determined the prevailing rental structure for
comparable space and for comparable lease terms includes periodic rental
adjustments or escalations, Fair Market Base Rental shall reflect such rental
structure.
(b) Landlord and Tenant shall endeavor to agree upon the Fair Market Base
Rental. If they are unable to so agree within thirty (30) days after receipt by
Landlord of Tenant's notice of exercise of the Extension Option, Landlord and
Tenant shall mutually select a licensed real estate broker. If Landlord and
Tenant are unable to agree upon the name of a licensed real estate broker within
such thirty (30) day period, then within fifteen (15) days after the expiration
of the thirty (30) day period, Landlord shall select a licensed real estate
broker, and Tenant shall select a licensed real estate broker. The two (2)
licensed real estate brokers shall then within fifteen (15) days thereafter
mutually select a third licensed real estate broker (the "Arbitrator"). All
licensed real estate brokers selected pursuant to the provisions of this
paragraph must be actively leasing space similar to the Building in the general
vicinity of the Project, and have at least five (5) years experience in the
leasing of space similar to the Building in the general vicinity of the Project.
After selection of the broker or brokers in accordance with the provisions of
this paragraph, Landlord shall submit Landlord's determination of Fair Market
Base Rental and Tenant shall submit Tenant's determination of Fair Market Base
Rental to such broker, or brokers, at such time or times and in such manner as
Landlord and Tenant shall agree (or as directed by the broker; or if Landlord
and Tenant do not agree on one broker and an Arbitrator is appointed, then as
directed by the Arbitrator, if Landlord and Tenant do not promptly agree). If
Landlord and Tenant have agreed upon one broker, the broker shall select either
Landlord's or Tenant's determination as the Fair Market Base Rental, and such
determination shall be binding on Landlord and Tenant. If Tenant's determination
is selected as the Fair Market Base Rental, then Landlord shall bear all of the
broker's cost and fees. If Landlord's determination is selected as the Fair
Market Base Rental, then Tenant shall bear all of the broker's cost and fees. If
Landlord and Tenant have not agreed upon one broker, and there is an Arbitrator
appointed, then the Arbitrator shall select either Landlord's or Tenant's
determination as the Fair Market Base Rental, and such determination shall be
binding on Landlord and Tenant. If Tenant's determination is selected as the
Fair Market Base Rental, then Landlord shall bear all costs and fees of all of
the brokers (including the Arbitrator). If Landlord's determination is selected
as the Fair Market Base Rental, then Tenant shall bear all of all costs and fees
of all of the brokers (including the Arbitrator). The broker or Arbitrator may
select only between the two (2) determinations of Fair Market Base Rental
submitted by
Exhibit D, Page 5
Landlord and Tenant, and shall not have the right to average the two
determinations of Fair Market Base Rental, or to make any determination of Fair
Market Base Rental other than between the two determinations submitted by
Landlord and Tenant.
(c) In the event the Fair Market Base Rental for the Extension Period
has not been determined at such time as Tenant is obligated to pay Base Rent for
the Extension Period, Tenant shall pay as Base Rent pending such determination,
the Base Rent in effect for such space immediately prior to the Extension
Period; provided, that upon the determination of the applicable Fair Market Base
Rental, any shortage of Base Rent paid, together with interest at the rate
specified in the Lease, shall be paid to Landlord by Tenant.
(d) In no event shall the Base Rent during the Extension Period be
less than the Base Rent in effect immediately prior to such Extension Period.
(e) The term of this Lease, whether consisting of the Initial Term
alone or the Initial Term as extended by the Extension Period (if the Extension
Option is exercised), is referred to in this Lease as the "Term."
39. RIGHT OF OFFER TO PURCHASE PROJECT.
(a) Provided that Inktomi Corporation has not assigned this Lease or sublet
more than thirty percent (30%) of the Premises other than to an Affiliate (it
being intended that all rights pursuant to this provision are and shall be
personal to the original Tenant under this Lease and its Affiliates and shall
not be transferable or exercisable for the benefit of any Transferee other than
an Affiliate), and provided Tenant is not in default beyond any applicable
notice and cure period under this Lease at the time of the exercise of any such
right or at any time thereafter until the closing of the sale to Tenant, during
the initial Term of this Lease (but not during the Extension Period, if Tenant
exercises the Extension Option), Tenant shall have a one-time right of first
offer to purchase the Project on the terms and conditions set forth below in
this Section 39.
(b) Such right of first offer may only be exercised with respect to the
entire Project offered by Landlord. Notwithstanding any provision contained
herein to the contrary, specifically excluded from the provisions of this
Section 39 are transfers to affiliates of Landlord, mergers or consolidation of
Landlord with, or transfers of substantially all the assets of Landlord to,
another entity, transfers to any party through a foreclosure, deed-in-lieu of
foreclosure or other transfer arising from or in connection with the rights of a
mortgagee of all or any part of the Project (collectively, an "EXCLUDED SALE");
and Tenant shall have no right of first offer nor shall Landlord be obligated to
offer to sell the Project to Tenant if there is an Excluded Sale. If Landlord
intends to sell Landlord's entire equity ownership in the Project (other than
pursuant to an Excluded Sale), Landlord shall offer to sell the Project to
Tenant at the same purchase price and on the same terms and conditions (the
"SALE TERMS") that Landlord intends to offer to sell the Project to prospective
purchasers ("LANDLORD'S OFFER TO SELL"). Landlord, at its option, may attach a
commercially reasonable form of purchase agreement incorporating the Sale Terms
to
Exhibit D, Page 6
Landlord's Offer to Sell (the "PURCHASE AGREEMENT"). Tenant shall have ten (10)
Business Days following receipt of Landlord's Offer to Sell within which to
notify Landlord in writing that Tenant accepts the Sale Terms contained in
Landlord's Offer to Sell. If Landlord has attached the Purchase Agreement to the
Landlord's Offer to Sell, Tenant must either (i) execute and return two copies
of the Purchase Agreement to Landlord in order to form a binding contract, or
(ii) notify Landlord in writing of Tenant's acceptance of the Sale Terms and
Tenant's specific objections to the provisions of the Purchase Agreement given
by Landlord to Tenant. To be effective, such notice (or such Purchase
Agreements) must be accompanied by a payment equal to four percent (4%) of the
purchase price set forth in the Sale Terms. If Tenant accepts the Sale Terms
contained in Landlord's Offer to Sell but Landlord did not attach the Purchase
Agreement to Landlord's Offer to Sell or Tenant has objected to the provisions
of the Purchase Agreement, then the parties shall negotiate in good faith and
execute the Purchase Agreement for such sale consistent with the provisions of
the Sale Terms. If Tenant fails so to accept the Sale Terms contained in
Landlord's Offer to Sell within such ten (10) Business Day Period, or if
Landlord does not attach the Purchase Agreement to Landlord's Offer to Sell or
Tenant has objected to the provisions of the Purchase Agreement and Landlord and
Tenant are unable to reach agreement upon, execute and deliver the Purchase
Agreement within fifteen (15) Business Days after Tenant's acceptance of the
terms contained in Landlord's Offer to Sell, Landlord may thereafter sell the
Project to any third party at such purchase price and upon such terms and
conditions as determined by Landlord; provided, however, if Landlord and a third
party agree on a sales price for the Project that is less than eighty percent
(80%) of the sales price contained in Landlord's Offer to Sell, then Landlord
shall first re-offer (the "INITIAL RE-OFFER") to sell the Project to Tenant at
such lower sales price. Tenant shall have five (5) Business Days following
receipt of the Initial Re-Offer within which to notify Landlord that it accepts
the terms contained in the Initial Re-Offer for purchase of the Project. If the
Purchase Agreement is attached to the Initial Re-Offer, Tenant must deliver two
executed copies of the Purchase Agreement in order to accept the Initial
Re-Offer. If Tenant accepts the terms contained in the Initial Re-Offer where no
Purchase Agreement is attached, then the parties shall negotiate the Purchase
Agreement in accordance with the provisions contained above. If Tenant fails so
to accept the terms contained in the Initial Re-Offer, then Landlord shall be
free to sell the Project to a third party under the terms, and at the price,
contained in the Initial Re-Offer.
(c) If Landlord does not close a sale of the Project within eighteen (18)
months following Landlord's Offer to Sell and desires to sell the Project after
the expiration of such 18-month period, then Landlord shall re-offer (the
"SECOND RE-OFFER") to sell the Project to Tenant in accordance with the
provisions of Landlord's Offer to Sell, including the requirements of the
Purchase Agreement; provided, however, the provisions concerning the Initial
Re-Offer shall not be applicable to the Second Re-Offer.
(d) If Tenant does not accept the terms contained in (i) Landlord's Offer
to Sell the Project from Landlord when it is first offered to Tenant by
Landlord, or (ii) the Initial Re-Offer, if and when re-offered to Tenant by
Landlord, or (iii) the Second Re-Offer if and when re-offered to Tenant, then
this right of first offer shall terminate and Tenant shall have no further
rights to purchase the Project, all without the necessity of Tenant executing or
delivering any further documentation or instrument.
Exhibit D, Page 7
(e) If Tenant agrees to purchase the Project as described above but does
not complete the sale, Landlord shall be entitled to retain the deposit paid by
Tenant as liquidated damages.
(f) ESCROW, TITLE AND CLOSING.
(i) Unless otherwise set forth in the Purchase Agreement, or agreed to
by Landlord and Tenant, on close of escrow, Landlord shall convey to Tenant good
and marketable title, as evidenced by a standard form ALTA title insurance
policy in the full amount of the purchase price, issued by a title insurance
company selected by Tenant, to be paid for by Landlord, subject only to
covenants, easements, restrictions and other matters of record.
(ii) All real property taxes and rent shall be prorated between
Landlord and Tenant as of the date of close of escrow.
(iii) On close of escrow, Landlord shall pay the cost of preparing and
recording the grant deed conveying title to Tenant. Tenant shall pay all
transfer taxes imposed by any governmental agency and escrow charges.
(iv) Any matters not specifically referred to herein shall be treated
in a manner consistent with escrow custom then in effect in San Mateo County,
California.
(v) If on or before the same date that the Purchase Agreement is
executed, Inktomi Corporation shall have furnished to Landlord a written
exclusive agency agreement engaging BT Commercial as Inktomi Corporation's
exclusive real estate agent, then on close of escrow Landlord shall pay to BT
Commercial a broker's commission equal to one-half of one percent (.5%) of the
purchase price paid by Inktomi Corporation.
40. POSSIBLE EXTERIOR BUILDING SIGNS.
(a) EXTERIOR BUILDING SIGN. The City restricts or prohibits exterior
signage on office buildings. Landlord agrees to cooperate with Tenant in any
attempt by Tenant to obtain approval by the City for exterior signage on the
Buildings. In addition to approval by the City, any exterior signage on the
Buildings is also subject to Landlord's prior written approval, subject to the
applicable provisions of the Lease and the provisions contained in this Section
40. Provided that (i) Tenant has received approval from the City and Landlord
(in accordance with the provisions of this Section 40) for exterior signage on a
Building, (ii) Inktomi Corporation leases and occupies at least 100,000 rentable
square feet in that Building (it being intended that all rights pursuant to this
provision are and shall be personal to Inktomi Corporation and its Affiliates
and shall not be transferable or exercisable for the benefit of any assignee of
the Lease other than an Affiliate, or any sublessee of any portion of the
Premises), and (iii) Tenant is not in default under this Lease beyond any
applicable notice and cure period, Tenant shall have the right
Exhibit D, Page 8
to place up to two (2) signs (individually or collectively, "TENANT'S SIGN") on
each Building identifying Tenant on the exterior of the Building at a location
or locations to be approved by Landlord and the City. Tenant's Sign shall be (a)
subject to Landlord's prior written approval of the size, location, material,
color, method of attachment to the Building, and all other aspects of Tenant's
Sign, which approval shall be in Landlord's sole and absolute discretion,
without any reference to standards of reasonableness, (b) subject to all
applicable ordinances, regulations and the prior approval of all applicable
governmental authorities, (c) shall only be installed after Tenant obtains all
necessary permits and approvals from the applicable authorities, and (d) shall
be installed and maintained in a first class condition at Tenant's sole cost and
expense (including, without limitation, the cost of obtaining all permits and
other governmental approval). If the City and Landlord approve lighting for
Tenant's Sign, the electricity for Tenant's Sign shall be separately metered, at
Tenant's sole cost and expense, and Tenant shall pay, when due, the electricity
charges for Tenant's Sign. Throughout the Term of the Lease Tenant shall not
make any change or changes to Tenant's Sign without the prior written consent of
Landlord. Within fifteen (15) days after the expiration or termination of this
Lease Tenant shall, at Tenant's sole cost and expense, remove Tenant's Sign from
the exterior of the Building and to repair any damage to the exterior of the
Building caused by the installation or removal of Tenant's Sign. If Tenant fails
to remove Tenant's Sign from the exterior of the Building, and to repair any
damage to the exterior of the Building, within fifteen (15) days after the
expiration or termination of this Lease, then Landlord shall have the right to
do so at Tenant's expense, and Tenant agrees to pay to Landlord the costs of
such removal and repair within thirty (30) days after Landlord invoices Tenant
therefor. Notwithstanding the provisions of Section 11.3 of this Lease, Tenant
will be liable for any damages or repairs incurred or required as a result of
the installation, use, repair, maintenance or removal of Tenant's Sign and
Tenant agrees to indemnify and hold harmless Landlord from any liability, loss,
damage, cost or expense, including reasonable attorneys' fees, arising
therefrom.
(b) SIGN SPACE RENT. Commencing on the date Tenant first installs Tenant's
Signs on a Building, and continuing until the earlier of (a) the end of the Term
of the Lease, or (b) the date Tenant actually removes Tenant's Signs as a result
of (i) Tenant no longer actually using and occupying at least 100,000 rentable
square feet in that Building, or (ii) Tenant losing the right to Tenant's Sign
pursuant to the provisions of this Section 40, Tenant shall pay to Landlord, as
additional rent, in accordance with the provisions of the Lease, the sum of
$2,500.00 per month for each of Tenant's Signs for the right to place and
install Tenant's Signs on the exterior of the Buildings.
41. TENANT'S GENERATOR(S).
Tenant shall have the non-exclusive right, at Tenant's sole cost and
expense, and subject to the provisions of this Section 41, to install one (1)
back-up emergency generator for each Building (or, at Tenant's option, a single
generator serving more than one Building, subject to physical constraints in the
location designated by Landlord), in a location or locations designated by
Landlord (which location shall be referred to individually and collectively as
the "Generator Site"), which generator shall be of such size and specifications,
and include such platforms,
Exhibit D, Page 9
sheds, fencing, venting and other related material and equipment as shall be
reasonably approved in writing by Landlord prior to installation (collectively,
the "Emergency Generator"); provided, however, Tenant shall not install more
than two (2) Emergency Generators at the Project. In addition, Tenant shall have
the right, subject to available capacity to install such connecting equipment,
such as conduits, chases, utility closets and materials (collectively, the
"Connecting Equipment") in the shafts, ducts, conduits, chases, utility closets
and other facilities of the Building as is reasonably necessary to connect the
Emergency Generator to Tenant's other machinery and equipment in the Premises.
Tenant shall also have the right of access to the areas where any such
Connecting Equipment is located for the purposes of maintaining, repairing,
testing and replacing the Connecting Equipment.
(a) The installation of the Emergency Generator and related Connecting
Equipment (herein referred to together and/or separately as the "Special
Equipment") shall be performed in accordance with, and subject to, the
provisions of Section 6 of this Lease, including without limitation, Tenant's
obligation to obtain Landlord's prior consent to the size and specifications of
the Special Equipment. If the weight of Emergency Generator requires an upgrade
to the Base Building Plans, Tenant shall be responsible for the costs of
upgrading the Base Building Work to accommodate the Emergency Generator. The
Special Equipment shall be treated for all purposes under this Lease as Tenant's
property.
(b) Landlord makes no representation or warranty that the Special Equipment
will supply sufficient electrical power to the Premises, and Tenant agrees that
Landlord shall not be liable for any failure relating thereto.
(c) Tenant shall not use any Hazardous Materials in connection with the
Special Equipment, except that, subject to the provisions of Section 5.2 of this
Lease, Tenant may use fuel stored within the Emergency Generator as necessary
for the operation thereof, as long as such fuel is kept, maintained and used in
accordance with applicable Laws and the highest safety standards for such
storage and use, and so long as such fuel is always stored within the Generator
Site and is not used or stored in any area outside the Generator Site.
(d) During the Term of this Lease, Tenant shall maintain the Special
Equipment at a high level, consistent with similar equipment in comparable
office buildings in the general vicinity of the Project. Tenant's Emergency
Generator shall be routinely tested and inspected (at least once per month
following the Final Rent Commencement Date), at Tenant's sole cost and expense,
by a qualified contractor selected by Tenant and reasonably approved by
Landlord, in accordance with testing and inspection contracts reasonably
approved by Landlord. Within five (5) Business Days after receipt thereof,
Tenant will provide Landlord with copies of all certificates and other
documentation relating to the testing of the Emergency Generator. Testing hours
are restricted, however, to those specific hours reasonably set and determined
by Landlord from time to time.
(e) Upon expiration or termination of the Term of this Lease, Tenant shall,
subject to the reasonable control of and direction from Landlord, remove the
Special Equipment, repair any
Exhibit D, Page 10
damage caused from such removal, and restore the Generator Site to its condition
existing prior to the installation of the Special Equipment.
42. ANTENNA LICENSE.
Landlord hereby grants to Tenant the non-exclusive License to install an
antenna on the roof of the East Office Building and the West Office Building,
subject to all the terms and conditions provided in the Antenna License attached
as EXHIBIT G (the "ANTENNA LICENSE") and to the requirements of the City,
including, without limitation, the screening requirements imposed by the City
for rooftop equipment. Landlord and Tenant acknowledge that the Antenna License
will be executed by the parties subsequent to their execution of this Lease and
after Tenant has determined its reasonable requirements for rooftop antennae
use. The parties further acknowledge that certain provisions of the Antenna
License have been left for future negotiation, including provisions governing
the square footage of the Rooftop Space and the Equipment Room (as such terms
are defined in the Antenna License) available for Tenant's use. Landlord and
Tenant shall negotiate reasonably and in good faith to reach agreement on those
provisions of the Antenna License which remain open to further negotiation. In
this regard, Landlord acknowledges that Tenant is leasing the entire East Office
Building and the entire West Office Building, and that, subject to meeting the
requirements imposed by the City for the City's rooftop use (including
Communications Spaces) and the reasonable requirements of Landlord for either
its own use, or for use by third party licensees ("COMMUNICATIONS LICENSEES") of
Landlord, of the rooftop, Equipment Room, and Communications Spaces (as
distinguished from Landlord's use for the direct or indirect benefit of others),
Tenant shall be given a preferential right to utilize a reasonable amount of
Rooftop Space and Equipment Room space to meet Tenant's own requirements,
subject to and in accordance with the other applicable provisions of the Antenna
License. Landlord shall not enter into a license with any Communication
Licensees until the earlier of (i) thirty (30) days after Landlord receives
Tenant's plans listed in Section 6.1 of the License, or (ii) ninety (90) days
after the Final Rent Commencement Date, and thereafter Landlord's right to enter
into a license with any Communications Licensees is subject to Tenant's prior
right, upon prior written notice to Landlord, to utilize the Rooftop Space and
Equipment Room for Tenant's use in accordance with the provisions of this Lease.
Tenant shall have prior approval rights over the location and equipment of any
Communications Licensees, only if the equipment (including the location of such
equipment), or transmissions from the Communications Licensees interferes with
Tenant's use of the Rooftop Space, Equipment Room or Communications Spaces. In
the event of any conflict between the provisions of this Section 42 and the
provisions of the Antenna License attached hereto as Exhibit G, the provisions
of this Section 42 shall prevail.
43. POSSIBLE REDUCTION OF AREA IN FIRST LEVEL OFFICE SPACE.
Exhibit D, Page 11
As of the date of this Lease, the Use Permit issued by the City for the
Project permits the First Level Office Space to be used only for the sale of
retail goods. Landlord agrees to use diligent good faith efforts to have the
City reclassify the use of the First Level Office Space (the "PROPOSED
RECLASSIFICATION") from the sale of retail goods to office space. Landlord
agrees to periodically notify Tenant with respect to Landlord's progress in
achieving the Proposed Reclassification. Tenant shall not contact the City
regarding such Proposed Reclassification, except at the request of Landlord. All
costs, fees, and other charges associated with the Proposed Reclassification
(including, without limitation, any impact fees or other exactions) shall be
borne solely by Landlord and shall not be passed through to Tenant.
(a) If by November 1, 2000 Landlord achieves the Proposed Reclassification
for the entire First Level Office Space, or achieves the Proposed
Reclassification for 5,000 contiguous square feet, or more, of the First Level
Office Space, then Tenant shall continue to lease as office space that portion
of the First Level Office Space on which Landlord has achieved the Proposed
Reclassification.
(b) If by November 1, 2000 Landlord has either (i) not achieved the
Proposed Reclassification for the entire First Level Office Space, or (ii) has
achieved the Proposed Reclassification only for a portion of the First Level
Office Space (any such First Level Space which has not been reclassified
pursuant to the Proposed Reclassification is herein called the "REDUCTION
SPACE"), then (x) this Lease shall partially terminate with respect to the
Reduction Space, or (y) if the First Level Space so reclassified pursuant to the
Proposed Reclassification not 5,000 square feet, or more, of contiguous space,
this Lease shall partially terminate with respect to the entire First Level
Office Space. Upon any partial termination of this Lease pursuant to the
provisions of this Section 43, Landlord and Tenant, shall, at the request of the
other, enter into a Lease amendment reducing the rentable area in the Premises
by the amount of rentable area in the Reduction Space. In addition to such
reduction in the rentable area, such amendment shall contain the following
provisions:
(i) The number of parking spaces and the number of access cards
provided by Landlord shall be reduced by one (1) for each 198 usable square foot
in the Reduction Space.
(ii) Tenant's Operating Costs Share and Tenant's Tax Share shall be
amended based upon the remaining rentable area in the Premises after the
Reduction Space has been eliminated from the area in the Premises.
44. REDUCTION IN RENTABLE AREA FOR A MANAGEMENT OFFICE.
Landlord will require an on-site office, not to exceed 1,300 rentable
square feet, exclusively used for the management of the Project. In reviewing
Tenant's Space Plan,
Exhibit D, Page 12
Landlord will indicate to Tenant the location and configuration Landlord desires
for such management office. Landlord and Tenant will mutually determine the
location and configuration of the management office prior to final approval of
Tenant's Space Plan. The rentable area in the Premises will be reduced by the
rentable area contained in the management office, and Tenant will not be leasing
the management office.
INITIALS:
Landlord ______
Tenant ______
Exhibit D, Page 13
EXHIBIT E
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF MARCH 10, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD,
AND
INKTOMI CORPORATION, AS TENANT ("LEASE")
APPROVED LETTER OF CREDIT FORM
[LETTERHEAD OF ISSUING BANK]
[MUST BE A BANK WHOSE LOCATION, CREDIT AND PRACTICES LANDLORD HAS APPROVED]
RE: IRREVOCABLE COMMERCIAL LETTER OF CREDIT NO. _________
TO: [NAME OF PROJECT OWNER] ("Landlord"), __________________________________
__________________ [LANDLORD'S ADDRESS]
Gentlemen:
We hereby issue our Irrevocable Commercial Letter of Credit in your favor, for
the account of _____________________________ [NAME OF TENANT AND TYPE OF ENTITY
(E.G. "ABC CORPORATION, A CALIFORNIA CORPORATION")] ("Tenant"), in the amount of
______________________________ Dollars ($__________). This amount is available
to you on presentation of your sight draft drawn upon us referring to the above
letter of credit number, date and amount being drawn hereunder, accompanied by
the signed statement of you or your authorized agent, Cornerstone Properties
Limited Partnership dba ▇▇▇▇▇▇ Cornerstone Properties Limited Partnership, that
the amount drawn hereunder is being drawn pursuant to the terms of the
_______________ [TITLE OF LEASE DOCUMENT (E.G. OFFICE LEASE, LEASE AGREEMENT,
ETC.)] dated as of __________, between Tenant, as tenant, and Landlord, as
landlord, for certain premises located at _______________
__________________________ (the "Lease").
Any draft presented for payment must be presented on or before ________________
[TERM SHOULD BE AT LEAST ONE YEAR], the date this Letter of Credit expires.
Partial drawings are permitted.
If you sell or otherwise transfer any interest in the "Building" (as defined in
the Lease) [BE SURE TO USE THE DEFINED TERMS USED IN THE LEASE (E.G. IF THE
ENTIRE PROJECT IS CALLED THE "PROJECT" IN
Exhibit E, Page 1
THE LEASE, THEN USE THAT TERM HERE)], in the land upon which the same is
located, in the Lease, or in Landlord (including consolidations, mergers or
other entity changes), you shall have the right to transfer this Letter of
Credit to your transferee(s), successors or assigns.
We hereby certify that this is an unconditional and irrevocable Letter of Credit
and agree that a draft drawn under and in compliance with the terms hereof will
be honored upon presentation at our office at _________________________________
[IT MUST BE A LOCATION EASILY ACCESSIBLE TO US (E.G. NO COUNTRY BANKS LOCATED IN
SOME TINY TOWN IN THE SOUTHEASTERN CORNER OF TEXAS].
This Letter of Credit shall automatically be extended and renewed for successive
one year periods at the end of the stated expiration date and each anniversary
thereof unless we notify you in writing, no later than forty-five (45) days
prior to the then applicable expiration date, that we will not extend and renew
the Letter of Credit for another one year term.
Except to the extent inconsistent with the express provisions hereof, this
Letter of Credit is subject to and governed by Uniform Customs and Practice for
Documentary Credits (1993 Revision) International Chamber of Commerce
publication number 500.
[NAME OF BANK]
---------------------------------
Authorized Signature
INITIALS:
Landlord ______
Tenant ______
Exhibit E, Page 2
EXHIBIT F
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF MARCH 10, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD,
AND
INKTOMI CORPORATION, AS TENANT ("LEASE")
JANITORIAL SPECIFICATIONS
A. TENANT OFFICE AREAS
1. NIGHTLY SERVICES
a. Secure all lights as soon as possible each night.
b. Vacuum all carpets; spot clean as needed; dry clean heavy traffic
areas as necessary.
c. Dust mop all composition floors with treated dust mops. Damp mop to
remove spills and water stains as required.
d. Damp mop all other tile, marble, terrazzo flooring.
e. Dust all desks and office furniture (including book shelves, picture
frames, tops of partitions) with treated dust cloths, as appropriate
WITHOUT DISTURBING ITEMS ON DESKS AND SHELVES.
f. Sanitize all telephone receivers.
g. Empty all waste paper baskets, recycling containers, and other trash
containers; replace ____ liners as appropriate. Remove "wet trash"
from lunch/break rooms taking care not to spill. Use heavy plastic or
canvas at all trash locations.
h. Remove all trash from floors to designated trash areas.
i. Remove finger prints, dirt smudges, graffiti, etc., from all doors
(including door hardware), glass partitions, glass tops, switch
plates, walls; wipe clean smudged chrome, brass and other "bright
work", etc.
j. Return chairs and waste baskets to proper positions.
k. Clean, sanitize and polish drinking fountains.
m. Secure the building, suites and indivuidal offices as directed. Lock
all doors which were locked proir to cleaning. While working within a
suite, keep the doors locked.
n. Turn off all lights when not occyping an area.
o. Drapes and Blinds to be left in same condition found when entering the
suite.
p. If not in waste basket, DO NOT throw out anything unless specifically
marked "Trash" or "Basura."
q. Survey for any lights needing bulb changes, replace bulbs as needed.
Report any ballast problems to building management.
2. WEEKLY SERVICES
a. Dust all low reach areas including, but not limited to chair rungs,
structural and furniture ledges, base boards, door louvers, wood
paneling molding, etc.
b. Dust inside of all door jambs.
c. Dust all exterior window and interior window mini-blinds.
d. Thoroughly damp mop all composition flooring.
Exhibit F, Page 1
e. Clean / scrub door thresholds with steel wool.
f. Vacuum vacant suites (partial only, as needed)
g. Clean and polish conference room tables.
h. Spot clean entrance doors, frames hardware to each tenant space, and
light switches in reception areas.
i. Through vacuuming of carpeted areas, wall to wall.
3. MONTHLY SERVICES
a. Dust all high reach areas including, but not limited to tops of door
frames, structural and furniture ledges, air conditioning diffusers
and return air grills.
b. Vacuum all upholstered furniture.
c. Thoroughly edge vacuum all carpeting.
d. Shower-scrub or otherwise recondition all tile and composition
flooring to provide a level of appearance equivalent to a completely
refinished floor.
e. Clean mini-blinds.
f. Establish a monthly desk cleaning program and work with the property
management office and tenants to provide voluntary desk cleaning for
participating tenants/employees. For employees agreeing to such
service, desks would be cleaned off in advance to allow for
pre-scheduled cleaning.
g. Wipe down and polish inside and outside of tenant entry doors.
4. SEMI-ANNUAL SERVICES
a. Steam extraction shampoo with neutralizing rinse all common corridor
carpeted floors on a rotating basis so as to accomplish two washings
per year.
b. Completely strip composition flooring, apply floor finish and buff.
c. Dust/clean alll HVAC diffusers and air grills.
5. ANNUAL SERVICES
a. Clean and wash all overhead lighting fixtures (can be done on a
constant rotating basis.)
B. KITCHEN/COFFEE AREAS
IN ADDITION TO THE NIGHTLY SERVICE SPECIFICATIONS LISTED IN SECTION "A", THE
FOLLOWING DUTIES SHOULD BE PERFORMED.
1. NIGHTLY SERVICES
a. Wipe down all counter tops and kitchen tables; these surfaces should
be left in an unstreaked condition.
b. Spot clean finger prints and smudges from cabinet doors and surfaces.
c. Wipe down (inside and out) all trash receptacles; provide fresh
liners.
d. Wipe down any stains from wall and baseboard behind trash receptacles.
e. Damp mop floor to remove spills and stains; detail around refrigerator
edges.
f. Spot clean exterior of refrigerator (including the top), microwave,
coffee maker, etc.
g. Dust all open shelving areas.
2. MONTHLY SERVICES
a. Thoroughly wash down all countertops and surfaces.
b. Thoroughly wash down refrigerator surfaces.
C. MAIL COPY & STORAGE ROOMS
Exhibit F, Page 2
1. NIGHTLY SERVICES
a. Dust all open shelving areas.
b. Wipe down all countertops.
c. Remove fingerprints and smudges from all cabinet doors and surfaces.
d. Remove all trash; provide fresh liners as appropriate.
e. Damp mop floors to remove spills and stains.
D. RESTROOM SERVICES
1. NIGHTLY SERVICES
a. Restock all restrooms with supplies including paper towels, toilet
tissue, seat covers, sanitary napkins, tampons and hand soap.
b. Wash and polish all mirrors, dispensers, faucets, flushometers, and
"bright work" with non-scratch disinfectant cleaners.
c. Wash and sanitize all toilets, toilet seats, urinals and sinks with
non-scratch disinfectant cleaners. All surfaces to be wiped dry.
d. Remove stains, descale toilets, urinals and sinks.
e. Mop all restroom floors with disinfectant germicidal solution.
f. Empty and sanitize all waste and sanitary napkin and tampon
receptacles; provide fresh liners.
g. Remove all restroom trash from building.
h. Spot clean finger prints, marks and graffiti from walls, partitions,
aluminum and switch plates as required.
i. Dust all partition tops.
j. Report all fixtures not working properly to supervisor and Building
Manager.
k. Pour water into all floor drains.
l. Spot clean walls around wash basins.
2. WEEKLY SERVICES
a. Dust all doors and door jambs.
b. Pour clean water with germicidal solution in urinal traps, lavatory
traps and toilet bowls.
c. Wipe down / polish restroom signs on doors.
d. Wash down all containers for toilet tissue, paper towels, rubbish, and
tampons/sanitary napkins.
3. MONTHLY SERVICES
a. Thoroughly scrub an reseal all ceramic tile floors, using approved
sealers, if appropriate.
b. Wash down all tile walls (wall behind toilet/urinal should be done
daily), partitions and dispensers as appropriate. Partitions and
dispensers shall be left in an unstreaked condition after this work.
c. Clean and polish all doors, frames and hardware.
4. QUARTERLY SERVICES
a. Dust/Clean exhaust fan vents.
b. Dust/Clean all restroom light fixtures.
c. Dust all high reach areas including, but not limited to structural
ledges, mirror tops, air conditioning diffusers and return air grills.
d. Clean all ventilation grills.
E. MAIN FLOOR LOBBY AND ELEVATOR LOBBY
Exhibit F, Page 3
1. NIGHTLY SERVICES
a. Thoroughly wipe down all entry glass doors.
b. Wipe smudges, etc. from all glass, chrome bright work including entry
doors, hardware, kick plates, base, switch plates, waste paper
receptacles, planters, elevator call button plates, hose cabinets, and
visible hardware on the corridor side of tenant entry doors.
c. Wipe smudges, finger prints, etc. from all interior architectural
stainless steel finishes including the lobby side of all tenant
windows, door frames and base.
d. Spot clean all wall surfaces where applicable.
e. Thoroughly clean all door thresholds of dirt and debris.
f. Spot clean, sweep and damp or dust mop all flooring, as applicable.
g. Empty, clean and sanitize as required all waste paper baskets and
refuse receptacles.
h. Vacuum all carpets; spot clean and/or dry clean as necessary.
i. Dust and wipe down directory sign, guard station, etc.
j. Spot clean all exterior glass at building entrances.
2. WEEKLY SERVICES
a. Thoroughly polish all chrome and architectural stainless steel
interior finishes.
b. Buff hardwood floors as appropriate.
c. Thououghly clean all entrance doors and adjacent windows, and double
glass doors into tenant suites. Polish all metal (frames, hardware) on
entry door thresholds.
d. Wipe down marble wall surfaces.
e. Dust and wipe down all suite plaques off lobby area.
f. Dust elevator doors and frames (Use vertical motion with non-abrasive
cloth.)
3. MONTHLY SERVICES
a. Shampoo and extract lobby area carpets as needed.
b. Dust wood paneling as appropriate.
4. SEMI-ANNUAL SERVICES
a. Strip and reseal granite or stone floor.
b. Vacuum fabric panels as appropriate (the fabric walls are on an annual
schedule to be professionally dry cleaned by another contractor).
Condition hardwood floors as necessary.
5. ANNUAL SERVICES
a. Condition all wood panelling as appropriate.
F. ELEVATOR LOBBIES, HALLS AND PASSAGEWAYS
1. NIGHTLY SERVICES
a. Clean, sanitize and polish drinking fountains.
b. Vacuum all carpets and/or dust mop hardwood floors.
c. Spot clean all carpets, as needed.
d. Check all interior public corridor plants for debris.
e. Dust and remove debris from all metal door thresholds.
f. Clean all baseboards.
g. Dust and clean directory signs.
h. Dust and spot clean vertical surfaces.
i. Check exit doors and lights.
j. Remove fingerprints, smudges, etc. on glass doors in elevator lobbies.
Exhibit F, Page 4
k. Dust all lobby furniture.
l. Empty trash recepticles in garage lobbies and landings.
m. Clean all pay phones.
n. Clean outside door mailboxes, where applicable.
3. WEEKLY SERVICES
a. Buff hardwood floors as necessary.
b. Dust stairwell railings.
c. Dust / wipe down upper floor directories.
d. Vacuum/sweep all stairs and stairwell landings as needed.
4. MONTHLY SERVICES
a. Dust / wipe down corridor suite plaques and suite directonal signs.
2. SEMI-ANNUAL SERVICES
a. Condition all hardwood floors as necessary.
b. Dust/Clean all HVAC diffusers, return air grills.
G. PASSENGER AND SERVICE ELEVATORS
1. NIGHTLY SERVICES
a. Clean and polish exterior and interior stainless steel and chrome
surfaces of forward cab walls, doors and door frames.
b. Spot clean elevator cab floor carpeting and/or dry clean as necessary.
c. Vacuum all cab floor carpeting thoroughly. Edge all carpeting
thoroughly,
d. Vacuum all elevator door tracks.
e. Dust interior light plastics.
f. Dust interior of emergency phone cabinet.
2. WEEKLY SERVICES
a. Clean all thresholds with steel wool.
3. MONTHLY SERVICES
a. Shampoo and extract all elevator cab floor carpets as necessary.
b. Wipe clean all elevator cab lamps.
c. Wipe clean entire cab ceiling as appropriate.
H. STAIRWELLS, LANDINGS AND BALCONIES
1. NIGHTLY SERVICES
a. Police all stairwells; check for trash. Sweep as needed.
b. Damp mop to remove spillage, as required.
c. Dust all railings.
d. Police and spot clean exterior balconies.
e. Empty garbage bins, recycle bags and wipe down surface as needed.
f. Hose down/power wash building entrances as instructed.
Exhibit F, Page 5
g. Clean cigarette urns.
2. WEEKLY SERVICES
a. Thoroughly sweep all stairs and landings.
3. MONTHLY SERVICES
a. Thoroughly wipe down all rails.
b. Machine scrub all balconies.
4. QUARTERLY SERVICE
a. Throughly clean, scrup and reseal all balconies using UL approved
cleaners and sealer.
I. STORE ROOMS AND SERVICE SINK CLOSETS
1. NIGHTLY SERVICES
a. Remove trash from these areas.
b. Maintain an orderly arrangement of all janitorial supplies and paper
products in these areas.
c. Maintain an orderly arrangement of all equipment stored in these
areas, such as mops, buckets, brooms, vacuum cleaners, scrubbers, etc.
d. Clean and disinfect service sinks.
e. Sweep and damp mop service sink closet floors. Deodorize and disinfect
as required.
f. Sweep store room floors.
g. Receive and store all janitorial supplies in an orderly manner.
J. TRASH AREA AND SERVICE ENTRANCE
1. NIGHTLY SERVICES
a. Place all miscellaneous trash and debris, except construction material
in the Building's trash receptacles, compactors, recycling bins or
balers.
b. Neatly stack all trash in designated areas.
c. Sweep entire area.
K. MISCELLANEOUS
a. All cleaning personel will be instructed to immediatly report any
damages, plumbing problems, etc., which they encounter during
cleaning, to the crew supervisor.
b. The Crew Supervisor will be responsible for notifying the management
office daily of lights out in tenant suites.
c. All cleaning personel will be required to wear a uniform. Company I.D.
picture badges will be worn at all times while working in the
building. All janitors must be neat and clean at all times.
d. Janitors are required to comply with the building's recycling program.
e. Janitor's closets and all building service areas will be kept in a
neat and orderly condition at all times.
f. The same personel should work in the building nightly. If a change is
required, a note be left in the Janitorial log book. All janitorial
personel, including the ▇▇▇▇▇▇▇, must approved by the Building
Manager.
M. SPECIAL SERVICES
Exhibit F, Page 6
1. CAFE
a. NIGHTLY SERVICES
1) Damp mop floors to remove spills and stains.
2) Wipe down counters, tables and chairs, remove trash, replace liners
3) Clean the mats behind the servery.
b. WEEKLY SERVICES
1) Shower scrub or otherwise recondition all tile and composition
flooring to provide a level of appearance equivalent to a
completely refinished floor.
Note: The cafe operator is responsible for the servery and equipment.
2. REFRIGERATORS
a. WEEKLY SERVICES
1) Remove all disposable items and thoroughly clean out. Defrost if
nesessary.
3. VCT FLOORS; MEETING ROOMS; COFFEE STATIONS
a. WEEKLY SERVICES
1) Shower scrub or otherwise recondition all tile and composition
flooring to provide a level of appearance equivalent to a
completely refinished floor.
4. SHOWERS
a. NIGHTLY SERVICES
1) Wash and sanitize walls, floors, fixtures, handicap seat, etc.
2) Clean and sanitize wood benches.
3) Mop and disinfect tile floors.
5. FITNESS CENTER
a. NIGHTLY SERVICES
1) CLEAN AND DISENFECT SEATS AND HANDLES AND ALL FITNESS CENTER
EQUIPMENT.
b. WEEKLY SERVICES
1) THROUGHLY CLEAN ALL MIRRORS AND WALLS.
6. BASEMENT LEVEL COMMON AREAS
1. WEEKLY SERVICES
a. Sweep.
2. MONTHLY SERVICES
a. Damp mop.
Exhibit F, Page 7
INITIALS:
Landlord ______
Tenant ______
Exhibit F, Page 8
EXHIBIT G
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF MARCH 10, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD,
AND
INKTOMI CORPORATION, AS TENANT ("LEASE")
ANTENNA LICENSE
RECITALS
A. Landlord and Tenant agree that, as to this Antenna License
("License"), their relationship is that of a Licensor and a Licensee,
respectively. Licensee represents and warrants to Licensor that Licensee is
authorized to operate a rooftop antenna and associated equipment for
telecommunications purposes from the Building under the conditions described
herein.
B. Licensee desires access to, and limited use of, specified portions
of the roof and interior spaces of the Building for the purpose of installing,
maintaining, and operating the roof-mounted antenna system that is briefly
described below and is specified in further detail in Exhibits G-1 through G-.
Now, therefore, the parties hereto agree as follows:
1. GRANT
1.1 Licensor hereby grants to Licensee a non-exclusive license
(the "License"):
(a) To install, maintain, operate, and remove, at Licensee's
sole expense and risk, certain "Antenna Facilities" upon the "Rooftop Space,"
and in the "Equipment Room," as each of these terms are hereinafter defined.
(b) To install, maintain, operate, and replace, at Licensee's
sole expense and risk, certain "Connecting Equipment" together with the right to
pull such Connecting Equipment through "Building Communications Spaces" as each
of these terms is defined below. Licensee's Antenna Facilities and Licensee's
Connecting Equipment are collectively referred to in this License as "Licensee's
Equipment".
1.2. The "Antenna Facilities" shall consist solely of the following
elements, as they may be amended in accordance with Section 6.8:
Exhibit G, Page 1
(a) Antenna equipment and related cabling elements
("Antenna Equipment") with the size, engineering structure,
broadcast frequencies, and operating characteristics specified
in Exhibit G-1 ("Antenna Characteristics") and with the
physical space and access requirements specified in Exhibit
G-2 ("Rooftop Plan");
(b) Other elements to be installed within the Building in the
particular space or spaces specified in Exhibit G-3
("Equipment Room Plan").
1.3 Licensor shall provide to Licensee approximately _________
square feet of floor space upon the rooftop ("Rooftop Space") in the location
designated on Exhibit G-2 and shall provide physical access to that space to the
degree specified as necessary in this License.
1.4 Licensor shall provide to Licensee approximately ___________
square feet of floor space in the Building (the "Equipment Room"), in the
location designated on the plan annexed hereto as Exhibit G-3. The Equipment
Room will be used by Licensee as to house Licensee's electronic equipment for
use in connection with the antenna(s) described in Exhibit G-1, and for only
that purpose.
1.5 The "Connecting Equipment" refers to the cables, conduits,
inner ducts and connecting hardware that connect the Antenna Facilities. The
Connecting Equipment passes though the "Building Communications Spaces", which
are the telecommunications pathways designated and approved by Licensor between
the Equipment Room and the Rooftop Space. The Connecting Equipment and Building
Communications Spaces are shown on Exhibit G-4.
1.6 Licensor shall have the right, in its sole and commercially
reasonable judgment, to limit the type, size and location of Licensee's
Equipment located in or on the Building. Further, Licensor may, in its sole and
commercially reasonable judgment, at Licensee's expense, relocate any or all of
Licensee's Equipment or require Licensee to relocate any or all of Licensee's in
the Building or upon the rooftop from time to time during the term of this
License, provided that such relocation does not render Licensee's utilization of
the site impracticable. In the event that Licensor requires Licensee to relocate
Licensee's Equipment, Licensee shall, within ninety (90) days, either: (i)
terminate this License upon written notice to Licensor; or (ii) relocate
Licensee's Equipment as requested by Licensor (the time period for relocation
shall be extended to one-hundred and twenty (120) days if Licensee has begun but
not yet completed the relocation within the required ninety (90) day period).
Licensor shall allow Licensee to perform a standard cutover procedure, if
required by said relocation, which will insure that the relocated equipment is
operational for service prior to discontinuing service from the old service
location.
1.7 Licensor and Licensee acknowledge and agree that the
relationship between them is solely that of independent contractors, and nothing
herein shall be construed to constitute the parties as employer/employee,
partners, joint venturers, co-owners, or otherwise as participants in a joint or
common undertaking. Neither party, nor its employees, agents, or
representatives, shall have any right, power or authority to act or create any
obligation, express or implied, on behalf of the other.
Exhibit G, Page 2
1.8 Licensee is expressly forbidden to use its equipment located
within the Building to program or control the operations of any other antenna
located upon other properties without the express written permission of the
Licensor. Additional fees may be required, as agreed to between the parties, for
using Licensee's Equipment as a control point for other properties outside the
Building.
1.9 Licensor makes no warranty or representation that the
Rooftop, the Building Communications Spaces, the Equipment Room or the Building
are suitable for Licensee's use, it being assumed that Licensee has satisfied
itself thereof. Licensee has inspected the Rooftop, the Building Communications
Spaces, the Equipment Room and the Building and accepts the same "as is" and
agrees that Licensor is under no obligation to perform any work or provide any
materials to prepare the Rooftop, the Building Communications Spaces, the
Equipment Room or the Building for Licensee. Nothing in this License shall be
considered to diminish any right or rights Licensee may have, as Tenant under
the Lease, to require completion of the Base Building in accordance with the
requirements of the Lease.
1.10 The License granted herein is not exclusive, and Licensor
hereby reserves the right to grant, renew or extend similar licenses to others;
provided that such licenses do not render Licensee's utilization of the site
impractical, and further provided that Licensee shall have the exclusive use of
the square footage of Rooftop Space described in Section 1.3 and Exhibit G-2,
and shall have the exclusive use of the square footage of floor space in the
Equipment Room as described in Section 1.4 and Exhibit G-3.
2. FEES
2.1 Licensee shall pay to Licensor an annual fee (the "License
Fee") of Three Thousand Six Hundred and 00/100 DOLLARS ($3,600.00), each year of
the License, for each satellite dish installed by Tenant, increased annually on
the anniversary of the Rent Commencement Date, as defined in the Lease, of each
year by ten percent (10%).
2.2 The License Fee shall be payable by Licensee in advance in
twelve (12) equal monthly payments, or part thereof, commencing on the date
herein shown as the Commencement Date.
3. TERM
The Term of this License shall be coextensive with the term of the
Lease, unless earlier terminated in accordance with the provisions of this
License. Licensee shall have the right to terminate this License (but not the
Lease) upon ninety (90) days prior written notice to Licensor delivered within
ninety (90) days after each anniversary date of the Rent Commencement Date (as
defined in the Lease)
4. USE
Licensee shall use Licensee's Equipment, the Antenna Facilities and the
Building Communications Spaces solely for the purposes of providing the services
detailed in Exhibit G-1
Exhibit G, Page 3
of this License and for which it has received all necessary approvals, permits
and licenses from any and all private and public land use agencies or
organizations, local, state and federal agencies, including as applicable
zoning, planning or building departments, the local public utility governing
body, and the Federal Communications Commission (the "FCC"). All work done by
Licensee shall also be consistent with Exhibit .G-5, the Site Technical
Standards.
5. ELECTRIC UTILITIES
Licensee shall install, at its own cost, a separate electrical panel
and meter for Licensee's Equipment and the Antenna Facilities and shall be
responsible to the local electric utility for the electrical costs attributable
to such Licensee's Equipment and Antenna Facilities. Licensor shall use
reasonable efforts to notify Licensee in advance of any planned utility outages
which may interfere with Licensee's use. Licensee further agrees that Licensor
has no obligation or responsibility to provide emergency or "backup" power to
Licensee, and Licensee acknowledges that any such provision of emergency or
"backup" power shall be the sole responsibility of Licensee.
6. CONSTRUCTION
6.1 Prior to the commencement of any work, Licensee shall, at
its sole cost and expense, prepare and deliver to Licensor working drawings,
plans and specifications, which shall provide the information specified in and
be consistent with Exhibits G 1 though 5 attached hereto, detailing the location
and size of Licensee's Equipment, Antenna Facilities, Rooftop Space, Equipment
Room and Building Communications Spaces, all specifically describing the
proposed construction and work. No work shall commence until Licensor has
approved, in writing, Exhibits G 1 through 4, and any other applicable
construction or installation plans, which approval shall not be unreasonably
withheld or unduly delayed. Approval or disapproval and required changes and
conditions shall be delivered to Licensee within twenty (20) working days after
the receipt of the complete set of such plans from Licensee. In no event shall
Licensor's approval of such plans be deemed a representation that Licensee's
Equipment or Antenna Facilities will not cause interference with other systems
in the Building or that Licensee's plans comply with applicable laws, rules or
regulations or a representation regarding the design of such plans, and all of
such responsibility shall remain with Licensee.
6.2 Licensee understands and agrees that the structural
integrity of the load bearing capability of the roof of the Building, the
moisture resistance of the Building membrane, and the ability of Licensor to use
all parts of the roof of the Building are of critical importance to Licensor.
Licensee, therefore, agrees that the specifications and plans that it will
provide shall be of sufficient specificity to ensure that these concerns are
protected, and Licensee further agrees and commits that the actual installation
of Licensee's Equipment and the Antenna Facilities shall be in accordance with
those specifications. Licensee shall use the roofing contractor or subcontractor
designated by Licensor to perform any work affecting the structural integrity or
the load bearing capability of the roof or the moisture resistance of the
Building membrane.
Exhibit G, Page 4
6.3 Licensee warrants that the installation of Licensee's
Equipment and the Antenna Facilities shall be in strict compliance with the
approved plans and specifications prepared in connection with Exhibits G 1
through 4 as attached hereto.
6.4 Licensee agrees that installation and construction shall be
performed in a neat, responsible, and workmanlike manner, using generally
accepted construction standards, and consistent with such reasonable
requirements as shall be imposed by Licensor. Licensee shall, at its sole cost
and expense, repair or refinish any surface of the Building that is damaged by
or during the installation of Licensee's Equipment and/or the Antenna Facilities
and caused by Licensee or any of its agents, representatives, employees,
contractors, subcontractors, or invitees. If Licensee fails to repair or
refinish any such damage, Licensor may, in its sole discretion, repair or
refinish such damage and Licensee shall reimburse Licensor for all costs and
expenses incurred in such repair or refinishing.
6.5 Licensee shall label each cable placed in the
telecommunications pathways, in each telephone closet through which said cables
pass, with identification information including, but not limited to, Licensee's
name (to serve as identification), floor where cable originates and floor where
cable terminates and any other information as may be reasonably required by
Licensor's Building rules.
6.6 Licensee shall obtain, at its sole cost and expense, prior
to construction and work, all necessary federal, state, county and local
permits, licenses and approvals, copies of which shall be delivered to Licensor
prior to commencement of construction and work. Licensee's Equipment shall
comply with all applicable safety standards, as modified from time to time, of
any governing body with jurisdiction over Licensee's operations. Licensee shall
prominently label any equipment with appropriate safety warnings when human
exposure to Radio Frequency radiation may exceed any applicable safety
standards.
6.7 Licensee shall not during construction or otherwise, in
Licensor's sole and reasonable judgment, block access to or in any way obstruct,
interfere with or hinder the use of the Building's loading docks, the sidewalks
around the Building or any entranceways thereto. If such conditions shall occur,
Licensee shall take corrective action as promptly as feasible, but in no event
more than twenty-four (24) hours following notice by Licensor of such
conditions.
6.8 Subject to the express written consent of the Landlord,
which consent shall not unreasonably be withheld, Licensee shall have the right
to amend Exhibits G 1 though 4 from time to time to substitute new equipment in
place of equipment previously installed by Licensee, but not to increase the
size or intensity of use of the Rooftop Space, the Building Connecting Spaces or
the Equipment Room.
6.9 Licensee shall ensure that the installation, maintenance,
and operation of Licensee's Equipment and the Antenna Facilities shall not
interfere with the operation of communications devices by Licensor, or by other
lessees or licensees of the Licensor in which existed in the Building either
prior to the Commencement Date, or prior to the date of any permitted changes
pursuant to Section 6.8 above.. In order to avoid such interference, Licensee
shall, at its own expense, prepare and conduct an evaluation of the potential
for such interference
Exhibit G, Page 5
before installing and operating, and before modifying, Licensee's Equipment and
the Antenna Facilities, and shall submit a copy of such findings to Licensor
within ten (10) days of such evaluation and testing.
6.10 The parties recognize that this License contemplates
installation and use by multiple entities or licensees seeking to place antenna
or telecommunication systems in or upon the Building. Licensee shall use its
best efforts to coordinate its activities with those other such entities or
licensees for the purpose of reducing the costs of all such parties and to avoid
interference with each such party's realization of the benefits of this and
similar Licenses. To the extent that Licensor deems reasonably necessary,
Licensor shall coordinate any such cooperative efforts.
7. LICENSEE'S COVENANTS
7.1 Licensee, through its designated and approved employees and
contractors, shall be solely responsible for the maintenance and care of
Licensee's Equipment and the Antenna Facilities and shall maintain the same in a
clean, sanitary and safe condition and in good repair and free of any defects at
all times during this License. Licensee, at its sole expense and risk, shall
ensure that a physical inspection of the rooftop portion of the Antenna
Facilities occurs at intervals of no more than twelve (12) months and that this
inspection include a survey of structural integrity and water tightness and a
review and correction of any loose bolts, fittings or other appurtenances.
Licensee shall provide a written certification of such inspections to Licensor
not more than ten (10) days following each such inspection. In the absence of
such a certification, Licensor shall have the right (but not the obligation) to
conduct or arrange for such an inspection and corrective action and to charge
Licensee for such costs.
7.2 Licensee shall, at its sole cost and expense, repair any
damage to the Building, Rooftop Spaces, Building Communications Spaces, and/or
to any other property owned by Licensor or by any lessee or licensee of Licensor
or by any other occupant of the Building where such damage is caused by Licensee
or any of its agents, representatives, employees, contractors, subcontractors,
or invitees. If Licensee fails to repair or refinish any such damage, Licensor
may, in its sole discretion, repair or refinish such damage and Licensee shall
reimburse Licensor for all costs and expenses incurred in such repair or
refinishing.
7.3 Licensee shall not interfere with the use and enjoyment of
the Building by Licensor or by other lessees or licensees of the Licensor or
other tenants or occupants of the Building. If such interference shall occur,
Licensor shall give Licensee written notice thereof and Licensee shall correct
the same within twenty-four (24) hours after receipt of such notice. In the
event Licensee fails to correct such conditions after the stated notice and cure
period, Licensor reserves the right to take any reasonable actions to correct
the same.
7.4 Licensee's Equipment shall not disrupt, adversely affect or
interfere with other providers of communications services in the Building or
with any tenant's or occupant's use or operation of communications or computer
devices. Licensee shall not install or maintain any Licensee's Equipment or
Antenna Facilities of the type or frequency which causes or will cause any
interference to the Building elevators, fire alarm system, or any other Building
safety system
Exhibit G, Page 6
or equipment of Licensor, systems or equipment of tenants of Licensor or any
other neighboring property. Following the installation of Licensee's Equipment
and the Antenna Facilities, Licensee shall, at its own expense, prepare and
conduct an evaluation of the potential for such interference within ninety-six
(96) hours if requested to do so by Licensor, whether upon Licensor's own behalf
or as a result of concerns expressed by any lessees or licensees. Licensor shall
have the right to engage outside consultants to resolve interference issues
arising between licensees or tenants operating equipment on the roof, and
between Licensor's licensees and off-premises operators. Licensor shall have the
absolute right to require all its licensees to implement any such consultant's
recommendations for resolution of interference problems. Licensee shall correct
such interference within twenty-four (24) hours after receiving written notice
of such disruption, adverse affect, or interference. Licensor reserves the right
to disconnect power to any such Licensee's Equipment or the Antenna Facilities
where Licensee fails to correct such interference after the stated notice and
cure period.
7.5 Licensee further understands and agrees that the aesthetic
characteristics of the Building are of significant commercial importance to
Licensor and, therefore, commits to ensuring that the installed appearance of
Licensee's Equipment will be consistent with the specifications set forth in
Exhibits G 1 though 5. Licensee further agrees that, at no time during the
period of this License, will it use or permit the use of Licensee's Equipment or
its Antenna Facilities in ways that are inconsistent with those plans (as they
may from time to time be amended with the consent of Licensor) or for the
display of advertising or other visual displays with more than insignificant
aesthetic impacts.
7.6 Licensee agrees to comply with all Building Rules (Exhibit
G-6), as adopted and altered by Licensor from time to time, and will cause its
agents, employees, contractors, invitees and visitors to do so.
7.7 [Intentionally omitted].
7.8 Licensee agrees that Licensor shall not be liable for damage
to Licensee's Equipment or for theft, misappropriation or loss thereof, unless
due to Licensor's gross negligence or willful misconduct.
7.9 Licensee agrees to comply with all applicable laws, rules
and regulations of the FCC and other applicable local, county, state, and
federal laws, codes, rules and regulations (collectively, "Laws") pertaining to
the installation and operations of Licensee's Equipment.
8. ACCESS
8.1 Licensor agrees that Licensee's authorized representatives
shall have access to the Rooftop Space and Equipment Room at all times, for the
purposes of installing, maintaining, operating and repairing Licensee's
Equipment and Licensor further agrees to give Licensee ingress and egress to the
Building Communications Spaces during the term of this License, including
non-exclusive use of an elevator. It is agreed, however, that only authorized
engineers, employees or properly authorized contractors, subcontractors, and
agents of Licensee, other authorized regulatory inspectors, or persons under
their direct supervision and control will be
Exhibit G, Page 7
permitted to enter the Building Communications Spaces, and only upon conditions
set forth herein. Licensee further agrees to keep to a minimum the number of
personnel visiting the Building and the frequency of the visits.
8.2 Except in the event of an emergency, Licensee agrees to give
at least twenty-four (24) hours written notice to Licensor of its intent to
enter the Building Communications Spaces and the Rooftop Spaces. At the time
that such notice is given, Licensee shall inform Licensor of the names of the
persons who will be accessing the Building Communications Spaces and the Rooftop
Spaces, the reasons for entry, and the expected duration of the work to be
performed. Licensee shall provide such information substantially in the form
attached hereto as Exhibit G-7 whenever feasible. In the event of an emergency,
Licensee shall give to Licensor as much advance notice as reasonably possible of
its intent to enter the Building Communications Spaces and the Rooftop Spaces
and, within twenty-four (24) hours following such entry, shall provide to
Licensor a written report detailing the nature of such emergency, the corrective
actions taken, and other such information as contained in Exhibit G-7.
8.3 Permission for all entries upon the Building Communications
Spaces and the Rooftop Spaces (including entries for maintenance and/or
installation) must be received from Licensor in writing and in advance, unless
such entry is of an emergency nature and permission cannot be obtained in a
timely fashion. In the case of any emergency, Licensee shall call the emergency
pager number provided to Licensee by Licensor. Licensor shall not be obligated
to provide elevator service during emergency situations and under emergency
conditions, which emergency situations and conditions shall be reasonably
determined by Licensor.
8.4 Licensor and its representatives shall have the right to
enter the Equipment Room and Rooftop Spaces for any of the following purposes;
provided, however, that (except in the event of an emergency) Licensor shall
give Licensee at least twenty-four (24) hours advance written notice before
entry and use reasonable efforts to minimize any interference with Licensee's
operations or Licensee's Equipment: (i) to maintain the Equipment Room, Rooftop
Spaces and the Building; (ii) to make inspections, repairs, alterations,
improvements or additions, in or to the Equipment Room and the Rooftop Spaces;
(iii) to perform any acts related to the safety, protection, preservation, or
improvement of the Equipment Room, the Rooftop Spaces or the Building; and (iv)
for such other purposes as Licensor deems reasonably necessary.
9. INSURANCE
In addition to the insurance required by the lease, Licensee shall maintain
Commercial General Liability Insurance, written on an "occurrence form" basis,
with limits of not less than $3,000,000 in the aggregate and for each
occurrence, and not excluding from coverage claims related to electromagnetic
fields (EMF) or use of equipment for transmission of information, whether via
microwave radio, satellite radio, infrared, laser, or other telecommunications
technology; and Commercial Property Insurance providing coverage on an "all
risk" or "special form" basis, in an amount equal to the full replacement cost
of Licensee's Equipment. Licensee's insurance shall include as additional
insured all parties required to be additional insureds under the Lease; the
endorsement effecting such additional insured status shall be at least as broad
as additional insured endorsement form number CG ▇▇ ▇▇ ▇▇-▇▇ promulgated by
Exhibit G, Page 8
the Insurance Services Office. The insurance maintained by Licensee under the
Lease, if such insurance meets all of the additional requirements imposed under
this Section 9, shall satisfy the covenant to maintain insurance.
10. INDEMNIFICATION
Licensee agrees to indemnify, defend, protect and hold harmless
Licensor and its property management company for the Building and their
respective officers, directors, partners, members, managers, shareholders,
employees, contractors, and agents (each an "Indemnitee") against all claims,
suits, actions, injuries, liabilities, losses, costs, expenses and damages,
including court costs and consultants', expert witnesses' and attorneys' fees
(as applicable, a "Claim") directly, indirectly or allegedly arising out of or
resulting from, in whole or in part, any act or omission of Licensee, including
any contractor or supplier, anyone directly or indirectly employed by any of
them or anyone for whose acts they may be liable, in connection with the
construction, installation, operation, use, maintenance, repair and removal of
Licensee's Equipment and the Antenna Facilities or from Licensee's breach of
this License, but excluding, individually with respect to each Indemnitee, any
Claims to the extent they are proven by a final judgment to have been caused by
the sole negligence or willful misconduct of that Indemnitee. Licensee, at its
sole expense, shall promptly and diligently handle, defend and dispose of all
Claims and shall promptly reimburse any Indemnitee in cash upon demand for all
amounts it incurred in connection with any Claims; provided, however, that in no
event shall Licensee be obligated to indemnify an Indemnitee for Claims which
arise out of or result from the sole negligence or willful misconduct of that
Indemnitee. Licensee agrees that its indemnification obligations shall not be
limited in any way by any limitation on the amount or type of damages,
compensation or benefits payable to or for any third party under any worker
compensation, disability benefit or other employee benefit acts. These
indemnification provisions shall apply and be enforced to the fullest extent
permitted by law, and shall apply to the active (but not sole) negligence of
each Indemnitee. The provisions of this Section 10 shall survive termination of
this License insofar as Claims filed prior to, or within three (3) years, of the
expiration or termination of the License.
11. TAXES
Licensee shall pay, when due, either directly or by reimbursement to
Licensor, all taxes, fees and assessments of any type assessed against any and
all of Licensee's Equipment, the Antenna Facilities and any other improvements
installed by Licensee at the Building. Licensor shall be responsible for all
real property taxes and other taxes, fees and assessments attributable to the
Building. Notwithstanding the foregoing, Licensee shall reimburse Licensor for
that portion of any increase in the real property taxes for the Building that is
based upon Licensee's Equipment, provided that Licensor shall deliver reasonable
documentation from the taxing authority verifying the amounts due from Licensee.
Exhibit G, Page 9
12. DEFAULT AND REMEDIES
Any Event of Default under the Section 15.1 (Events of Default) of the Lease
shall be a default under this License; in addition, the following provisions
shall each be an "Event of Default" under this License and the Lease:
(a) Licensee's failure to correct as soon as possible, and in all events
within two (2) business days after receiving written notice thereof
from Licensor, any interference with the ability of Licensor or any
tenants or occupants of the Property to communicate in any manner, as
provided in Section 7.4 of this License.
(b) Licensee's failure to obtain or revocation of Licensee's permission to
operate any of Licensee's Equipment, when such permission is required
to be obtained from any Federal, state or local government entity or
from any private organization.
(c) Licensee's failure to comply with any other provision of this License,
where such failure continues beyond any applicable notice and cure
period specified in Section 15.1(g) of the Lease.
13. TERMINATION/REMEDIES
13.1 Upon or after the occurrence of an Event of Default, the
non-defaulting party may elect to terminate this License and it may ▇▇▇ for any
other damages to which the non-defaulting party may be entitled at law or in
equity
13.2 At the expiration or earlier termination of this License
(the "Termination Date") Licensee shall, at Licensee's sole cost and expense,
without liens, remove Licensee's Equipment and all of Licensee's personal
property from the Building. If Licensee does not remove all of Licensee's
Equipment and all of Licensee's personal property installed pursuant to this
License (as distinguished from personal property of Tenant remaining in the
Building, the disposition of which property in the Building shall be governed by
the applicable provisions of the Lease) from the Building by the Termination
Date, Licensor shall have the right (but not the obligation) to remove the same,
and Licensee shall pay Licensor on demand for all costs of removal and storage
thereof, and shall in addition pay as a License Fee until such Licensee's
Equipment is removed twice the License Fee payable in the last full month prior
to the termination from the Termination Date through the end of the time such
Licensee's Equipment is actually removed. Licensor shall also have the right,
without any compensation to Licensee, to retain or dispose of all or any portion
of such property if Licensee does not pay all such costs and retrieve the
property prior to the earlier of (x) sixty (60) days after the Termination Date
or (y) ten (10) days after notice from Licensor (in which event title to all
such property described in Licensor's notice shall at Licensor's election be
transferred to and vest in Licensor). As of the Termination Date, neither party
shall have any claim against the other, except for claims or obligations that
may have arisen or accrued prior to such termination or arise by reason of such
Licensee's Equipment and other equipment or property removal, which claims or
obligations shall survive such termination. Further, Licensee agrees, at its
sole cost and expense, to repair or refinish all damage caused by the operation
or removal of Licensee's Equipment, excepting damage caused by ordinary wear
Exhibit G, Page 10
and tear or casualty which is neither caused by Licensee nor contributed to by
Licensee. If any of the improvements installed or constructed by Licensee at the
Building penetrated the roof membrane or otherwise in any way affected the
watertight integrity of the Building's roof, then upon removal of such
improvements, Licensee shall provide Licensor with a written warranty, in a form
and from a contractor reasonably acceptable to Licensor, warranting the
watertight integrity of those areas of the roof which are (a) in the Rooftop
Space or (b) affected by such removal and are in the vicinity of the Rooftop
Space, after removal of such improvements, for a period equal to the remaining
useful life of the existing roof at the time of such removal. If Licensee fails
to repair or refinish any such damage, Licensor may, in its sole discretion,
repair or refinish such damage and Licensee shall reimburse Licensor for all
costs and expenses incurred in such repair or refinishing.
13.3 Licensee shall not have the right to hold over at any time
and Licensor may exercise any and all remedies at law or in equity to recover
possession of the Rooftop Space, the Equipment Room and Building Communications
Spaces, as well as any damages incurred by Licensor due to Licensee's failure to
vacate the Rooftop Space, the Equipment Room and Building Communications Spaces
and deliver possession to Licensor as required by this License. If Licensee
holds over after the Termination Date with Licensor's prior written consent,
Licensee shall, unless and until the parties agree otherwise in writing, pay
monthly not less than 150% of the monthly License Fees payable during the last
year of the Term and Licensee will be bound by all of the other terms, covenants
and conditions of this License as the same may apply to a month-to-month
license. If Licensee holds over after the Termination Date without Licensor's
prior written consent, Licensee shall be deemed a licensee at sufferance, at
daily License Fees, payable in advance, equal to 200% of the License Fees per
day payable during the last year of the Term, and Licensee will be bound by all
of the other terms, covenants and conditions of this License as the same may
apply to a licensee at sufferance.
13.4 In the event of a Licensee Event of Default or a Licensor Event of
Default, as the case may be, the non-defaulting party shall have all rights
available in equity or at law. Neither party shall be liable to the other party
for any indirect, special, incidental, or consequential damages, including lost
profits, provided, however, that the foregoing exclusion shall not apply to any
damages suffered, incurred or paid by Licensor with respect to which Licensee is
obligated to indemnify Licensor under this License.
14. LICENSE ONLY
This License creates a license only and Licensee acknowledges and
agrees that Licensee does not have and shall not claim at any time any interest
or estate of any kind, nature or extent whatsoever in the Building, the Rooftop
Space, Building Communications Spaces or the Equipment Room by virtue of this
License or Licensee's use of the Rooftop Space, Building Communications Spaces
or the Equipment Room pursuant hereto. In connection with the foregoing,
Licensee further acknowledges that in no event shall the relationship between
Licensor and Licensee be deemed to be a landlord-tenant relationship and that in
no event shall Licensee be entitled to avail itself of any rights afforded to
tenants under the laws of the state in which the Building is located.
Exhibit G, Page 11
15. SUCCESSORS IN LICENSOR'S INTEREST/LIMITATION OF LIABILITY
15.1 The terms, covenants and conditions contained in this License
shall bind and inure to the benefit of Licensor and Licensee and, except as
otherwise provided in this License to the contrary, their respective heirs,
distributees, executors, administrators, successors and assigns.
15.2 Licensor shall be entitled to assign this License to any party
without Licensee's consent. The obligations of Licensor under this License shall
no longer be binding upon Licensor in the event that Licensor sells, assigns or
otherwise transfers its interest in the Building as owner or lessee (or upon any
subsequent licensor after the sale, assignment or transfer by such subsequent
licensor). In the event of any such sale, assignment or transfer, such
obligations shall thereafter be binding upon the grantee, assignee or other
transferee of such interest, and any such grantee, assignee or transferee, by
accepting such interest, shall be deemed to have assumed such obligations. A
lease of the entire Building shall be deemed a transfer within the meaning of
the foregoing sentence.
15.3 Neither the members, managers, partners (direct or indirect)
comprising Licensor, nor the shareholders of Licensor (nor any of the members,
managers, partners or shareholders comprising same), nor any of the members,
managers, partners, shareholders, directors or officers of any of the foregoing,
nor any agent or person acting on Licensor's or such person's behalf
(collectively, the "Licensor's Parties") shall be personally liable for the
performance of Licensor's obligations under this License. Licensee shall look
solely to Licensor to enforce Licensor's obligations hereunder and shall not
seek any damages against any of the Licensor's Parties. Notwithstanding anything
contained in this License to the contrary, Licensee acknowledges and agrees that
Licensee shall look solely to the estate and interest of Licensor, its
successors and assigns, in the Building, and the real property on which it is
situated, for the collection of any judgment recovered against, or liability of,
Licensor by reason of Licensor's breach of this License or otherwise, and no
other property or assets of Licensor or any of Licensor's Parties shall be
subject to levy, execution, or other enforcement procedures for the satisfaction
of Licensee's remedies under or with respect to either this License, the
relationship of Licensor and Licensee hereunder, or Licensee's use of space
licensed to Licensee hereunder.
Exhibit G, Page 12
EXHIBIT G-1
ATTACHED TO AND FORMING A PART OF
EXHIBIT G - ANTENNA LICENSE
TO LEASE AGREEMENT
DATED AS OF MARCH 10, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD/LICENSOR
AND
INKTOMI CORPORATION, AS TENANT/LICENSEE
ANTENNA CHARACTERISTICS
I. Building Name:
----------------------------
Address:
-----------------------------------
Contact Name:
---------------------
Telephone:
---------------------
Pager:
---------------------
Fax:
---------------------
II. Licensee Data
Company Name: ---------------------
Address: ---------------------
---------------------
Contact Name: ---------------------
Telephone: ---------------------
Pager: ---------------------
Fax: ---------------------
III. Describe the intended use and purpose for these facilities. This
should be stated as specifically as possible. In general, there are three
different types of uses and purposes: (a) to serve tenants within the Building;
(b) to serve the communication needs of Licensee within the Building; and (c) to
allow Licensee to provide wireless communications outside the Building.
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Exhibit G-1, Page 1
IV. Please furnish the following information (normally found on the
relevant FCC license for operation) by completing the form below. Supply all
information that is appropriate for your facilities, including:
o Frequencies of all transmitters, receivers, and antennas.
o Power levels and emission types for all transmitters.
o Azimuth of all antennas.
o Effective radiated power for all transmit antennas.
o Make, model and serial number of all transmitters, receivers, antennas and
associated equipment such as circulators, combiners, and cavities.
Please include an engineering plan and specification for the physical components
and design of the antenna and associated equipment as it will be installed.
This engineering plan and design should be of sufficient specificity to ensure
that the weight, bearing requirements, wind-load characteristics, power
requirements, and aesthetic impacts of the facilities can be reviewed and to
ensure against adverse effects upon the structural integrity of the Building,
the moisture resistance of the Building membrane, or the operations of
pre-existing communications facilities and equipment.
1. ANTENNAS INSTALLED
VHF Whips:
------------------------
VHF Dipole Arrays:
------------------------
VHF Other:
------------------------
UHF Whips:
------------------------
UHF Dipole Arrays:
------------------------
Microwave ___-foot dish:
------------------------
Satellite R/O Antenna:
------------------------
Satellite T/R Antenna:
------------------------
Other:
------------------------
2. TRANSMITTERS INSTALLED
VHF:
------------------------
UHF:
------------------------
Microwave:
------------------------
Earth Station:
------------------------
3. RECEIVERS INSTALLED
VHF:
------------------------
UHF:
------------------------
Microwave:
------------------------
Earth Station:
------------------------
4. REPEATERS INSTALLED
VHF:
------------------------
UHF:
------------------------
Exhibit G-1, Page 2
5. ANTENNA SYSTEM DETAIL
Antenna Number (to be assigned):
------------------------
Type:
------------------------
Manufacturer:
------------------------
Model Number:
------------------------
Location:
------------------------
Building Coordinates:
------------------------
Height above Floor Level:
------------------------
Physical Dimensions:
------------------------
Frequency Band:
------------------------
Gain:
------------------------
Elevation Angle (Main Lobe):
------------------------
Azimuth (Main Lobe):
------------------------
Polarization:
------------------------
Antenna Couplers
Manufacturer:
------------------------
MODEL NUMBER FREQUENCY BAND
------------ --------------
------------------------ ------------------------
------------------------ ------------------------
------------------------ ------------------------
------------------------ ------------------------
------------------------ ------------------------
------------------------ ------------------------
Cable/Waveguide Type:
------------------------
Length:
------------------------
Building Entry Point:
------------------------
Description of Cable Path:
------------------------
Number of Transmitters:
------------------------
Number of Receivers:
------------------------
Number of Repeaters:
------------------------
6. TRANSMITTER DETAIL
Antenna Number:
------------------------
Transmitter Number:
------------------------
Licensee Name:
------------------------
Licensee Address:
------------------------
------------------------
------------------------
Station Name:
------------------------
Emission Designator:
------------------------
Station Call Sign:
------------------------
Exhibit G-1, Page 3
Station Class:
------------------------
Power Output (▇▇▇▇▇):
------------------------
Manufacturer:
------------------------
Model Number:
------------------------
Main Serial Number:
------------------------
Operating Frequency:
------------------------
Frequency Stability:
------------------------
Physical Dimensions
------------------------
Weight:
------------------------
Location:
------------------------
Building Coordinates:
------------------------
7. RECEIVER DETAIL
Antenna Number:
------------------------
Receiver Number:
------------------------
Licensee Name:
------------------------
Licensee Address:
------------------------
------------------------
------------------------
Station Name:
------------------------
Station Call Sign:
------------------------
Station Class:
------------------------
Manufacturer:
------------------------
Model Number:
------------------------
Main Serial Number:
------------------------
Operating Frequency:
------------------------
Physical Dimensions:
------------------------
Weight:
------------------------
Location:
------------------------
Building Coordinates:
------------------------
Exhibit G-1, Page 4
EXHIBIT G-2
ATTACHED TO AND FORMING A PART OF
EXHIBIT G - ANTENNA LICENSE
TO LEASE AGREEMENT
DATED AS OF MARCH 10, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD/LICENSOR
AND
INKTOMI CORPORATION, AS TENANT/LICENSEE
ROOFTOP PLAN
Exhibit G-2, Page 1
EXHIBIT G-3
ATTACHED TO AND FORMING A PART OF
EXHIBIT G - ANTENNA LICENSE
TO LEASE AGREEMENT
DATED AS OF MARCH 10, 2000, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD/LICENSOR
AND
INKTOMI CORPORATION, AS TENANT/LICENSEE
EQUIPMENT ROOM PLAN
Exhibit G-3, Page 1
EXHIBIT G-4
ATTACHED TO AND FORMING A PART OF
EXHIBIT G - ANTENNA LICENSE
TO LEASE AGREEMENT
DATED AS OF MARCH 10, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD/LICENSOR
AND
INKTOMI CORPORATION, AS TENANT/LICENSEE
CONNECTING EQUIPMENT AND BUILDING COMMUNICATIONS SPACES
Exhibit G-4, Page 1
EXHIBIT G-5
ATTACHED TO AND FORMING A PART OF
EXHIBIT G - ANTENNA LICENSE
TO LEASE AGREEMENT
DATED AS OF MARCH 10, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD/LICENSOR
AND
INKTOMI CORPORATION, AS TENANT/LICENSEE
SITE TECHNICAL STANDARDS
SITE TECHNICAL STANDARDS FOR TELECOMMUNICATIONS LICENSEES
Construction approval PRIOR TO THE START OF ANY CONSTRUCTION, THE FOLLOWING
ITEMS MUST BE PROVIDED BY THE CONTRACTOR TO THE PROPERTY MANAGER, CHIEF ENGINEER
AND REGIONAL ENGINEERING MANAGER FOR APPROVAL. THE APPROVAL PROCESS MAY TAKE
ANYWHERE FROM THREE DAYS TO TWO WEEKS BASED ON WORKLOAD, PROJECT SOPHISTICATION,
COMPLETENESS OF ITEMS PRESENTED, ETC., SO PLEASE ALLOW ADEQUATE TIME FOR REVIEW.
o Project Design Overview Manual, which includes a minimum of the following:
o Written description of project as designed (Project Design Overview)
o Estimated installation schedule in ▇▇▇▇▇ chart format
o Copy of the contract (include detailed scope of work) between approved
electrical contractor for building and Telecom service provider
o Detailed floor plans, minimum of 8 1/2" x 11", of each floor showing
locations of proposed riser, and any proposed pull boxes, junction
boxes, etc. and all cabling.
o One line schematic riser diagram showing locations of equipment and
junction boxes on a minimum of 8 1/2" x 11" paper
o Detailed riser closet layouts showing existing core locations and
proposed core locations
o Cable schedule showing length of cable runs, type and amount of cable
in each run
o Detailed plans, minimum of 8 1/2" x 11", showing POP room layout and
proposed locations of all equipment, electrical panels, backup power
equipment, cable and system racks, electric meter locations, exterior
walls and wall types, access locations, etc.
o Cut sheets for each piece of proposed equipment that makes up the
riser, electrical and junction boxes, connectors, support straps,
termination boxes, cable trays, alarm systems, etc.
o Cut sheets for all patching, caulking, flashing, sealing products
o Cut sheets for all antenna components including antennas, mounting
hardware and brackets, exterior grade conduits, etc.
o Copies of all certificates of insurance as required in Project Contract
o Copy of permits as required for construction
o List of subcontractors' names and 24-hour emergency phone numbers.
Exhibit G-5, Page 1
INTERIOR CONSTRUCTION AND ACCEPTABLE MATERIALS The following items are minimum
design and installation standards for all interior and protected locations.
1. At the Owner/Managers sole discretion and in the best interest of space
allocation and availability, no single Telecommunications vendor will be
provided with more than one (1) three inch (3") riser through the building,
unless special permission is granted in advance, in writing.
2. All core sleeves, horizontal and vertical, throughout building at floors,
and through the fire rated assemblies, and into the tenant spaces will be
in EMT conduit.
3. All conduit penetrations through rated assemblies will extend at least six
inches past the rated assembly on both sides of walls.
4. All penetrations through fire rated assemblies will be fire caulked.
5. All cable runs not enclosed in conduit must be plenum rated.
6. Following all concrete penetrations through walls and floors, seal all
penetrations using non-iron bearing, chloride free, non-shrinking, dry
pack, grouting compound. All coring must be approved in advance by Property
Management, be performed after normal business hours, and may require
x-raying.
7. All conduits, cables and boxes will be run, located, and supported per code
and as approved, so as not to interfere or obstruct any existing conduit
runs, boxes, punch down blocks, etc., or access and rated clearance to the
above. In addition, all conduit and cable runs, junction or pull boxes,
terminal boxes, etc. will be located in a symmetrical manner with building
lines as to minimize interference with future conduit runs, junction or
pull boxes, terminal boxes, etc.
8. Contractor shall install, at their own cost, a separate electrical panel
and meter for their equipment and antenna facilities, lighting,
ventilation, etc. The building will monitor the contractors monthly
electrical usage and ▇▇▇▇ according to consumption on a monthly basis.
9. Set all cabinets plumb and symmetrical with building lines. All cabinets
shall be anchored and braced to code, and meet all Seismic-bracing
requirements. Mount all surface mounted cabinets with a minimum of four
anchors. Provide additional support backing on sheet-rock walls prior to
installation of cabinets to ensure adequate support.
10. Do not fasten supports to piping, ductwork, mechanical equipment, or
conduits.
11. Do not drill structural steel members unless first approved by Structural
Engineer and Building Engineer.
12. Clearly ▇▇▇▇ all junction boxes, pull boxes, electrical panels, etc., with
felt tip indelible marker or other acceptable means as directed by Building
Engineer, to clearly identify use of cabinet, location of cable
origination, and location were cable terminates.
13. Clearly, ▇▇▇▇ all electrical panel circuits being fed from panel on panel
label inside panel door.
14. Should fire sprinkler systems need to be relocated or modified to meet
building codes due to this installation, all changes will be designed by
licensed fire sprinkler engineer and installed to code for all effected
areas.
15. All ventilation or cooling must be installed per code as designed by owners
selected mechanical engineer. All penetrations through fire rated
assemblies must have the proper fire/smoke dampers, integrated controls
with fire alarm system, etc., as required.
Exhibit G-5, Page 2
16. No wet cell batteries will be allowed without specific written permission
from owner. Should wet cell batteries be considered, hydrogen gas sensors
will be installed and tied to fire alarm system for proper building
protection.
17. No local audible alarms will be allowed within equipment space unless
specifically approved by building manager in writing.
18. Any requirements for emergency generator backup power or connection to
existing emergency generator will require additional review and scope of
work not covered under this License. If this is required, please contact
Director of Engineering at Cornerstone Properties at ▇▇▇-▇▇▇-▇▇▇▇.
19. During the site walk, it is the contractor's responsibility to ask for and
obtain any appropriate documentation related to Environmental and Safety
issues at each property and provide a copy of the proposed procedure for
dealing with any issues at the time of project review. All construction
work performed at the property will be done according to all applicable
Environmental and Safety Standards as required by local, state, federal
code and Cornerstone Company policy. This includes potential environmental
issues such as Asbestos, PCB's, SB 198, etc.
20. All locks installed at property will be keyed to the Building's Master key
and any other combination as approved by Property Manager and Building
Engineer.
EXTERIOR CONSTRUCTION AND ACCEPTABLE MATERIALS The following items are design
and installation minimum standards for all exterior and non-protected locations.
1. For all roof penetrations, furnish and install roof flashing,
counter-flashing and pitch pockets, as needed, to protect roof membrane and
water leakage to areas below.
2. All waterproofing penetrations will be designed by roofing or waterproofing
consultant as approved by the owner, and paid for by the contractor. All
penetrations will be sealed using the consultants approved products and
procedures as approved by the owner. All materials and procedures used will
be in full compliance with and accepted by the roofing or waterproofing
manufacturer as needed to protect all in-place warranties.
3. All equipment installed on roof will be designed to withstand a minimum of
150 mile per hour wind loads.
4. Locations of antenna equipment will be carefully selected to allow for
minimized architectural impact. Equipment screens, architectural barriers,
and special permitting may be required based on proposed location, size and
type of installations. Specific antenna location approval may take longer
than other approvals. Provide options for antenna locations or relocation
and show options on plan set in design manual.
5. Contractor shall ensure that the installation, maintenance and operation of
the contractors equipment and antenna facilities shall not interfere with
the operation of window washing equipment and systems, rigging locations,
communication devices for building management and tenants, leased space
communication equipment, etc.
PROJECT CLOSEOUT Prior to final completion and acceptance, the following items
must be addressed to the owner's satisfaction.
1. Walk project with Property Manager and Building Engineer to develop punch
list.
2. Complete punch list of items to Manager and Engineer's satisfaction
3. Provide as-built drawings of all riser and equipment locations.
Exhibit G-5, Page 3
4. Provide owner with a copy of the warranties for the following;
Manufacturer's 20-year extended Fiber Optic warranty, and roof membrane or
caulking warranties that coincide with existing warranties for same.
5. Billing address and account number to ▇▇▇▇ electrical usage.
Exhibit G-5, Page 4
EXHIBIT G-6
ATTACHED TO AND FORMING A PART OF
EXHIBIT G - ANTENNA LICENSE
TO LEASE AGREEMENT
DATED AS OF MARCH 10, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD/LICENSOR
AND
INKTOMI CORPORATION, AS TENANT/LICENSEE
BUILDING RULES AND REGULATIONS
BUILDING RULES AND REGULATIONS FOR TELECOMMUNICATIONS LICENSEES
The following Building Rules are additional provisions of the foregoing
License to which they are attached. The capitalized terms used herein have the
same meanings as these terms are given in the License.
1. USE OF COMMON AREAS. Licensee will not obstruct the sidewalks,
halls, passages, exits, entrances, elevators or stairways of the Building
("COMMON AREAS"), and Licensee will not use the Common Areas for any purpose
other than ingress and egress. The Common Areas, except for the sidewalks, are
not open to the general public and Licensor reserves the right to control and
prevent access to the Common Areas of any person whose presence, in Licensor's
opinion, would be prejudicial to the safety, reputation and interests of the
Building and its tenants and licensees
2. NO ACCESS TO ROOF. Except as specifically provided and permitted in
the License, Licensee has no right of access to the roof of the Building and
will not install, repair or replace any antenna, aerial, aerial wires, fan,
air-conditioner or other device on the roof of the Building. Any such device
installed in violation of the License is subject to removal at Licensee's
expense without notice at any time. In any event Licensee will be liable for any
damages or repairs incurred or required as a result of its installation, use,
repair, maintenance or removal of such devices on the roof that violate the
terms of the License and agrees to indemnify and hold harmless Licensor from any
liability, loss, damage, cost or expense, including reasonable attorneys' fees,
arising from such violation.
3. BUILDING. No sign, placard, picture, name, advertisement or notice
visible from the exterior of the Building will be inscribed, painted, affixed or
otherwise displayed by Licensee on or in any part of the Building (including on
Licensee's Antenna Facilities) without the prior written consent of Licensor.
Licensor reserves the right to adopt and furnish Licensee with general
guidelines relating to signs in or on the Building. All approved signage will be
inscribed, painted or affixed at Licensee's expense by a person approved by
Licensor, which approval will not be unreasonably withheld.
Exhibit G-6, Page 1
4. PROHIBITED USES. The Equipment Room and Rooftop Space will not be
used for manufacturing, for the storage of merchandise held for sale to the
general public, for lodging or for the sale of goods to the general public.
Licensee will not permit any food preparation in the Equipment Room or Rooftop
Space.
5. JANITORIAL SERVICES. Licensee will not employ any person for the
purpose of cleaning the Equipment Room or Rooftop Space or permit any person to
enter the Building for such purpose, except with Licensor's prior written
consent. Licensor will not provide janitorial services to the Equipment Room and
Rooftop Space.
6. KEYS AND LOCKS. Licensor will furnish Licensee, free of charge, two
keys to each door or lock in the Equipment Room. Licensor may make a reasonable
charge for any additional or replacement keys. Licensee will not duplicate any
keys, alter any locks or install any new or additional lock or bolt on any door
of the Equipment Room or on any other part of the Building without the prior
written consent of Licensor and, in any event, Licensee will provide Licensor
with a key for any such lock. On the termination of the License, Licensee will
deliver to Licensor all keys to any locks or doors in the Building which have
been obtained by Licensee.
7. FREIGHT. Upon not less than twenty-four hours prior notice to
Licensor, which notice may be oral, an elevator will be made available for
Licensee's use for transportation of freight, subject to such scheduling as
Licensor in its discretion deems appropriate. Licensee shall not transport
freight in loads exceeding the weight limitations of such elevator. Licensor
reserves the right to prescribe the weight, size and position of all equipment,
materials, or other property brought into the Building, and no property will be
received in the Building or carried up or down the freight elevator or stairs
except during such hours and along such routes and by such persons as may be
designated by Licensor. Licensor reserves the right to require that heavy
objects will stand on wood strips of such length and thickness as is necessary
to properly distribute the weight. Licensor will not be responsible for loss of
or damage to any such property from any cause, and Licensee will be liable for
all damage or injuries caused by moving or maintaining such property.
8. NUISANCES AND DANGEROUS SUBSTANCES. Licensee will not conduct itself
or permit its employees, representatives, or contractors to conduct themselves
anywhere on or in the Building in a manner which is offensive or unduly annoying
to any tenant or other occupants or Licensor's property managers. Licensee will
not install or operate any phonograph, radio, musical instrument, or television
or other similar device in any part of the Common Areas, Equipment Room or
Rooftop. Licensee will not use or keep any foul or noxious gas or substance in
the Equipment Room permit or suffer the Equipment Room to be occupied or used in
a manner offensive or objectionable to Licensor or other occupants of the
Building by reason of noise, odors or vibrations, or interfere in any way with
tenants or other occupants of the Building or those having business therein.
Licensee will not bring or keep any animals in or about the Building. Licensee
will not use or keep in the Building any kerosene, gasoline or other combustible
fluid or material unless permitted by an express term of the License or, without
Licensor's prior written approval, use any method of heating or air conditioning
other than that supplied by Licensor.
Exhibit G-6, Page 2
9. BUILDING NAME AND ADDRESS. Without Licensor's prior written consent,
Licensee will not use the name of the Building in connection with or in
promoting or advertising Licensee's business.
10. BUILDING DIRECTORY. Licensee has no right to be listed in the
directory for the Building that is provided for the display of the name and
location of tenants.
11. WINDOWS AND WALLS. No covering of any kind shall be attached to,
hung or placed in, or used in or with any wall or window of the Building without
the prior written consent of Licensor. Licensor shall have the right to control
all lighting within the Equipment Room, Building Communication Spaces, and
Rooftop.
12. FLOOR COVERINGS. Licensee will not lay or otherwise affix linoleum,
tile, carpet or any other floor covering to the floor of the Equipment Room in
any manner except as approved in writing by Licensor. Licensee will be liable
for the cost of repair of any damage resulting from the violation of this rule
or the removal of any floor covering by Licensee or its contractors, employees
or invitees.
13. WIRING AND CABLING INSTALLATIONS. The location of burglar alarms,
smoke detectors, telephones, call boxes and other equipment affixed to the
Equipment Room shall be subject to the written approval of Licensor.
14. CLOSING PROCEDURES. Licensee shall close and lock access to the
Equipment Room and the Building Communications Spaces when such spaces are not
in use and under the surveillance of Licensee or its representatives, and shall
close access doors to the Rooftop and comply with procedures for resetting
alarms or for other security measures when leaving the Rooftop Space. Licensee
shall, assure that all water faucets, water apparatus and utilities used and not
needed for the continuing operation of Licensee's Equipment are shut off before
Licensee or its employees leave, so as to prevent waste or damage. Licensee will
be liable for all damage or injuries sustained by tenants or other occupants of
the Building or Licensor resulting from Licensee's carelessness in this regard
or violation of this rule. Licensee will keep the doors to the Building
corridors closed at all times except for ingress and egress.
15. PLUMBING FACILITIES. The toilet rooms, toilets, urinals, wash bowls
and other apparatus in the Building shall not be used for any purpose other than
that for which they were constructed and no foreign substance of any kind
whatsoever shall be disposed of therein. Licensee will be liable for any
breakage, stoppage or damage resulting from the violation of this rule by
Licensee, its employees or invitees.
16. USE OF HAND TRUCKS. Licensee will not use or permit to be used in
the Equipment Room or in the Common Areas any hand trucks, carts or dollies
except those equipped with rubber tires and side guards or such other equipment
as Licensor may approve.
17. REFUSE. No refuse pickup will be supplied by Licensor. Licensee
shall not store any trash or garbage within or about the Equipment Room or the
Building. Licensee shall itself promptly remove any trash or garbage generated
by its operations at the Building. Licensee shall
Exhibit G-6, Page 3
not place in any trash box or receptacle in any Common Area any material which
cannot be disposed of in the ordinary and customary manner of removing and
disposing of trash and garbage in the city in which the Building is located
without being in violation of any law or ordinance governing such disposal.
Licensee shall comply with the requirements of any recycling program adopted by
Licensor for the Building.
18. SOLICITING. Canvassing, peddling, soliciting and distribution of
handbills or any other written materials in the Building are prohibited, and
Licensee will cooperate to prevent the same.
19. PARKING. Licensee will use, and cause its employees,
representatives or contractors to use, all parking spaces in a manner consistent
with Licensor's directional signs and markings in the parking facility.
Specifically, but without limitation, Licensee will not park, or permit its
employees, representatives or contractors to park, in a manner that impedes
access to and from the Building or the parking facility or that violates space
reservations for handicapped drivers registered as such with the California
Department of Motor Vehicles. Licensor may use such reasonable means as may be
necessary to enforce the directional signs and markings in the parking facility,
including but not limited to towing services, and Licensor will not be liable
for any damage to vehicles towed as a result of non-compliance with such parking
regulations.
20. FIRE, SECURITY AND SAFETY REGULATIONS. Licensee will comply with
all safety, security, fire protection and evacuation measures and procedures
established by Licensor or any governmental agency.
21. RESPONSIBILITY FOR THEFT. Licensee assumes any and all
responsibility for protecting the Equipment Room and Rooftop Space from theft,
robbery and pilferage, which includes keeping doors locked and other means of
entry closed.
22. SALES AND AUCTIONS. Licensee will not conduct or permit to be
conducted any sale by auction in, upon or from the Equipment Room or elsewhere
in the Building, whether said auction be voluntary, involuntary, pursuant to any
assignment for the payment of creditors or pursuant to any bankruptcy or other
insolvency proceeding.
23. WAIVER OF RULES. Licensor may waive any one or more of these
Building Rules for the benefit of any particular tenants or occupants, but no
such waiver by Licensor will be construed as a waiver of such Building Rules in
favor of any other tenant or occupant nor prevent Licensor from thereafter
enforcing these Building Rules against any or all of the tenants and occupants
of the Building.
24. EFFECT ON LICENSE. These Building Rules are in addition to, and
shall not be construed to in any way modify or amend, in whole or in part, the
terms, covenants, agreements and conditions of the License. Violation of these
Building Rules constitutes a failure to fully perform the provisions of the
License, as referred to in Section 17 - "EVENTS OF DEFAULT".
25. NON-DISCRIMINATORY ENFORCEMENT. Subject to the provisions of the
Agreement (and the provisions of leases with respect to tenants), Licensor shall
use reasonable efforts to
Exhibit G-6, Page 4
enforce these Building Rules in a non-discriminatory manner, but in no event
shall Licensor have any liability for any failure or refusal to do so (and
Licensee's sole and exclusive remedy for any such failure or refusal shall be
injunctive relief preventing Licensor from enforcing any of the Building Rules
against Licensee in a manner that discriminates against Licensee).
26. ADDITIONAL AND AMENDED RULES. Licensor reserves the right to
rescind or amend these Building Rules and/or adopt any other and reasonable
rules and regulations as in its judgment may from time to time be needed for the
safety, care and cleanliness of the Building and for the preservation of good
order therein.
INITIALS:
Landlord
---------
Licensee
---------
Exhibit G-6, Page 5
EXHIBIT G-7
ATTACHED TO AND FORMING A PART OF
EXHIBIT G - ANTENNA LICENSE
TO LEASE AGREEMENT
DATED AS OF MARCH 10, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD/LICENSOR
AND
INKTOMI CORPORATION, AS TENANT/LICENSEE
Access Request Form
A. Mr. or Ms. , of (company), request permission
------------- ----------
to access the telecommunications equipment within the Building Spaces
of Building, on (date), at approximately (am/pm).
------------ ------------- --------
B. For the purpose of (detail below if necessary).
-------------------
The expected number of existing House cable-pairs effected by this
action is .
------------------------
C. Has the local phone company issued cable-pair assignments for
this work? (yes)/ (no).
------- ------
D. Will new or additional equipment be located within the telephone
closets? (yes)/ (no). Please describe any new/additional
------- ------
equipment being placed in the telephone closet on floor(s) .
---------------
E. Has a license been issued for this work? License # .
---------------
F. The expected duration of this visit is (hours/days).
----------------
Licensee:
------------------------------------
(Name of Company)
By:
------------------------------
(Authorized Agent)
Date:
------------------------------
Exhibit G-6, Page 1
EXHIBIT I
ATTACHED TO AND FORMING A PART OF
LEASE AGREEMENT
DATED AS OF MARCH 10, 2000
BETWEEN
PARKSIDE TOWERS CO-TENANCY, AS LANDLORD,
AND
INKTOMI CORPORATION, AS TENANT ("LEASE")
BROKER'S COMMISSION
For Broker's services in connection with this Lease, Owner shall pay to Broker
as a commission (the "Commission") the sum of the following:
(a) Seven and 00/100 Dollars ($7.00) per rentable square foot in the West
Office Building,
(b) Five and 00/100 Dollars ($5.00) per rentable square foot in the East Office
Building, and
(c) Five and 00/100 Dollars ($5.00) per rentable square foot in the First Level
Office Space.
Fifty Percent (50%) of such Commission shall be payable upon complete
execution of this Lease by Landlord and Tenant (less any portion of the
Commission paid by Landlord in connection with the Prior Lease, as defined in
this Lease). The remaining fifty percent (50%) of the Commission shall be
payable at the first Partial Rent Commencement Date (as defined in the Lease).
[HERE ENDS THE PROVISIONS OF THIS EXHIBIT I]
INITIALS:
Landlord
---------
Licensee
---------
Exhibit I, Page 1