EXHIBIT 10.34
LEASE AGREEMENT
THIS LEASE AGREEMENT is made this 20th day of March, 2000, between
ARE-2425/2400/2450 ▇▇▇▇▇▇ Bayshore LLC, a Delaware limited liability company
("Landlord"), and EQUINIX, INC., a Delaware corporation (`Tenant").
Address: ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
Premises: That portion of the Project, containing approximately 13,700
rentable square feet, as determined by Landlord, as shown on
Exhibit A, and being 100% of the rentable square footage of the
building located at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
("Building").
Project: The real property on which the building in which the Premises are
located, together with all improvements thereon and appurtenances
thereto as described on Exhibit B.
Base Rent: $3.85/rentable square Rentable Area of Premises: 13,700 sq. ft.
foot/month
Rentable Area of 98,964 sq. ft. Tenant's Share of Operating 100%
Project: Expenses:
Building's Share of the 13.84% Security Deposit: None.
Project:
Target Delivery Date: May 1, 2000
Rent Adjustment Percentage: CPI Adjustment Percentage (as defined in
Section 4) but not less than 3% nor
more than 5% annually.
Base Term: Commencing on the Delivery Date and
continuing until April 30, 2007
Permitted Use: Office and related uses consistent with
the character of the Building
Address for Rent Payment: Landlord's Notice Address:
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ Avenue, Suite 250
Suite 250 Pasadena, CA 91101 ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Accounts Receivable Attention: General Counsel
Tenant's Notice Address:
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
The following Exhibits and Addenda are attached hereto and incorporated herein
by this reference:
[X] EXHIBIT A - PREMISES DESCRIPTION [X] EXHIBIT B - DESCRIPTION OF PROJECT
[X] EXHIBIT C - WORK LETTER [X] EXHIBIT D - DELIVERY DATE
[X] EXHIBIT E - RULES AND REGULATIONS [X] EXHIBIT F - TENANT'S PERSONAL PROPERTY
[X] EXHIBIT G - ESTOPPEL CERTIFICATE [X] EXHIBIT H - NONDISTURBANCE AGREEMENT
1. Lease of Premises. Upon and subject to all of the terms and
conditions hereof, Landlord hereby leases the Premises to Tenant and Tenant
hereby leases the Premises from Landlord. The portions of the Project which are
for the non-exclusive use of tenants of the Project are collectively referred to
herein as the "Common Areas." Landlord reserves the right to modify Common
Areas, provided that such modifications do not materially adversely affect
Tenant's use of the Premises for the Permitted Use.
2. Delivery; Acceptance of Premises; Delivery Date. Landlord shall
use reasonable efforts to make the Premises available to Tenant for Tenant's
Work under the Work Letter on the Target Delivery Date ("Delivery" or
"Deliver"); provided that Tenant may not enter the Premises unless and until
Tenant has delivered to Landlord evidence of the insurance required hereby and
by the Work Letter. If Landlord fails to timely Deliver the Premises, Landlord
shall not be liable to Tenant for any loss or damage resulting therefrom, and
this Lease shall not be void or voidable except as provided herein. If Landlord
does not Deliver the Premises within 60 days of the Target Delivery Date for any
reason other than Force Majeure delays, this Lease shall be voidable by Tenant
by written notice to Landlord, and if so voided: (a) so long as Tenant is not in
default hereunder, the Security Deposit shall be returned to Tenant, and (b)
neither Landlord nor Tenant shall have any further rights, duties or obligations
under this Lease, except with respect to provisions which expressly survive
termination of this Lease. As used herein, the term "Force Majeure" shall have
the meaning set forth for such terms in Section 34. If Tenant does not elect to
void this Lease within 5 business days of the lapse of such 60 day period, such
right to void this Lease shall be waived and this Lease shall remain in full
force and effect. Nothing herein shall in any way limit Landlord's right to
terminate this Lease pursuant to Sections 18 or 19 hereof.
The "Delivery Date" shall be the date Landlord Delivers the Premises
to Tenant Upon request of Landlord, Tenant shall execute and deliver a written
acknowledgment of the Delivery Date and the expiration date of the Term when
such are established in the form attached to this Lease as Exhibit D; provided,
however, Tenant's failure to execute and deliver such acknowledgment shall not
affect Landlord's rights hereunder. The "Term" of this Lease shall be the Base
Term and any Extension Terms which Tenant may elect pursuant to Section 40
hereof.
Except as set forth in the Work Letter and Section 7 regarding
Landlord's obligations with respect to the compliance of the Premises with Legal
Requirements as of the Delivery Date, if applicable: (i) Tenant shall accept the
Premises in their condition as of the Delivery Date, subject to all applicable
laws, ordinances, regulations, covenants and restrictions; (ii) Landlord shall
have no obligation for any defects in the Premises; and (iii) Tenant's taking
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possession of the Premises shall be conclusive evidence that Tenant accepts the
Premises and that the Premises were in good condition at the time possession was
taken. Any occupancy of the Premises by Tenant before the Delivery Date shall be
subject to all of the terms and conditions of this Lease.
Tenant agrees and acknowledges that neither Landlord nor any agent of
Landlord has made any representation or warranty with respect to the condition
of any or all of the Premises or the Project, and/or the suitability of the
Premises or the Project for the conduct of Tenant's business, and Tenant waives
any implied warranty that the Premises or the Project are suitable for the
Permitted Use. This Lease constitutes the complete agreement of Landlord and
Tenant with respect to the subject matter hereof and supersedes any and all
prior representations, inducements, promises, agreements, understandings and
negotiations which are not contained herein. Landlord in executing this Lease
does so in reliance upon Tenant's representations, warranties, acknowledgments
and agreements contained herein.
3. Rent.
(a) Base Rent. Tenant shall pay to Landlord in advance, without
demand, abatement, deduction or set-off, monthly installments of Base Rent on or
before the first day of each calendar month during the Term hereof, in lawful
money of the United States of America, at the office of Landlord for payment of
Rent set forth above, or to such other person or at such other place as Landlord
may from time designate in writing. Payments of Base Rent for any fractional
calendar month shall be prorated and paid on the basis of a 30 day month. The
obligation of Tenant to pay Base Rent and other sums to Landlord and the
obligations of Landlord under this Lease are independent obligations. Tenant
shall have no right at any time to ▇▇▇▇▇, reduce, or set-off any Rent due
hereunder except for any abatement as may be expressly provided in this Lease.
Notwithstanding anything herein to the contrary, so long as Tenant is not in
Default, Base Rent shall not be due or payable until August 1, 2000; provided,
however, that if the Premises are not available for Delivery (whether or not
this Lease has then been executed) on May 1, 2000, Base Rent shall not be due
until August 1, 2000, plus the number of days from May 1, 2000, until the date
the Premises are ready for Delivery to Tenant.
(b) Additional Rent. In addition to Base Rent, Tenant agrees to
pay to Landlord as additional rent ("Additional Rent"): (i) Tenant's Share of
"Operating Expenses," and (ii) any and all other amounts Tenant assumes or
agrees to pay under the provisions of this Lease, including, without limitation,
any and all other sums that may become due by reason of any default of Tenant or
failure to comply with the agreements, terms, covenants and conditions of this
Lease to be performed by Tenant, after any applicable notice and cure period.
4. Base Rent Adjustments.
(a) Additional Tenant Improvement Allowance. For every dollar,
or portion thereof, of the Additional Tenant Improvement Allowance (as defined
in the Work
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Letter) disbursed by Landlord as provided in the Work Letter, Base
Rent shall increase by 0.018 per rentable square foot per month.
(b) CPI Adjustment Percentage. Base Rent shall be increased on
each annual anniversary of the first day of the first full month during the Term
of this Lease by multiplying the Base Rent payable immediately before such
adjustment by the Rent Adjustment Percentage and adding the resulting amount to
the Base Rent payable immediately before such adjustment. Base Rent, as so
adjusted, shall thereafter be due as provided herein. Base Rent adjustments for
any fractional calendar month shall be prorated. "CPI Adjustment Percentage"
means a fraction, stated as a percentage, the numerator of which shall be the
Index for the calendar month 3 months before the month in which the Base Rent
adjustment is to be made, and the denominator of which shall be the Index for
the calendar month 3 months before the last Base Rent adjustment or, if no prior
Base Rent adjustment has been made, 3 months before the first day of the first
full month during the Term of this Lease. Landlord shall give Tenant written
notice indicating the Base Rent, as adjusted pursuant to this Section, and the
method of computation, and Tenant shall pay to Landlord an amount equal to any
underpayment of Base Rent by Tenant within fifteen days of Landlord's notice to
Tenant. "Index" means the "Consumer Price Index-All Urban Consumers-San
Francisco Metropolitan Area" compiled by the U.S. Department of Labor, Bureau of
Labor Statistics, (1982-84 = 100). If a substantial change is made in the Index,
the revised Index shall be used, subject to such adjustments as Landlord may
reasonably deem appropriate in order to make the revised Index comparable to the
prior Index. If the Bureau of Labor Statistics ceases to publish the Index, then
the successor or most nearly comparable index, as reasonably determined by
Landlord, shall be used, subject to such adjustments as Landlord may reasonably
deem appropriate in order to make the new index comparable to the Index.
5. Operating Expense Payments. Landlord shall deliver to Tenant a
written estimate of Operating Expenses for each calendar year during the Term
(the "Annual Estimate"), which may be revised by Landlord from time to time
during such calendar year. During each month of the Term, on the same date that
Base Rent is due, Tenant shall pay Landlord an amount equal to 1/12 of the
annual cost, as reasonably estimated by Landlord from time to time, of Tenant's
Share of Operating Expenses. Payments for any fractional calendar month shall be
prorated.
The term "Operating Expenses" means all costs and expenses of any kind
or description whatsoever incurred or accrued by Landlord with respect to the
Building (including the Building's Share of all costs and expenses of any kind
or description incurred or accrued by Landlord with respect to the Project which
are not specific to the Building or any other building located in the Project)
(including Taxes, reasonable reserves consistent with good business practice for
future repairs and replacements, capital repairs and improvements amortized over
the lesser of 7 years and the useful life of such capital items (provided that
any replacement roof shall be amortized over 10 years) end only the portion of
the costs so amortized during the Term of the Lease shall be included in
Operating Expenses, and the costs of Landlord's third party
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property manager or, if there is no third party property manager, administration
rent in the amount of 3.0% of Base Rent), excluding only:
(a) the original design and construction costs of the Project
and renovation prior to the date of the Lease and costs of correcting defects in
such original construction or renovation;
(b) completing, fixturing, improving, renovating, painting,
redecorating or other work, which Landlord pays for or performs for specific
tenants within their premises and costs of correcting defects in such work;
(c) capital expenditures for expansion of the Project;
(d) interest, financing costs, principal and amortization of
funds borrowed by Landlord, whether secured or unsecured and all payments of
base rent (but not taxes or operating expenses) under any ground lease;
(e) depreciation of the Project (except for capital
improvements, the cost of which are includable in Operating Expenses);
(f) advertising, legal and space planning expenses and leasing
commissions and other costs and expenses incurred in procuring tenants for the
Project, including any leasing office maintained in the Project;
(g) salaries, wages, benefits and other compensation paid to
officers and employees of Landlord who are not assigned in whole or in part to
the operation, management, maintenance or repair of the Project;
(h) costs of utilities (other than for Common Areas exterior to
other buildings in the Project);
(i) any expenses otherwise includable within Operating Expenses
to the extent actually reimbursed by persons other than tenants of the Project
under leases for space in the Project;
(j) legal and other expenses incurred in the negotiation or
enforcement of leases or in the enforcement of Landlord's title or interest in
the Project or any part thereof;
(k) costs relating to maintaining Landlord's existence, either
as a corporation, partnership, or other entity;
(l) costs (including attorneys' fees and costs of settlement,
judgments and payments in lieu thereof) arising from claims, disputes or
potential disputes pertaining to Landlord, but not the Project, or from
Landlord's failure to make any payment required to be made by Landlord hereunder
before delinquency;
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(m) costs incurred by Landlord due to the violation by Landlord,
its employees, agents or contractors or any tenant of the terms and conditions
of any lease of space in the Project or any Legal Requirement;
(n) tax penalties incurred as a result of Landlord's negligence,
inability or unwillingness to make payment and/or to file any tax or
informational returns when due;
(o) overhead and profit increment paid to the Landlord or to
subsidiaries or affiliates of Landlord for goods and/or services in or to the
Project to the extent the same exceeds the costs of such goods and/or services
rendered by unaffiliated third parties on a competitive basis;
(p) costs arising from Landlord's charitable or political
contributions or fine art maintained at the Project;
(q) costs to be reimbursed by other tenants of the Project,
whether or not actually paid;
(r) costs in connection with services (including electricity),
items or other benefits of a type which are not standard for the Project and
which are not available to Tenant without specific charges therefor, but which
are provided to another tenant or occupant of the Project, whether or not such
other tenant or occupant is specifically charged therefore by Landlord;
(s) costs incurred in the sale or refinancing of the Project;
(t) net income, franchise, capital stock, estate or inheritance
taxes;
(u) costs incurred by reason of the remediation or other
environmental response regarding any contamination of the Premises or the
Project or soils or groundwater thereunder, by Hazardous Materials, except to
the extent such contamination first originates during the Term as the result of
a breach by Tenant of its obligations under Section 30; and
(v) any deductible on a Landlord insurance policy to the extent
exceeding $25,000, or, in the case of a claim for earthquake damage, 5% of the
value of the Building.
Within 90 days after the end of each calendar year (or such longer
period as may be reasonably required), Landlord shall furnish to Tenant a
statement (an "Annual Statement") showing in reasonable detail: (a) the total
and Tenant's Share of actual Operating Expenses for the previous calendar year,
and (b) the total of Tenant's payments in respect of Operating Expenses for such
year. If Tenant's Share of actual Operating Expenses for such year exceeds
Tenant's payments of Operating Expenses for such year, the excess shall be due
and payable by Tenant as Rent within 30 days of Landlord's delivery of the
Annual Statement. If Tenant's payments of Operating Expenses for such year
exceed Tenant's Share of actual Operating Expenses for such year Landlord shall,
in its sole and absolute discretion, either: (i) credit the excess amount to the
next succeeding installments of Operating Expenses due hereunder, or (ii) pay
the excess to Tenant within 30 days after delivery of such Annual Statement,
except that
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after expiration, or earlier termination of the Term, Landlord shall pay the
excess to Tenant within such 30 day period, after deducting all other amounts
due Landlord.
The Annual Statement shall be final and binding upon Tenant unless
Tenant, within 30 days after Tenant's receipt thereof, shall contest any item
therein by giving written notice to Landlord, specifying each item contested and
the reason therefor. If, during such 30 day period, Tenant reasonably and in
good faith questions or contests the correctness of Landlord's statement of
Tenant's Share of Operating Expenses, Landlord will provide Tenant with access
to Landlord's books and records relating to the operation of the Project and
such information as Landlord reasonably determines to be responsive to Tenant's
questions. If after Tenant's review of such information, Landlord and Tenant
cannot agree upon the amount of Tenant's Share of Operating Expenses, then
Tenant shall have the right to have an independent public accounting firm
selected from among the largest in the United States, hired by Tenant (at
Tenant's sole cost and expense) and approved by Landlord (which approval shall
not be unreasonably withheld or delayed), audit and/or review Landlord's books
and records relating to the operation of the Project and such other information
relating to the operation of the Project for the year in question (the
"Independent Review"). The results of any such Independent Review shall be
binding on Landlord and Tenant. If the Independent Review shows that Tenant's
pro rata share of the Operating Expenses actually paid by Tenant for the
calendar year in question exceeded Tenant's obligations for such calendar year,
Landlord shall at Landlord's option either (i) credit the excess amount to the
next succeeding installments of estimated Operating Expenses or (ii) pay the
excess to Tenant within 30 days after delivery of such statement, except that
after expiration or earlier termination of the Term, Landlord shall pay the
excess to Tenant within such 30 day period, after deducting all other amounts
due Landlord. If the Independent Review shows that Tenant's payments of Tenant's
Share of Operating Expenses for such calendar year were less than Tenant's
obligation for the calendar year, Tenant shall pay the deficiency to the
Landlord within 30 days after delivery of such statement. If the Independent
Review shows that Tenant has overpaid Tenant's pro rata share of Operating
Expenses by more than 5% then Landlord shall reimburse Tenant for all costs
incurred by Tenant for the Independent Review. Operating Expenses for the
calendar years in which Tenant's obligation to share therein begins and ends
shall be prorated. Notwithstanding anything set forth herein to the contrary, if
the Project is not at least 95% occupied on average during any year of the Term,
Tenant's Share of Operating Expenses for such year shall be computed as though
the Project had been 95% occupied on average during such year.
"Tenant's Share" shall be the percentage set forth on the first page
of this Lease as Tenant's Share as reasonably adjusted by Landlord for changes
in the physical size of the Premises or the Project occurring thereafter.
Landlord may equitably increase Tenant's Share for any item of expense or cost
reimbursable by Tenant that relates to a repair, replacement, or service that
benefits only the Premises or only a portion of the Project that includes the
Premises or that varies with occupancy or use. Base Rent, Tenant's Share of
Operating Expenses and all other amounts payable by Tenant to Landlord hereunder
are collectively referred to herein as "Rent."
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6. Security Deposit. Intentionally omitted.
7. Use. The Premises shall be used solely for the Permitted Use set
forth in the Basic Lease Provisions, in compliance with all laws, orders,
judgments, ordinances, regulations, codes, directives, permits, licenses,
covenants and restrictions now or hereafter applicable to the Premises, and the
use and occupancy thereof (collectively, "Legal Requirements"). Tenant shall,
upon 5 days' written notice from Landlord, discontinue any use of the Premises
which is declared by any governmental authority having jurisdiction to be a
violation of any Legal Requirement. Tenant will not use or permit the Premises
to be used for any purpose or in any manner that would void Tenant's or
Landlord's insurance, increase the insurance risk, or cause the disallowance of
any sprinkler or other credits. Tenant shall reimburse Landlord promptly upon
demand for any additional premium charged for any such insurance policy by
reason of Tenant's failure to comply with the provisions of this Section or
otherwise caused by Tenant's use and/or occupancy of the Premises. Tenant will
use the Premises in a careful, safe and proper manner and will not commit waste,
overload the floor or structure of the Premises, subject the Premises to use
that would damage the Premises or obstruct or interfere with the rights of
Landlord or other tenants or occupants of the Project, including conducting or
giving notice of any auction, liquidation, or going out of business sale on the
Premises, or using or allowing the Premises to be used for any unlawful purpose.
Tenant shall cause any equipment or machinery to be installed in the Premises so
as to reasonably prevent sounds or vibrations therefrom from extending into
Common Areas, or other space in the Project. Tenant shall not place any
machinery or equipment weighing 500 pounds or more in or upon the Premises or
transport or move such items through the Common Areas of the Project or in the
Project elevators without the prior written consent of Landlord. Except as may
be provided under the Work Letter, Tenant shall not, without the prior written
consent of Landlord, use the Premises in any manner which will require
ventilation, air exchange, heating, gas, steam, electricity or water beyond the
existing capacity of the Project as proportionately allocated to the Premises
based upon Tenant's Share as usually furnished for the Permitted Use.
Landlord shall be responsible for the compliance of the Project with
Legal Requirements, including the Americans With Disabilities Act, 42 U.S.C. (S)
12101, et seq. (together with regulations promulgated pursuant thereto, "ADA"),
as of the Delivery Date (in its then condition and before any work to be
undertaken by Tenant pursuant to the Work Letter). Tenant, at its sole expense,
shall make any alterations or modifications, to the interior or the exterior of
the Premises or the Project, that are required by Legal Requirements (including,
without limitation, compliance of the Premises with the ADA) related to the
performance of Tenant's work under the Work Letter and/or Tenant's use or
occupancy of the Premises. Notwithstanding any other provision herein to the
contrary, but subject to Landlord's obligations as of the Delivery Date of the
Lease, Tenant shall be responsible for any and all demands, claims, liabilities,
losses, costs, expenses, actions, causes of action, damages or judgments, and
all reasonable expenses incurred in investigating or resisting the same
(including, without limitation, reasonable attorneys' fees, charges and
disbursements and costs of suit) (collectively, "Claims") arising out of or in
connection with any failure of the Premises, or the Project to the extent
related to Tenant's use or occupancy of the Premises, to comply with any Legal
Requirement from and after the Delivery Date, and Tenant shall indemnify,
defend, hold and save Landlord harmless from and against any and all Claims
arising out of or in connection with
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any failure of the Premises, or the Project to the extent related to Tenant's
use or occupancy of the Premises, to comply with any Legal Requirement from and
after the Delivery Date.
8. Holding Over. If, with Landlord's express written consent,
Tenant retains possession of the Premises after the termination of the Term, (i)
unless otherwise agreed in such written consent, such possession shall be
subject to immediate termination by Landlord at any time, (ii) all of the other
terms and provisions of this Lease (including, without limitation, the
adjustment of Base Rent pursuant to Section 4 hereof) shall remain in full force
and effect (excluding any expansion or renewal option or other similar right or
option) during such holdover period, (iii) Tenant shall continue to pay Base
Rent in the amount payable upon the date of the expiration or earlier
termination of this Lease or such other amount as Landlord may indicate, in
Landlord's sole and absolute discretion, in such written consent, and (iv) all
other payments shall continue under the terms of this Lease. If Tenant remains
in possession of the Premises after the expiration or earlier termination of the
Term without the express written consent of Landlord, (A) Tenant shall become a
tenant at sufferance upon the terms of this Lease except that the monthly rental
shall be equal to 200% of the Rent in effect during the last 30 days of the
Term, and (B) Tenant shall be responsible for all damages suffered by Landlord
resulting from or occasioned by Tenant's holding over. No holding over by
Tenant, whether with or without consent of Landlord, shall operate to extend
this Lease except as otherwise expressly provided, and this Section 8 shall not
be construed as consent for Tenant to retain possession of the Premises.
Acceptance by Landlord of Rent after the expiration or earlier termination of
the Term shall not result in a renewal or reinstatement of this Lease.
9. Taxes. Landlord shall pay, as part of Operating Expenses, all
taxes, levies, assessments and governmental charges of any kind (collectively
referred to as "Taxes") imposed by any federal, state, regional, municipal,
local or other governmental authority or agency, including, without limitation,
quasi-public agencies (collectively, "Governmental Authority") during the Term,
including, without limitation all Taxes: (i) imposed on or measured by or based,
in whole or in part, on rent payable to Landlord under this Lease and/or from
the rental by Landlord of the Project or any portion thereof, or (ii) based on
the square footage, assessed value or other measure or evaluation of any kind of
the Premises or the Project, or (iii) assessed or imposed by or on the operation
or maintenance of any portion of the Premises or the Project, including parking,
or (iv) assessed or imposed by, or at the direction of, or resulting from
statutes or regulations, or interpretations thereof, promulgated by, any
Governmental Authority, or (v) imposed as a license or other fee on Landlord's
business of leasing space in the Project. Landlord may contest by appropriate
legal proceedings the amount, validity, or application of any Taxes or liens
securing Taxes. Taxes shall not include any net income taxes imposed on Landlord
unless such net income taxes are in substitution for any Taxes payable
hereunder. If any such Tax is levied or assessed directly against Tenant, then
Tenant shall be responsible for and shall pay the same at such times and in such
manner as the taxing authority shall require. Tenant shall pay, prior to
delinquency, any and all Taxes levied or assessed against any personal property
or trade fixtures placed by Tenant in the Premises, whether levied or assessed
against Landlord or Tenant. If any Taxes on Tenant's personal property or trade
fixtures are levied against Landlord or Landlord's property, or if the assessed
valuation of the Project is increased by a value attributable to improvements in
or alterations to the Premises, whether owned by Landlord or Tenant and whether
or not affixed to the real property so as to become a part thereof, higher than
the base valuation on which Landlord from
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time-to-time allocates Taxes to all tenants in the Project, Landlord shall have
the right, but not the obligation, to pay such Taxes. Landlord's determination
of any excess assessed valuation shall be binding and conclusive, absent
manifest error. The amount of any such payment by Landlord shall constitute
Additional Rent due from Tenant to Landlord immediately upon demand.
10. Parking. Tenant shall have the right to park in common with
other tenants of the Project (in proportion to the rentable square feet in the
Premises and the aggregate rentable square feet in the Project) in those areas
designated for non-reserved parking subject in each case to Landlord's rules and
regulations. The amount of such parking provided by Landlord to Tenant will be
in compliance with applicable codes as of the Delivery Date. Landlord may
allocate parking spaces among Tenant and other tenants in the Project if
Landlord determines that such parking facilities are becoming crowded, or not in
compliance with Governmental Authority. Landlord shall not be responsible for
enforcing Tenant's parking rights against any third parties, including other
tenants of the Project. Landlord shall not be responsible for enforcing Tenant's
parking rights against any third parties, including other tenants of the
Project.
11. Utilities, Services. Landlord shall pay, as Operating Expenses,
for all water, electricity, gas, telephone, sewer, and other utilities, refuse
and trash collection and landscaping and janitorial services (collectively,
"Utilities") used in the Common Areas of the Project, all maintenance charges
for Utilities, and any storm sewer charges or other similar charges for
Utilities imposed by any governmental entity or Utility provider, and any taxes,
penalties, surcharges or similar charges thereon. Tenant shall pay directly to
the Utility provider, prior to delinquency, any separately metered Utilities and
services (including janitorial services) which may be furnished to Tenant or the
Premises during the Term. Tenant shall pay, as part of Operating Expenses, its
share of all charges for jointly metered Utilities based upon consumption, as
reasonably determined by Landlord. No interruption or failure of Utilities, from
any cause whatsoever other than Landlord's willful misconduct, shall result in
eviction or constructive eviction of Tenant, termination of this Lease or the
abatement of Rent. Tenant agrees to limit use of water and sewer to normal
restroom, lunchroom and office use.
12. Alterations and Tenant's Property. Any alterations, additions,
or improvements made to the Premises by or on behalf of Tenant, including
additional locks or bolts of any kind or nature upon any doors or windows in the
Premises, but excluding installation, removal or realignment of furniture
systems (other than removal of furniture systems owned or paid for by Landlord)
not involving any modifications to the structure or connections (other then by
ordinary plugs or jacks) to building systems (as hereinafter defined)
("Alterations") shall be subject to Landlord's prior written consent, which
shall not be unreasonably withheld, but which may be given or withheld in
Landlord's sole discretion if any such Alteration affects the structure or
building systems. Tenant may construct nonstructural Alterations in the Premises
without Landlord's prior approval if the aggregate cost of all such work in any
12 month period does not exceed $50,000 (a "Notice-Only Alteration"), provided
Tenant notifies Landlord in writing of such intended Notice-Only Alteration, and
such notice shall be accompanied by plans, specifications, work contracts and
such other information concerning the nature and cost of the Notice-Only
Alteration as may be reasonably requested by Landlord, which notice and
accompanying materials shall be delivered to Landlord not less than
10
15 business days in advance of any proposed construction. If Landlord approves
any Alterations requiring Landlord's approval, Landlord may impose such
conditions on Tenant in connection with the commencement, performance and
completion of such Alterations as Landlord may deem appropriate in Landlord's
reasonable discretion. Any request for approval shall be in writing, delivered
not less than 15 business days in advance of any proposed construction, and
accompanied by plans, specifications, bid proposals, work contracts and such
other information concerning the nature and cost of the alterations as may be
reasonably requested by Landlord, including the identities and mailing addresses
of all persons performing work or supplying materials. Landlord's right to
review plans and specifications and to monitor construction shall be solely for
its own benefit, and Landlord shall have no duty to ensure that such plans and
specifications or construction comply with applicable Legal Requirements. Tenant
shall cause, at its expense, all Alterations to comply with insurance
requirements and with Legal Requirements and shall implement at its sole cost
and expense any alteration or modification required by Legal Requirements as a
result of any Alterations. In connection with any Alteration where the total
cost of such Alteration equals or exceeds $50,000.00 in a 12 month period
(excluding the initial improvements to be installed by Tenant in preparing the
Premises for its occupancy), Tenant shall pay to Landlord, as Additional Rent,
on demand an amount equal to 3% of all charges incurred by Tenant or its
contractors or agents to cover Landlord's overhead and expenses for plan review,
coordination, scheduling and supervision. Before Tenant begins any Alteration,
Landlord may post on and about the Premises notices of non-responsibility
pursuant to applicable law. Tenant shall reimburse Landlord for, and indemnify
and hold Landlord harmless from, any extra expense incurred by Landlord by
reason of faulty work done by Tenant or its contractors, delays caused by such
work, or inadequate cleanup.
Tenant shall furnish security or make other arrangements satisfactory
to Landlord to assure payment for the completion of all Alteration work free and
clear of liens, and shall provide certificates of insurance for worker's
compensation and other coverage in amounts and from an insurance company
reasonably satisfactory to Landlord protecting Landlord against liability for
personal injury or property damage during construction. Upon completion of any
Alterations, Tenant shall deliver to Landlord: (i) sworn statements setting
forth the names of all contractors and subcontractors who did the work and final
lien waivers from all such contractors and subcontractors; and (ii) as built
plans for any such Alteration.
Other than (i) the items, if any, listed on Exhibit F attached hereto
and, (ii) any items reasonably agreed by Landlord in writing to be included on
Exhibit F in the future, and (iii) any trade fixtures, machinery, equipment and
other personal property not paid for out of the TI Fund (as defined in the Work
Letter) which may tie removed without material damage to the Premises, which
damage shall be repaired by Tenant during the Term (the items in clauses (i)
through (iii) are collectively referred to herein as "Tenant's Property"), all
property of any kind paid for with the TI Fund, all Alterations, real property
fixtures, built-in machinery and equipment, built-in casework and cabinets and
other similar additions and improvements built into the Premises so as to become
an integral part of the Premises (collectively, "Installations") shall be and
shall remain the property of Landlord during the Term and following the
expiration or earlier termination of the Term. Installations shall not be
removed by Tenant at any time during the Term and shall remain upon and be
surrendered with the Premises as a part thereof following the expiration or
earlier termination of this Lease; provided, however, that Landlord shall, at
the time its approval of Installations is requested or at the time it receives
notice of a
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Notice-Only Alteration, notify Tenant if it has elected to cause Tenant to
remove such Installation upon or prior to the expiration or earlier termination
of this Lease. If Landlord so elects (other than with respect to Tenant
Improvements made under the Work Letter), Tenant shall remove any such
Installation upon the expiration or earlier termination of this Lease and
restore any damage caused by or occasioned as a result of such removal,
including, when removing any of Tenant's Property which was plumbed, wired or
otherwise connected to any of the building systems, capping off all such
connections behind the walls of the Premises and repairing any holes. During any
such restoration period, Tenant shall pay Rent to Landlord as provided herein as
if said space were otherwise occupied by Tenant.
13. Landlord's Repairs. Landlord, as an Operating Expense, shall
maintain all of the structural, exterior, roof, parking and other Common Areas
of the Project as well as the plumbing, fire sprinkler and electrical building
systems serving the Premises and other portions of the Project ("Landlord
Building Systems"), in good repair, reasonable wear and tear and uninsured
losses and damages caused by Tenant, its agents, servants, employees, invitees
and contractors excluded. Losses and damages caused by Tenant, its agents,
servants, employees, invitees and contractors shall be repaired by Landlord, to
the extent not covered by insurance, at Tenant's sole cost and expense. Landlord
reserves the right to stop Utilities when necessary (i) by reason of accident or
emergency, or (ii) for planned repairs, alterations or improvements to common
area improvements, which are, in the judgment of Landlord, desirable or
necessary to be made, until said repairs, alterations or improvements shall have
been completed. Landlord shall have no responsibility or liability for failure
to supply Utilities during any such period of interruption; provided, however,
that Landlord shall give Tenant 24 hours advance notice of any planned stoppage
of Utilities for routine maintenance, repairs, alterations or improvements.
Tenant shall promptly give Landlord written notice of any repair required by
Landlord pursuant to this Section after which Landlord shall have a reasonable
opportunity to effect such repair. Landlord shall not be liable for any failure
to make any repairs or to perform any maintenance unless such failure shall
persist for an unreasonable time after Tenant's written notice of the need for
such repairs or maintenance. Tenant waives it rights under any state or local
law to terminate this Lease or to make such repairs at Landlord's expense and
agrees that the parties' respective rights with respect to such matters shall be
solely as set forth herein. Repairs required as the result of fire, earthquake,
flood, vandalism, war, or similar cause of damage or destruction shall be
controlled by Section 18.
14. Tenant's Repairs. Subject to Section 13 hereof, Tenant, at its
expense, shall repair, replace and maintain in good condition all portions of
the Premises, including, without limitation, HVAC, elevators, entries, doors,
ceilings, interior windows, interior walls, and the interior side of demising
walls. Such repair and replacements may include capital expenditures and repairs
whose benefit may extend beyond the Term. Should Tenant fail to make any such
repair or replacement or fail to maintain the Premises, Landlord shall give
Tenant notice of such failure. If Tenant fails to commence cure of such default
within 30 days of Landlord's notice, and thereafter diligently prosecute such
cure to completion, Landlord may perform such work and shall be reimbursed by
Tenant within 10 days after written demand therefor; provided, however, that if
such default by Tenant creates or could create an emergency, Landlord may
immediately commence cure of such default and shall thereafter be entitled to
recover the costs of such cure from Tenant. Subject to Sections 17 and 18,
Tenant shall bear the full uninsured cost of any repair or replacement to any
part of the Project that results from
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damage caused by Tenant, its agents, contractors, or invitees and any repair
that benefits only the Premises.
15. Mechanic's Liens. Tenant shall discharge, by bond or otherwise,
any mechanic's lien filed against the Premises or against the Project for work
claimed to have been done for, or materials claimed to have been furnished to,
Tenant within 10 days after the filing thereof, at Tenant's sole cost and shall
otherwise keep the Premises and the Project free from any liens arising out of
work performed, materials furnished or obligations incurred by Tenant. Should
Tenant fail to discharge any lien described herein, Landlord shall have the
right, but not the obligation, to pay such claim or post a bond or otherwise
provide security to eliminate the lien as a claim against title to the Project
and the cost thereof shall be immediately due from Tenant as Additional Rent. If
Tenant shall lease or finance the acquisition of office equipment, furnishings,
or other personal property of a removable nature utilized by Tenant in the
operation of Tenant's business, Tenant warrants that any Uniform Commercial Code
Financing Statement executed by Tenant will upon its face or by exhibit thereto
indicate that such Financing Statement is applicable only to removable personal
property of Tenant located within the Premises. In no event shall the address of
the Project be furnished on the statement without qualifying language as to
applicability of the lien only to removable personal property, located in an
identified suite held by Tenant.
16. Indemnification. Tenant hereby indemnifies and agrees to defend,
save and hold Landlord harmless from and against any and all Claims for injury
or death to persons or damage to property occurring within or about the
Premises, arising directly or indirectly out of use or occupancy of the Premises
or a breach or default by Tenant in the performance of any of its obligations
hereunder, unless caused solely by the willful misconduct or gross negligence of
Landlord. Landlord shall not be liable to Tenant for, and Tenant assumes all
risk of damage to, personal property (including, without limitation, loss of
records kept within the Premises). Tenant further waives any and all Claims for
injury to Tenant's business or loss of income relating to any such damage or
destruction of personal property (including, without limitation, any loss of
records). Landlord shall not be liable for any damages arising from any act,
omission or neglect of any tenant in the Project or of any other third party.
17. Insurance. Landlord shall maintain all insurance against any
peril generally included within the classification "Fire and Extended Coverage,"
sprinkler damage (if applicable), vandalism and malicious mischief covering the
full replacement cost of the Project. Landlord shall further carry commercial
general liability insurance with a single loss limit of not less than $2,000,000
for death or bodily injury, or property damage with respect to the Project.
Landlord may, but is not obligated to, maintain such other insurance and
additional coverages as it may deem necessary, including, but not limited to,
flood, environmental hazard and earthquake, loss or failure of building
equipment, errors and omissions, rental loss during the period of repair or
rebuilding, workmen's compensation insurance and fidelity bonds for employees
employed to perform services and insurance for any improvements installed by
Tenant or which are in addition to the standard improvements customarily
furnished by Landlord without regard to whether or not such are made a part of
the Project. All such insurance shall be included as part of the Operating
Expenses. The Project may be included in a blanket policy (in which case the
cost of such insurance allocable to the Project will be determined by Landlord
based upon the insurer's cost calculations).
13
Tenant, at its sole cost and expense, shall maintain during the Term:
all risk property insurance covering the full replacement cost of all property
and improvements installed or placed in the Premises by Tenant at Tenant's
expense; worker's compensation insurance with no less than the minimum limits
required by law; employer's liability insurance with such limits as required by
law; and commercial general liability insurance, with a minimum limit of not
less than $2,000,000 per occurrence for death or bodily injury and not less than
$1,000,000 for property damage with respect to the Premises. The commercial
general liability insurance policies shall name Landlord, its officers,
directors, employees, managers, agents, invitees and contractors (collectively,
"Related Parties"), as additional insureds; insure on an occurrence and not a
claims-made basis; be issued by insurance companies which have a rating of not
less than policyholder rating of A-and financial category rating of at least
Class X in "Best's Insurance Guide"; shall not be cancelable unless 30 days
prior written notice shall have been given to Landlord from the insuror; contain
a hostile fire endorsement and a contractual liability endorsement; and provide
primary coverage to Landlord (any policy issued to Landlord providing duplicate
or similar coverage shall be deemed excess over Tenant's policies). Such
policies or certificates thereof shall be delivered to Landlord by Tenant upon
commencement of the Term and upon each renewal of said insurance. Tenant's
policy may be a "blanket policy" which specifically provides that the amount of
insurance shall not be prejudiced by other losses covered by the policy. Tenant
shall, at least 10 days prior to the expiration of such policies, furnish
Landlord with renewals or binders. Tenant agrees that if Tenant does not take
out and maintain such insurance, Landlord may (but shall not be required to)
procure said insurance on Tenant's behalf and at its cost to be paid as
Additional Rent.
In each instance where insurance is to name Landlord as additional
insured, Tenant shall upon written request of Landlord also designate and
furnish certificates so evidencing Landlord as additional insured to: (i) any
lender of Landlord holding a security interest in the Project or any portion
thereof, (ii) the landlord under any lease wherein Landlord is tenant of the
real property on which the Project is located, if the interest of Landlord is or
shall become that of a tenant under a ground lease rather than that of a fee
owner, and/or (iii) any management company retained by Landlord to manage the
Project.
The property insurance obtained by Landlord and Tenant shall include a
waiver of subrogation by the insurers and all rights based upon an assignment
from its insured, against Landlord or Tenant, and their respective Related
Parties, in connection with any loss or damage thereby insured against. Neither
party nor its respective Related Parties shall be liable to the other for loss
or damage caused by any risk insured against under property insurance required
to be maintained hereunder, and each party waives any claims against the other
party, and its respective Related Parties for such loss or damage. The failure
of a party to insure its property shall not void this waiver. Landlord and its
respective Related Parties shall not be liable for, and Tenant hereby waives all
claims against such parties for, business interruption and losses occasioned
thereby sustained by Tenant or any person claiming through Tenant resulting from
any accident or occurrence in or upon the Premises or the Project from any cause
whatsoever. If the foregoing waivers shall contravene any law with respect to
exculpatory agreements, the liability of Landlord or Tenant shall be deemed not
released but shall be secondary to the other's insurer.
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Landlord may require insurance policy limits to be raised to conform
with requirements of Landlord's lender and/or to bring coverage limits to levels
then being required of new tenants within the Project.
18. Restoration. If at any time during the Term the Project or the
Premises are damaged by a fire or other insured casualty, Landlord shall notify
Tenant within 60 days after discovery of such damage as to the amount of time
Landlord reasonably estimates it will take to restore the Project or the
Premises, as applicable. If the restoration time is estimated to exceed 8
months, Landlord may, in such notice, elect to terminate this Lease as of the
date that is 75 days after the date of discovery of such damage or destruction.
Unless Landlord elects to terminate this Lease, Landlord shall, subject to
receipt of sufficient insurance proceeds (with any deductible to be treated as a
current Operating Expense), promptly restore the Premises (excluding the
improvements installed by Tenant or by Landlord and paid for by Tenant), subject
to delays arising from the collection of insurance proceeds, from Force Majeure
events or as needed to obtain any license, clearance or other authorization of
any kind required to enter into and restore the Premises issued by any
governmental or quasi-governmental agency having jurisdiction over the Premises,
including with respect to the use, storage, release or removal of Hazardous
Materials in, on or about the Premises (collectively referred to herein as "Use
Clearances"); provided, however, that if repair or restoration of the Premises
is not Substantially Complete as of the end of 8 months from the date of damage
or destruction, Landlord may, in its sole and absolute discretion, elect not to
proceed with such-repair and restoration, or Tenant may, in its sole and
absolute discretion, elect to terminate this Lease by written notice delivered
within 5 business days of the expiration of such 8 month period, in which event
Landlord shall be relieved of its obligation to make such repairs or restoration
and this Lease shall terminate as of the date that is 75 days after the later
of: (i) discovery of such damage or destruction, or (ii) the date all required
Use Clearances are obtained.
Tenant, at its expense, shall promptly perform, subject to delays
arising from the collection of insurance proceeds, from Force Majeure events or
to obtain Use Clearances, all repairs or restoration not required to be done by
Landlord and shall promptly re-enter the Premises and commence doing business in
accordance with this Lease. Notwithstanding the foregoing, Landlord may
terminate this Lease upon 60 days prior written notice if the Premises are
damaged during the last 12 months of the Term and Landlord reasonably estimates
that it will take more than one month to repair such damage, or if insurance
proceeds are not available for such restoration.
Rent shall be abated from the date all required Use Clearances are
obtained until the Premises are repaired and restored, in the proportion which
the area of the Premises, if any, which is not usable by Tenant in the manner in
which the damaged portion of the Premises were used by Tenant bears to the total
area of the Premises, unless Landlord provides Tenant with other space during
the period of repair that is reasonably suitable in Tenant's judgment for the
temporary conduct of Tenant's business. Such abatement shall be the sole remedy
of Tenant, and except as provided herein, Tenant waives any right to terminate
the Lease by reason of damage or casualty loss.
The provisions of this Lease, including this Section 18, constitute an
express agreement between Landlord and Tenant with respect to any and all damage
to, or destruction of,
15
all or any part of the Premises, or any other portion of the Project, and any
statute or regulation which is now or may hereafter be in effect, shall have no
application to this Lease or any damage or destruction to all or any part of the
Premises or any other portion of the Project, the parties hereto expressly
agreeing this Section 18 sets forth their entire understanding and agreement
with respect to such matters.
19. Condemnation. If any part of the Premises or the Project is
taken for any public or quasi-public use under governmental law, ordinance, or
regulation, or by right of eminent domain, or by private purchase in lieu
thereof (a "Taking" or "Taken"), and the Taking would in Landlord's judgment
either prevent or materially interfere with Tenant's use of the Premises or
materially interfere with or impair Landlord's ownership or operation of the
Project, then upon written notice by Landlord this Lease shall terminate and
Rent shall be apportioned as of said date. If part of the Premises shall be
Taken, and this Lease is not terminated as provided above, Landlord shall
promptly restore the Premises and the Project as nearly as is commercially
reasonable under the circumstances to their condition prior to such partial
taking and the Rent payable hereunder during the unexpired Term shall be reduced
to such extent as may be fair and reasonable under the circumstances. Upon any
such Taking, Landlord shall be entitled to receive the entire price or award
from any such Taking without any payment to Tenant, and Tenant hereby assigns to
Landlord Tenant's interest, if any, in such award. Tenant shall have the right,
to the extent that same shall not diminish Landlord's award, to make a separate
claim against the condemning authority (but not Landlord) for such compensation
as may be separately awarded or recoverable by Tenant for moving expenses and
damage to Tenant's Trade Fixtures, if a separate award for such items is made to
Tenant. Tenant hereby waives any and all rights it might otherwise have pursuant
to any provision of state law to terminate this Lease upon a partial Taking of
the Premises or the Project.
20. Events of Default. Each of the following events shall be a
default ("Default") by Tenant under this Lease:
(a) Payment Defaults. Tenant shall fail to pay any installment
of Rent or any other payment hereunder when due; provided, however, that
Landlord will give Tenant notice and an opportunity to cure any failure to pay
Rent within 3 days of any such notice not more than once in any 12 month period
and Tenant agrees that such notice shall be in lieu of and not in addition to
any notice required by law.
(b) Insurance. Any insurance required to be maintained by
Tenant pursuant to this Lease shall be canceled or terminated or shall expire or
shall be reduced or materially changed, or Landlord shall receive a notice of
nonrenewal of any such insurance and Tenant shall fail to obtain replacement
insurance at least 10 days before the expiration of the current coverage.
(c) Abandonment. Tenant shall abandon the Premises.
(d) Improper Transfer. Tenant shall assign, sublease or
otherwise transfer or attempt to transfer all or any portion of Tenant's
interest in this Lease or the Premises except as expressly permitted herein, or
Tenant's interest in this Lease shall be attached,
16
executed upon, or otherwise judicially seized and such action is not released
within 90 days of the action.
(e) Liens. Tenant shall fail to discharge or otherwise obtain
the release of any lien placed upon the Premises in violation of this Lease
within 10 days after Tenant has knowledge that any such lien has been filed
against the Premises.
(f) Insolvency Events. Tenant or any guarantor or surety of
Tenant's obligations hereunder shall: (A) make a general assignment for the
benefit of creditors; (B) commence any case, proceeding or other action seeking
to have an order for relief entered on its behalf as a debtor or to adjudicate
it a bankrupt or insolvent, or seeking reorganization, arrangement, adjustment,
liquidation, dissolution or composition of it or its debts or seeking
appointment of a receiver, trustee, custodian or other similar official for it
or for all or of any substantial part of its property (collectively a
"Proceeding for Relief"); (C) become the subject of any Proceeding for Relief
which is not dismissed within 90 days of its filing or entry; or (D) die or
suffer a legal disability (if Tenant, guarantor, or surety is an individual) or
be dissolved or otherwise fail to maintain its legal existence (if Tenant,
guarantor or surety is a corporation, partnership or other entity).
(g) Estoppel Certificate or Subordination Agreement. Tenant
fails to execute any document required from Tenant under Sections 23 or 27
within 5 days after a second notice requesting such document.
(h) Other Defaults. Tenant shall fail to comply with any
provision of this Lease other than those specifically referred to in this
Section 20, and except as otherwise expressly provided herein, such failure
shall continue for a period of 10 days after written notice thereof from
Landlord to Tenant.
Any notice given under Sections 20 (g) or (h) hereof, shall: (i) specify the
alleged default, (ii) demand that Tenant cure such default, (iii) be in lieu of,
and not in addition to, or shall be deemed to be any notice required under any
provision of applicable law, and (iv) not be deemed a forfeiture or a
termination of this Lease unless Landlord elects otherwise in such notice;
provided that if the nature of Tenant's default pursuant to Section 20(h) is
such that it cannot be cured by the payment of money and reasonably requires
more than 10 days to cure, then Tenant shall not be deemed to be in default if
Tenant commences such cure within said 10 day period and thereafter diligently
prosecutes the same to completion; provided, however, that such cure shall be
completed no later than 120 days from the date of Landlord's notice.
21. Landlord's Remedies.
(a) Payment By Landlord; Interest. Upon a Default by Tenant
hereunder, Landlord may, without waiving or releasing any obligation of Tenant
hereunder, make such payment or perform such act. All sums so paid or incurred
by Landlord, together with interest thereon, from the date such sums were paid
or incurred, at the annual rate equal to 12% per annum or the highest rate
permitted by law (the "Default Rate"), whichever is less,
17
shall be payable to Landlord on demand as Additional Rent. Nothing herein shall
be construed to create or impose a duty on Landlord to mitigate any damages
resulting from Tenant's Default hereunder.
(b) Late Payment Rent. Late payment by Tenant to Landlord of
Rent and other sums due will cause Landlord to incur costs not contemplated by
this Lease, the exact amount of which will be extremely difficult and
impracticable to ascertain. Such costs include, but are not limited to,
processing and accounting charges and late charges which may be imposed on
Landlord under any Mortgage covering the Premises. Therefore, if any installment
of Rent due from Tenant is not received by Landlord within 5 days after the date
such payment is due, Tenant shall pay to Landlord an additional sum of 6% of
the overdue Rent as a late charge. The parties agree that this late charge
represents a fair and reasonable estimate of the costs Landlord will incur by
reason of late payment by Tenant. In addition to the late charge, Rent not paid
when due shall bear interest at the Default Rate from the 5th day after the date
due until paid.
(c) Remedies. Upon the occurrence of a Default, Landlord, at
its option, without further notice or demand to Tenant, shall have in addition
to all other rights and remedies provided in this Lease, at law or in equity,
the option to pursue any one or more of the following remedies, each and all of
which shall be cumulative and nonexclusive, without any notice or demand
whatsoever.
(i) Terminate this Lease, or at Landlord's option, Tenant's
right to possession only, in which event Tenant shall immediately surrender the
Premises to Landlord, and if Tenant fails to do so, Landlord may, without
prejudice to any other remedy which it may have for possession or arrearages in
rent, enter upon and take possession of the Premises and expel or remove Tenant
and any other person who may be occupying the Premises or any part thereof,
without being liable for prosecution or any claim or damages therefor;
(ii) Upon any termination of this Lease, whether pursuant to
the foregoing Section 21(c)(i) or otherwise, Landlord may recover from Tenant
the following:
(A) The worth at the time of award of any unpaid rent
which has been earned at the time of such termination; plus
(B) The worth at the time of award of the amount by
which the unpaid rent which would have been earned after termination until the
time of award exceeds the amount of such rental loss that Tenant proves could
have been reasonably avoided; plus
(C) The worth at the time of award of the amount by
which the unpaid rent for the balance of the Term after the time of award
exceeds the amount of such rental loss that Tenant proves could have been
reasonably avoided; plus
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(D) Any other amount necessary to compensate Landlord
for all the detriment proximately caused by Tenant's failure to perform its
obligations under this Lease or which in the ordinary course of things would be
likely to result therefrom, specifically including but not limited to, brokerage
commissions and advertising expenses incurred, expenses of remodeling the
Premises or any portion thereof for a new tenant, whether for the same or a
different use, and any special concessions made to obtain a new tenant; and
(E) At Landlord's election, such other amounts in
addition to or in lieu of the foregoing as may be permitted from time to time by
applicable law.
The term "rent" as used in this Section 21 shall be deemed to be and to mean all
sums of every nature required to be paid by Tenant pursuant to the terms of this
Lease, whether to Landlord or to others. As used in Sections 21(c)(ii) (A) and
(B), above, the "worth at the time of award" shall be computed by allowing
interest at the Default Rate. As used in Section 21(c)(ii)(C) above, the "worth
at the time of award" shall be computed by discounting such amount at the
discount rate of the Federal Reserve Bank of San Francisco at the time of award
plus [1]%.
(iii) Landlord may continue this Lease in effect after
Tenant's Default and recover rent as it becomes due. Accordingly, if Landlord
does not elect to terminate this Lease following a Default by Tenant, Landlord
may, from time to time, without terminating this Lease, enforce all of its
rights and remedies hereunder, including the right to recover all Rent as it
becomes due.
(iv) Whether or not Landlord elects to terminate this Lease
following a Default by Tenant, Landlord shall have the right to terminate any
and all subleases, licenses, concessions or other consensual arrangements for
possession entered into by Tenant and affecting the Premises or may, in
Landlord's sole discretion, succeed to Tenant's interest in such subleases,
licenses, concessions or arrangements. Upon Landlord's election to succeed to
Tenant's interest in any such subleases, licenses, concessions or arrangements,
Tenant shall, as of the date of notice by Landlord of such election, have no
further right to or interest in the rent or other consideration receivable
thereunder.
(d) Effect of Exercise: Exercise by Landlord of any remedies
hereunder or otherwise available shall not be deemed to be an acceptance of
surrender of the Premises and/or a termination of this Lease by Landlord, it
being understood that such surrender and/or termination can be effected only by
the express written agreement of Landlord and Tenant. Any law, usage, or custom
to the contrary notwithstanding, Landlord shall have the right at all times to
enforce the provisions of this Lease in strict accordance with the terms hereof;
and the failure of Landlord at any time to enforce its rights under this Lease
strictly in accordance with same shall not be construed as having created a
custom in any way or manner contrary to the specific terms, provisions, and
covenants of this Lease or as having modified the same and shall not be deemed a
waiver of Landlord's right to enforce one or more of its rights in connection
with any subsequent default. A receipt by Landlord of Rent or other payment with
knowledge of the breach of any covenant hereof shall not be deemed a waiver of
such breach,
19
and no waiver by Landlord of any provision of this Lease shall be deemed to
have been made unless expressed in writing and signed by Landlord. To the
greatest extent permitted by law, Tenant waives the service of notice of
Landlord's intention to re-enter, re-take or otherwise obtain possession of
the Premises as provided in any statute, or to institute legal proceedings
to that end, and also waives all right of redemption in case Tenant shall
be dispossessed by a judgment or by warrant of any court or judge. Any
reletting of the Premises or any portion thereof shall be on such terms and
conditions as Landlord in its sole discretion may determine. Landlord shall
not be liable, nor shall Tenant's obligations hereunder be diminished
because of, Landlord's failure to relet the Premises or collect rent due in
respect of such reletting or otherwise to mitigate any damages arising by
reason of Tenant's Default.
22. Assignment and Subletting.
(a) General Prohibition. Without Landlord's prior written
consent subject to and on the conditions described in this Section 22,
Tenant shall not, directly or indirectly, voluntarily or by operation of
law, assign this Lease or sublease the Premises or any part thereof or
mortgage, pledge, or hypothecate its leasehold interest or grant any
concession or license within the Premises and any attempt to do any of the
foregoing shall be void and of no effect. If Tenant is a corporation,
partnership or limited liability company, the shares or other ownership
interests of which are not actively traded upon a stock exchange or in the
over-the-counter market, a transfer or series of transfers whereby 50% or
more of the issued and outstanding shares or other ownership interests of
such corporation are, or voting control is, transferred (but excepting
transfers upon deaths of individual owners) from a person or persons or
entity or entities which were owners thereof at time of execution of this
Lease to persons or entities who were, not owners of shares of the
corporation, partnership or limited liability company at time of execution
of this Lease, shall be deemed an assignment of this Lease requiring the
consent of Landlord as provided in this Section 22.
(b) Permitted Transfers. If Tenant desires to assign,
sublease, hypothecate or otherwise transfer this Lease or sublet the
Premises other than pursuant to a Permitted Assignment (as defined below),
then at least 15 business days, but not more than 45 business days, before
the date Tenant desires the assignment or sublease to be effective (the
"Assignment Date"), Tenant shall give Landlord a notice (the "Assignment
Notice") containing such information about the proposed assignee or
sublessee, including the proposed use of the Premises and any Hazardous
Materials proposed to be used or stored in the Premises, the Assignment
Date, any relationship between Tenant and the proposed assignee or
sublessee, and all material terms and conditions of the proposed assignment
or sublease, including a copy of any proposed sublease in its final form,
and such other information as Landlord may deem reasonably necessary or
appropriate to its consideration whether to grant its consent. Landlord
may, by giving written notice to Tenant within 15 business days after
receipt of the Assignment Notice: (i) grant or refuse such consent, in its
sole discretion with respect to a proposed assignment, hypothecation or
other transfer or subletting of more than (together with all other then
effective subleases) 50% of the Premises, or grant or refuse such consent,
in its reasonable discretion with respect to a proposed subletting of up to
(together with all other then effective subleases) 50% of the Premises
(provided that Landlord shall further have the right to review and approve
or disapprove the proposed form of sublease prior to the effective date of
any such subletting), or (ii) terminate this Lease with respect to the
space described in the Assignment
20
Notice, as of the Assignment Date (an "Assignment Termination"). If
Landlord elects an Assignment Termination, Tenant shall have the right to
withdraw such Assignment Notice by written notice to Landlord of such
election within 5 business days after Landlord's notice electing to
exercise the Assignment Termination. If Tenant withdraws such Assignment
Notice, this Lease shall continue in full force and effect. If Tenant does
not withdraw such Assignment Notice, this Lease, and the term and estate
herein granted, shall terminate as of the Assignment Date with respect to
the space described in such Assignment Notice. No failure of Landlord to
exercise any such option to terminate this Lease shall be deemed to be
Landlord's consent to the proposed assignment, sublease or other transfer.
Tenant shall reimburse Landlord for all of Landlord's reasonable out-of-
pocket expenses in connection with its consideration of any Assignment
Notice. Notwithstanding the foregoing, (i) Landlord's consent to an
assignment of this Lease or a subletting of any portion of the Premises to
any entity controlling, controlled by or under common control with Tenant
shall not be required, provided that Landlord shall have the right to
approve the form of any such sublease or assignment, and (ii)Tenant shall
have the right to assign this Lease, upon 30 days prior written notice to
Landlord but without obtaining Landlord's prior written consent, to a
corporation or other entity which is a successor-in-interest to Tenant, by
way of merger, consolidation or corporate reorganization, or by the
purchase of all or substantially all of the assets or the ownership
interests of the Tenant provided that (i) such merger or consolidation, or
such acquisition or assumption, as the case maybe, is for a good business
purpose and not principally for the purpose of transferring the Lease, and
(ii) the net worth (as determined in accordance with GAAP) of the assignee
is not less than the net worth (as determined in accordance with GAAP) of
Tenant as of the Effective Date, and (iii) such assignee shall agree in
writing to assume all of the terms, covenants and conditions of this Lease
arising after the effective date of the assignment (either (i) or (ii), a
"Permitted Assignment").
(c) Additional Conditions. As a condition to any such assignment
or subletting, whether or not Landlord's consent is required, Landlord may
require:
(i) that any assignee or subtenant agree, in writing at
the time of such assignment or subletting, that if Landlord gives such
party notice that Tenant is in default under this Lease, such party shall
thereafter make all payments otherwise due Tenant directly to Landlord,
which payments will be received by Landlord without any liability except to
credit such payment against those due under the Lease, and any such third
party shall agree to attorn to Landlord or its successors and assigns
should this Lease be terminated for any reason; provided, however, in no
event shall Landlord or its successors or assigns be obligated to accept
such attornment; and
(ii) A list of Hazardous Materials, certified by the
proposed assignee or sublessee to be true and correct, which the proposed
assignee or sublessee intends to use or store in the Premises together with
copies of all documents relating to the handling, storage, disposal and
emission of Hazardous Materials by the proposed assignee or subtenant in
the Premises or on the Project, prior to the proposed assignment or
subletting, including, without limitation: permits; approvals; reports and
correspondence; storage and management plans; plans relating to the
installation of any storage tanks to be installed in or under the Project
(provided, said installation of tanks shall only be permitted after
Landlord has given its written consent to do so, which consent may be
withheld in Landlord's sole and absolute discretion); and all closure plans
or any other documents required by any and all federal, state and local
governmental
21
agencies and authorities for any storage tanks installed in, on or under
the Project for the closure of any such tanks. Neither Tenant nor any such
proposed assignee or subtenant is required, however, to provide Landlord
with any portion(s) of the such documents containing information of a
proprietary nature which, in and of themselves, do not contain a reference
to any Hazardous Materials or hazardous activities.
(d) No Release of Tenant, Sharing of Excess Rents.
Notwithstanding any assignment or subletting, Tenant and any guarantor or
surety of Tenant's obligations under this Lease shall at all times remain
fully and primarily responsible and liable for the payment of Rent and for
compliance with all of Tenant's other obligations under this Lease. If the
Rent due and payable by a sublessee or assignee (or a combination of the
rental payable under such sublease or assignment plus any bonus or other
consideration therefor or incident thereto) exceeds the rental payable
under this Lease, (excluding however, any Rent payable under this Section),
then Tenant shall be bound and obligated to pay Landlord as Additional Rent
hereunder 50% of such excess rental and other excess consideration within
10 days following receipt thereof by Tenant. If Tenant shall sublet the
Premises or any part thereof, Tenant hereby immediately and irrevocably
assigns to Landlord, as security for Tenant's obligations under this Lease,
all rent from any such subletting and Landlord as assignee and as attorney-
in-fact for Tenant, or a receiver for Tenant appointed on Landlord's
application, may collect such rent and apply it toward Tenant's obligations
under this Lease; except that, until the occurrence of a Default, Tenant
shall have the right to collect such rent.
(e) No Waiver. The consent by Landlord to an assignment or
subletting shall not relieve Tenant or any assignees of this Lease or any
sublessees of the Premises from obtaining the consent of Landlord to any
further assignment or subletting nor shall it release Tenant or any
assignee or sublessee of Tenant from full and primary liability under the
Lease. The acceptance of Rent hereunder, or the acceptance of performance
of any other term, covenant, or condition thereof, from any other person or
entity shall not be deemed to be a waiver of any of the provisions of this
Lease or a consent to any subletting, assignment or other transfer of the
Premises.
23. Estoppel Certificate. Tenant shall within 10 business days of
written notice from Landlord, execute, acknowledge and deliver a statement
in writing substantially in the form attached to this Lease as Exhibit G
with the blanks filled in, and on any other form reasonably requested by a
proposed lender or purchaser, (i) certifying that this Lease is unmodified
and in full force and effect (or, if modified, stating the nature of such
modification and certifying that this Lease as so modified is in full force
and effect) and the dates to which the rental and other charges are paid in
advance, if any, (ii) acknowledging that there are not any uncured defaults
on the part of Landlord hereunder, or specifying such defaults if any are
claimed, and (iii) setting forth such further information with respect to
the status of this Lease or the Premises as may be requested thereon. Any
such statement may be relied upon by any prospective purchaser or
encumbrancer of all or any portion of the real property of which the
Premises are a part. Tenant's failure to deliver such statement within such
time shall, at the option of Landlord and subject to Section 20(g) hereof,
constitute a Default under this Lease, and, in any event, shall be
conclusive upon Tenant that the Lease is in full force and effect and
without modification except as may be represented by Landlord in any
certificate prepared by Landlord and delivered to Tenant for execution.
22
24. Quiet Enjoyment. So long as Tenant shall perform all of the
covenants and agreements herein required to be performed by Tenant, Tenant
shall, subject to the terms of this Lease, at all times during the Term,
have peaceful and quiet enjoyment of the Premises against any person
claiming by, through or under Landlord.
25. Prorations. All prorations required or permitted to be made
hereunder shall be made on the basis of a 360 day year and 30 day months.
26. Rules and Regulations. Tenant shall, at all times during the
Term and any extension thereof, comply with all reasonable rules and
regulations at any time or from time to time established by Landlord
covering use of the Premises and the Project. The current rules and
regulations are attached hereto as Exhibit E. If there is any conflict
between said rules and regulations and other provisions of this Lease, the
terms and provisions of this Lease shall control. Landlord shall not have
any liability or obligation for the breach of any rules or regulations by
other tenants in the Project.
27. Subordination. This Lease and Tenant's interest and rights
hereunder are and shall be subject and subordinate at all times to the lien
of any Mortgage, now existing or hereafter created on or against the
Project or the Premises, and all amendments, restatements, renewals,
modifications, consolidations, refinancing, assignments and extensions
thereof, without the necessity of any further instrument or act on the part
of Tenant; provided, however, that so long as there is no Default
hereunder, Tenant's right to possession of the Premises shall not be
disturbed by the Holder of any such Mortgage. Tenant agrees, at the
election of the Holder of any such Mortgage, to attorn to any such Holder.
Tenant agrees upon demand to execute, acknowledge and deliver a
Subordination, Non-disturbance and Attornment Agreement in the form
attached hereto as Exhibit H, or such other instruments, confirming such
subordination and such instruments of attornment as shall be requested by
any such Holder, provided any such instruments contain appropriate non-
disturbance provisions assuring Tenant's quiet enjoyment of the Premises as
set forth in Section 24 hereof. Notwithstanding the foregoing, any such
Holder may at any time subordinate its Mortgage to this Lease, without
Tenant's consent, by notice in writing to Tenant, and thereupon this Lease
shall be deemed prior to such Mortgage without regard to their respective
dates of execution, delivery or recording and in that event such Holder
shall have the same rights with respect to this Lease as though this Lease
had been executed prior to the execution, delivery and recording of such
Mortgage and had been assigned to such Holder. The term "Mortgage" whenever
used in this Lease shall be deemed to include deeds of trust, security
assignments and any other encumbrances, and any reference to the "Holder"
of a mortgage shall be deemed to include the beneficiary under a deed of
trust.
28. Surrender. Upon expiration of the Term or earlier
termination of Tenant's right of possession, Tenant shall surrender the
Premises to Landlord in the same condition as received, subject to any
Alterations permitted by Landlord or this Lease to remain in the Premises,
free of Hazardous Materials brought upon, kept or used in or about the
Premises by any person other than Landlord, its agents, employees,
contractors or invitees, released of all Use Clearances, and broom clean,
ordinary wear and tear and casualty loss and condemnation covered by
Sections 18 and 19 excepted. Tenant shall immediately return to Landlord
all keys and/or access cards to parking, the Project, restrooms or all or
any portion of the Premises
23
furnished to, or otherwise procured by Tenant. If any such access card or
key is lost, Tenant shall pay to Landlord, at Landlord's election, either
the cost of replacing such lost access card or key or the cost of
reprogramming the access security system in which such access card was used
or changing the lock or locks opened by such lost key. Any Tenant's
Property, Alterations and property not so removed by Tenant as permitted or
required herein shall be deemed abandoned and may be stored, removed, and
disposed of by Landlord at Tenant's expense, and Tenant waives all claims
against Landlord for any damages resulting from Landlord's retention and/or
disposition of such property. All obligations of Tenant hereunder not fully
performed as of the termination of the Term, including the obligations of
Tenant under Section 30 hereof, shall survive the expiration or earlier
termination of the Term, including without limitation, indemnity
obligations, payment obligations with respect to Rent and obligations
concerning the condition and repair of the Premises.
29. Waiver of Jury Trial. TENANT AND LANDLORD WAIVE ANY
RIGHT TO TRIAL BY JURY OR TO HAVE A JURY PARTICIPATE IN RESOLVING ANY
DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR OTHERWISE, BETWEEN LANDLORD
AND TENANT ARISING OUT OF THIS LEASE OR ANY OTHER INSTRUMENT, DOCUMENT, OR
AGREEMENT EXECUTED OR DELIVERED IN CONNECTION HEREWITH OR THE TRANSACTIONS
RELATED HERETO.
30. Environmental Requirements.
(a) Prohibition/Compliance. Except for Hazardous
Material contained in products used by Tenant in de minimis quantities for
ordinary cleaning and office purposes or contained in products used for
fire suppression, Tenant shall not permit or cause any party to bring any
Hazardous Material upon the Premises or the Project or transport, store,
use, generate, manufacture or release any Hazardous Material in or about
the Premises or the Project without Landlord's prior written consent which
may be withheld in Landlord's sole discretion. Tenant, at its sole cost and
expense, shall operate its business in the Premises in strict compliance
with all Environmental Requirements and shall remediate in a manner
satisfactory to Landlord any Hazardous Materials released on or from the
Project by Tenant, its agents, employees, contractors, subtenants or
invitees. Tenant shall complete and certify to disclosure statements as
requested by Landlord from time to time relating to Tenant's
transportation, storage, use, generation, manufacture or release of
Hazardous Materials on the Premises. The term "Environmental Requirements"
means all applicable present and future statutes, regulations, ordinances,
rules, codes, judgments, orders or other similar enactments of any
governmental authority or agency regulating or relating to health, safety,
or environmental conditions on, under, or about the Premises or the
environment, including without limitation, the following: the Comprehensive
Environmental Response, Compensation and Liability Act; the Resource
Conservation and Recovery Act; and all state and local counterparts
thereto, and any regulations or policies promulgated or issued thereunder.
The term "Hazardous Materials" means and includes any substance, material,
waste, pollutant, or contaminant listed or defined as hazardous or toxic,
or regulated by reason of its impact or potential impact on humans, animals
and/or the environment under any Environmental Requirements, asbestos and
petroleum, including crude oil or any fraction thereof, natural gas
liquids, liquefied natural gas, or synthetic gas usable for fuel (or
mixtures of natural gas and such synthetic gas). As defined in
Environmental Requirements, Tenant is and shall be deemed to be the
"operator" of Tenant's "facility" and the
24
"owner" of all Hazardous Materials brought on the Premises by Tenant, its
agents, employees, contractors or invitees, and the wastes, by-products, or
residues generated, resulting, or produced therefrom.
(b) Indemnity. Tenant hereby indemnifies and shall defend
and hold Landlord, its officers, directors, employees, agents and
contractors harmless from any and all claims, judgments, damages,
penalties, fines, costs, liabilities, or losses (including, without
limitation, diminution in value of the Premises or any portion of the
Project, damages for the loss or restriction on use of rentable or usable
space or of any amenity of the Premises or the Project, damages arising
from any adverse impact on marketing of space in the Premises or the
Project, and sums paid in settlement of claims, attorneys' fees, consultant
fees and expert fees) which arise during or after the Lease term as a
result of Tenant's breach of its obligations pursuant to Section 30(a).
This indemnification of Landlord by Tenant includes, without limitation,
costs incurred in connection with any investigation of site conditions or
any cleanup, remedial, removal, or restoration work required by any
federal, state or local governmental agency or political subdivision
because of Hazardous Materials present in the air, soil or ground water
above, on, or under the Premises which arise during or after the Lease term
as a result of Tenant's breach of its obligations pursuant to Section
30(a). Without limiting the foregoing, if the presence of any Hazardous
Materials on the Premises, the Building, the Project or any adjacent
property, caused or permitted by Tenant results in any contamination of the
Premises, the Project or any adjacent property, Tenant shall promptly take
all actions at its sole expense and in accordance with applicable law as
are necessary to return the Premises, the Project or any adjacent property,
to the condition existing prior to the time of such contamination, provided
that Landlord's approval of such action shall first be obtained, which
approval shall not unreasonably be withheld so long as such actions would
not potentially have any material adverse long-term or short-term effect on
the Premises or the Project.
(c) Landlord's Tests. Landlord shall have access to, and a
right to perform inspections and tests of, the Premises to determine
Tenant's compliance with Environmental Requirements, its obligations under
this Section 30, or the environmental condition of the Premises or the
Project. Access shall be granted to Landlord upon Landlord's prior notice
to Tenant and at such times so as to minimize, so far as may be reasonable
under the circumstances, any disturbance to Tenant's operations. Such
inspections and tests shall be conducted at Landlord's expense, unless such
inspections or tests reveal that Tenant has not complied with any
Environmental Requirement, in which case Tenant shall reimburse Landlord
for the reasonable cost of such inspection and tests. Landlord's receipt of
or satisfaction with any environmental assessment in no way waives any
rights that Landlord holds against Tenant.
(d) Tenant's Obligations. Tenant's obligations under this
Article 30 shall survive the expiration or earlier termination of the
Lease. During any period of time after the expiration or earlier
termination of this Lease required by Tenant or Landlord to complete the
removal from the Premises of any Hazardous Materials and the release and
termination of any licenses or permits restricting the use of the Premises,
Tenant shall continue to pay the full Rent in accordance with this Lease
for any portion of the Premises not relet by Landlord in Landlord's sole
discretion, which Rent shall be prorated daily.
25
(e) Landlord's AOM Plan. Landlord shall prepare and deliver
to Tenant, within 30 days of the date hereof, an Asbestos Operation and
Maintenance Plan with respect to the non-friable asbestos present in the
floor tile mastic in the Premises.
31. Tenant's Remedies/Limitation of Liability. Landlord shall
not be in default hereunder unless Landlord fails to perform any of its
obligations hereunder within 30 days after written notice from Tenant
specifying such failure (unless Landlord has failed to pay a sum of money
when due, in which case Landlord shall have 10 days in which to effect a
cure by paying such sum, or unless the performance of Landlord's
obligations will, due to the nature of the obligations, require a period of
time in excess of 30 days, in which case Landlord shall have such period of
time as is reasonably necessary to effect a cure). Upon any default by
Landlord, Tenant shall give notice by registered or certified mail to any
Holder of a Mortgage covering the Premises and to any landlord of any lease
of property in or on which the Premises are located and Tenant shall offer
such beneficiary, Holder and/or landlord a reasonable opportunity to cure
the default, including time to obtain possession of the Project by power of
sale or a judicial action if such should prove necessary to effect a cure;
provided Landlord shall have furnished to Tenant in writing the names and
addresses of all such persons who are to receive such notices. All
obligations of Landlord hereunder shall be construed as covenants, not
conditions; and, except as may be otherwise expressly provided in this
Lease, Tenant may not terminate this Lease for breach of Landlord's
obligations hereunder.
All obligations of Landlord under this Lease will be binding upon
Landlord only with respect to the obligations accruing during the period of
its ownership of the Premises and not thereafter. The term "Landlord" in
this Lease shall mean only the owner, for the time being of the Premises,
and upon the transfer by such owner of its interest in the Premises, such
owner shall thereupon be released and discharged from all obligations of
Landlord thereafter accruing, but such obligations shall be binding during
the Term upon each new owner for the duration of such owner's ownership;
including, without limitation, such new owner's obligation to provide
Tenant with peaceful and quiet enjoyment of the Premises as provided in
Section 24.
32. Inspection and Access. Subject to the provisions of this
Section 32, Landlord and its agents, representatives, and contractors may
enter the Premises at any reasonable time to inspect the Premises and to
make such repairs as may be required or permitted pursuant to this Lease
and for any other business purpose. Landlord and Landlord's representatives
may enter the Premises during business hours on not less than 48 hours
advance written notice (except in the case of emergencies in which case no
such notice shall be required and such entry may be at any time) for the
purpose of effecting any such repairs, inspecting the Premises, showing the
Premises to prospective purchasers and, during the last year of the Term;
to prospective tenants or for any other business purpose. Landlord may
erect a suitable sign on the Premises stating the Premises are available to
let or that the Project is available for sale. Landlord may grant
easements, make public dedications, designate Common Areas and create
restrictions on or about the Premises, provided that no such easement,
dedication, designation or restriction materially, adversely affects
Tenant's use or occupancy of the Premises for the Permitted use. At
Landlord's request, Tenant shall execute such instruments as may be
necessary for such easements, dedications or restrictions. Tenant shall at
all times, except in the case of emergencies, have the right to escort
Landlord or its agents, representatives, contractors or guests while the
same are in the Premises, provided such escort does not materially and
26
adversely affect Landlord's access rights hereunder. The names and
employers of persons entering the Premises on behalf of Landlord in a non-
emergency shall be disclosed to Tenant not less than 48 hours in advance in
advance of any such inspection.
33. Security. Tenant acknowledges and agrees that security
devices and services, if any, while intended to deter crime may not in
given instances prevent theft or other criminal acts and that Landlord is
not providing any security services with respect to the Premises. Tenant
agrees that Landlord shall not be liable to Tenant for, and Tenant waives
any claim against Landlord with respect to, any loss by theft or any other
damage suffered or incurred by Tenant in connection with any unauthorized
entry into the Premises or any other breach of security with respect to the
Premises. Tenant shall be solely responsible for the personal safety of
Tenant's officers, employees, agents, contractors, guests and invitees
while any such person is in, on or about the Premises and/or the Project.
Tenant shall at Tenant's cost obtain insurance coverage to the extent
Tenant desires protection against such criminal acts.
34. Force Majeure. Neither Landlord nor Tenant shall not be held
responsible for delays in the performance of its obligations hereunder when
caused by strikes, lockouts, labor disputes, weather, natural disasters,
inability to obtain labor or materials or reasonable substitutes therefor,
governmental restrictions, governmental regulations, governmental controls,
delay in issuance of permits, enemy or hostile governmental action, civil
commotion, fire or other casualty, and other causes beyond the reasonable
control of Landlord or Tenant ("Force Majeure"). Notwithstanding the
foregoing, in no event shall Tenant's inability to pay Rent or to meet its
financial obligations hereunder be deemed to be a cause beyond its control.
35. Brokers, Entire Agreement, Amendment. Landlord and Tenant
each represent and warrant that it has not dealt with any broker, agent or
other person (collectively, "Broker) in connection with this transaction
and that no Broker brought about this transaction, other than ▇▇▇▇▇▇/▇▇▇▇▇
Partnership (dba CRESA Partners). Landlord and Tenant each hereby agree to
indemnify and hold the other harmless from and against any claims by any
other Broker claiming a commission or other form of compensation by virtue
of having dealt with Tenant or Landlord, as applicable, with regard to this
leasing transaction. This Lease may not be amended except by an instrument
in writing signed by both parties hereto.
36. Limitation on Landlord's Liability. NOTWITHSTANDING ANYTHING
SET FORTH HEREIN OR IN ANY OTHER AGREEMENT BETWEEN LANDLORD AND TENANT TO
THE CONTRARY: (A) LANDLORD SHALL NOT BE LIABLE TO TENANT OR ANY OTHER
PERSON FOR (AND TENANT AND EACH SUCH OTHER PERSON ASSUME ALL RISK OF) LOSS,
DAMAGE OR INJURY, WHETHER ACTUAL OR CONSEQUENTIAL TO: TENANT'S PERSONAL
PROPERTY OF EVERY KIND AND DESCRIPTION, INCLUDING, WITHOUT LIMITATION TRADE
FIXTURES, EQUIPMENT, INVENTORY, SCIENTIFIC RESEARCH, SCIENTIFIC
EXPERIMENTS, LABORATORY ANIMALS, PRODUCT, SPECIMENS, SAMPLES, AND/OR
SCIENTIFIC, BUSINESS, ACCOUNTING AND OTHER RECORDS OF EVERY KIND AND
DESCRIPTION KEPT AT THE PREMISES AND ANY AND ALL INCOME DERIVED OR
DERIVABLE THEREFROM; (B) THERE SHALL BE NO PERSONAL RECOURSE TO LANDLORD
FOR ANY ACT OR OCCURRENCE IN, ON OR ABOUT THE PREMISES OR
27
ARISING IN ANY WAY UNDER THIS LEASE OR ANY OTHER AGREEMENT BETWEEN LANDLORD
AND TENANT WITH RESPECT TO THE SUBJECT MATTER HEREOF AND ANY LIABILITY OF
LANDLORD HEREUNDER SHALL BE STRICTLY LIMITED SOLELY TO LANDLORD'S INTEREST
IN THE PROJECT (INCLUDING NET PROCEEDS OF SALE THEREOF), AND IN NO EVENT
SHALL ANY PERSONAL LIABILITY BE ASSERTED AGAINST LANDLORD IN CONNECTION
WITH THIS LEASE NOR SHALL ANY RECOURSE BE HAD TO ANY OTHER PROPERTY OR
ASSETS OF LANDLORD OR ANY OF LANDLORD'S OFFICERS, EMPLOYEES, AGENTS OR
CONTRACTORS. UNDER NO CIRCUMSTANCES SHALL LANDLORD OR ANY OF LANDLORD'S
OFFICERS, EMPLOYEES, AGENTS OR CONTRACTORS BE LIABLE FOR INJURY TO TENANT'S
BUSINESS OR FOR ANY LOSS OF INCOME OR PROFIT THEREFROM.
37. Severability. If any clause or provision of this Lease is
illegal, invalid or unenforceable under present or future laws, then and in
that event, it is the intention of the parties hereto that the remainder of
this Lease shall not be affected thereby. It is also the intention of the
parties to this Lease that in lieu of each clause or provision of this
Lease that is illegal, invalid or unenforceable, there be added, as a part
of this Lease, a clause or provision as similar in terms to such illegal,
invalid or unenforceable clause or provision as may be possible and be
legal, valid and enforceable.
38. Signs; Exterior Appearance. Tenant shall not, without the
prior written consent of Landlord, which may be granted or withheld in
Landlord's sole discretion: (i) attach any awnings, exterior lights,
decorations, balloons, flags, pennants, banners, painting or other
projection to any outside wall of the Project, (ii) use any curtains,
blind, shades or screens other than Landlord's standard window coverings,
(iii) coat or otherwise sunscreen the interior or exterior of any windows,
(iv) place any bottles, parcels, or other articles on the window ▇▇▇▇▇, (v)
place any equipment, furniture or other items of personal property on any
exterior balcony, (vi) paint, affix or exhibit on any part of the Premises
or the Project any signs, notices, window or door lettering, placards,
decorations, or advertising media of any type which can be viewed from the
exterior of the Premises; provided, however, that subject to Landlord's
reasonable approval and all Legal Requirements, Tenant shall have the right
to erect signs reflecting Tenant's name on the Premises and on the Project
signs designated by Landlord for the use of tenants.
39. Miscellaneous.
(a) Notices. All notices or other communications between the
parties shall be in writing and shall be deemed duly given upon delivery or
refusal to accept delivery by the addressee thereof if delivered in person,
or upon actual receipt if delivered by reputable overnight guaranty
courier, addressed and sent to the parties at their addresses set forth
above. Landlord and Tenant may from time to time by written notice to the
other designate another address for receipt of future notices.
(b) Joint and Several Liability. If and when included
within the term "Tenant," as used in this instrument, there is more than
one person or entity, each shall be jointly and severally liable for the
obligations of Tenant.
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(c) Financial Information. Tenant shall furnish Landlord
with true and complete copies of (i) Tenant's most recent audited annual
financial statements within 90 days of the end of each of Tenant's fiscal
years during the Term, (ii) Tenant's most recent unaudited quarterly
financial statements within 60 days of the end of each of Tenant's first
three fiscal quarters of each of Tenant's fiscal year during the Term,
(iii) at Landlord's request from time to time, updated business plans,
including cash flow projections and/or pro forma balance sheets and income
statements, all of which shall be treated by Landlord as confidential
information, belonging to Tenant, (iv) corporate brochures and/or profiles
prepared by Tenant for prospective investors, and (v) any other financial
information or summaries that Tenant typically provides to its lenders or
shareholders; provided, however, that with respect to the items described
in clause (iii) above, Tenant may refuse to disclose any information which
it in good faith believes to be a trade secret or which it may not lawfully
disclose at such time.
(d) Recordation. Neither this Lease nor a memorandum of
lease shall be filed by or on behalf of Tenant in any public record.
Landlord may prepare and file, and upon request by Landlord Tenant will
execute, a memorandum of lease.
(e) Interpretation. The normal rule of construction to the
effect that any ambiguities are to be resolved against the drafting party
shall not be employed in the interpretation of this Lease or any exhibits
or amendments hereto. Words of any gender used in this Lease shall be held
and construed to include any other gender, and words in the singular number
shall be held to include the plural, unless the context otherwise requires.
The captions inserted in this Lease are for convenience only and in no way
define, limit or otherwise describe the scope or intent of this Lease, or
any provision hereof, or in any way affect the interpretation of this
Lease.
(f) Not Binding Until Executed. The submission by Landlord
to Tenant of this Lease shall have no binding force or effect, shall not
constitute an option for the leasing of the Premises, nor confer any right
or impose any obligations upon either party until execution of this Lease
by both parties.
(g) Limitations on Interest. It is expressly the intent of
Landlord and Tenant at all times to comply with applicable law governing
the maximum rate or amount of any interest payable on or in connection with
this Lease. If applicable law is ever judicially interpreted so as to
render usurious any interest called for under this Lease, or contracted
for, charged, taken, reserved, or received with respect to this Lease, then
it is Landlord's and Tenant's express intent that all excess amounts
theretofore collected by Landlord be credited on the applicable obligation
(or, if the obligation has been or would thereby be paid in full, refunded
to Tenant), and the provisions of this Lease immediately shall be deemed
reformed and the amounts thereafter collectible hereunder reduced, without
the necessity of the execution of any new document, so as to comply with
the applicable law, but so as to permit the recovery of the fullest amount
otherwise called for hereunder.
(h) Choice of Law. Construction and interpretation of this
Lease shall be governed by the internal laws of the state in which the
Premises are located, excluding any principles of conflicts of laws.
29
(i) Time. Time is of the essence as to the performance of
Landlord's and Tenant's obligations under this Lease.
(j) Incorporation by Reference. All exhibits and addenda
attached hereto are hereby incorporated into this Lease and made a part
hereof. If there is any conflict between such exhibits or addenda and the
terms of this Lease, such exhibits or addenda shall control.
(k) Confidentiality. Except as required by applicable law
or court order, Landlord and Tenant shall not distribute this Lease or
disclose any of the terms hereof to any third party other than their
respective insurers, banks and other financing sources, prospective
purchasers or investors, prospective assignees or subtenants, officers,
directors, employees and consultants ("Permitted Parties"). Landlord and
Tenant shall inform their respective Permitted Parties of this
confidentiality provision and shall be liable to the other party hereto for
any breach of this confidentiality provision by such Permitted Parties.
IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease
as of the day and year first above written.
TENANT:
EQUINIX, INC.,
a Delaware corporation
By:________________________________
Its: Chief Financial Officer
LANDLORD:
ARE-2425/2400/2450 ▇▇▇▇▇▇ Bayshore, LLC, a
Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P., a
Delaware limited partnership, sole member
By: ARE-QRS CORP., a Maryland corporation,
general partner
30
By: ______________________________________
Its: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel
31
.
EXHIBIT A TO LEASE
DESCRIPTION OF PREMISES
-----------------------
EXHIBIT B
DESCRIPTION OF PROJECT
----------------------
The land upon which the Project is situated is locate in the City of Mountain
View, County of Santa ▇▇▇▇▇, State of California, described as follows:
All of Parcel 3, as shown upon that certain Map entitled "Parcel Map being a
portion of Rancho De San Francisquito", which Map was filed for Record in the
Office of the Recorder of the County of Santa ▇▇▇▇▇, State of California, on
March 23, 1981, in Book 481 of Maps, at Pages 27 and 28.
[The foregoing legal description does not include any easements that may be
appurtenant to either the fee interest or the leasehold interest in such real
property]
The Project is depicted on the attached site map; the Premises are those areas
that have been cross-hatched.
EXHIBIT B
DESCRIPTION OF PROJECT
----------------------
34
EXHIBIT C TO LEASE
WORK LETTER
-----------
THIS WORK LETTER dated March 20, 2000 (this "Work Letter") is made and
entered into by and between ARE-2425/2400/2450 ▇▇▇▇▇▇ Bayshore, LLC, a Delaware
limited liability company ("Landlord"), and Equinix, Inc., a Delaware
corporation ("Tenant"), and is attached to and made a part of the Lease dated
March 20, 2000 (the "Lease"), by and between Landlord and Tenant. Any initially
capitalized terms used but not defined herein shall have the meanings given them
in the Lease.
1. General Requirements
(a) Tenant's Authorized Representative. Tenant designates
▇▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇ (either such individual acting alone, "Tenant's
Representative") as the only persons authorized to act for Tenant pursuant to
this Work Letter. Landlord shall not be obligated to respond to or act upon any
request, approval, inquiry or other communication ("Communication") from or on
behalf of Tenant in connection with this Work Letter unless such Communication
is in writing from Tenant's Representative. Tenant may change Tenant's
Representatives at any time upon not less than 5 business days advance written
notice to Landlord. No period set forth herein for any approval of any matter by
Tenant's Representative shall be extended by reason of any change in Tenant's
Representative.
(b) Landlord's Authorized Representative. Landlord designates
▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇▇▇▇▇ (either such individual acting alone, "Landlord's
Representative") as the only persons authorized to act for Landlord pursuant to
this Work Letter. Tenant shall not be obligated to respond to or act upon any
request, approval, inquiry or other Communication from or on behalf of Landlord
in connection with this Work Letter unless such Communication is in writing from
Landlord's Representative. Landlord may change Landlord's Representatives at any
time upon not less than 5 business days advance written notice to Tenant. No
period set forth herein for any approval of any matter by Landlord's
Representative shall be extended by reason of any change in Landlord's
Representative. Neither Landlord nor Landlord's Representative shall be
authorized to direct Tenant's contractors in the performance of Tenant's Work
(as hereinafter defined).
(c) Architects, Consultants and Contractors. Landlord and Tenant
hereby acknowledge and agree that the architect (the "TI Architect") for the
Tenant Improvements, the general contractor and any subcontractors for the
Tenant Improvements shall be selected by Tenant, subject to Landlord's approval,
which approval shall not be unreasonably withheld, conditioned or delayed.
(d) Development Schedule. The proposed schedule for design and
development of Tenant's Improvements (as defined below), including without
limitation the time
periods for delivery of construction documents and performance, shall be
generally in accordance with the Development Schedule attached hereto as
Schedule A, subject to such changes as Tenant shall reasonably require or as
provided in this Work Letter (the "Development Schedule").
2. Tenant Improvements.
(a) Tenant Improvements Defined. As used herein, "Tenant
Improvements" shall mean all improvements to the Premises desired by Tenant of a
fixed and permanent nature. Other than funding the TI Allowance (as defined
below) as provided herein, Landlord shall not have any obligation whatsoever
with respect to the finishing of the Premises for Tenant's use and occupancy.
(b) Tenant's Space Plans. Tenant shall deliver to Landlord
schematic drawings and outline specifications (the "TI Design Drawings")
detailing Tenant's requirements for the Tenant Improvements within 15 business
days of the date of Delivery of the Premises to Tenant. As promptly as
reasonably possible, but in no event more than 5 business days thereafter,
Landlord shall deliver to Tenant the written objections, questions or comments
of Landlord and the TI Architect with regard to the TI Design Drawings. Tenant
shall cause the TI Design Drawings to be revised to address such written
comments and shall resubmit said drawings to Landlord for approval thereafter.
Such process shall continue until Landlord has approved the TI Design Drawings.
(c) Working Drawings. Following the approval of the TI Design
Drawings by Landlord, Tenant shall cause the TI Architect to prepare and deliver
to Landlord for review and comment construction plans, specifications and
drawings for the Tenant Improvements ("TI Construction Drawings"), which TI
Construction Drawings shall be prepared substantially in accordance with the TI
Design Drawings. Tenant shall be solely responsible for ensuring that the TI
Construction Drawings reflect Tenant's requirements for the Tenant Improvements.
Landlord shall deliver its written comments on the TI Construction Drawings to
Tenant as promptly as reasonably possible, but in no event more than 5 business
days after Landlord's receipt of the same; provided, however, that Landlord may
not disapprove any matter that is consistent with the TI Design Drawings. Tenant
and the TI Architect shall consider all such comments in good faith and shall,
within 10 business days after receipt, notify Landlord how Tenant proposes to
respond to such comments. Any disputes in connection with such comments shall be
resolved in accordance with Section 2(d) hereof. Provided that the design
reflected in the TI Construction Drawings is consistent with the TI Design
Drawings, Landlord shall approve the TI Construction Drawings submitted by
Tenant. Once approved by Landlord, subject to the provisions of Section 2(d)
below, Tenant shall not materially modify the TI Construction Drawings except as
may be reasonably required in connection with the issuance of the TI Permit and
except as provided in Section 4.
(d) Approval and Completion. Upon any dispute regarding the
design of the Tenant Improvements, which is not settled within 5 business days
after notice of such dispute is delivered by one party to the other, Tenant
shall make the final decision regarding the design of the Tenant Improvements,
provided Tenant acts reasonably and such final decision is either consistent
with or a compromise between Landlord's and Tenant's positions with
36
respect to such dispute, provided further that all costs and expenses resulting
from any such decision by Tenant shall be payable out of the TI Fund, as defined
in Section 5(d) below. Any changes to the TI Construction Drawings following
Landlord's and Tenant's approval of same requested by Tenant shall be processed
as provided in Section 4 hereof.
3. Performance of Tenant's Work
(a) Definition of Tenant's Work. As used herein, "Tenant's Work"
shall mean the work of constructing the Tenant Improvements.
(b) Commencement and Permitting of Tenant's Work. Tenant shall
commence construction of the Tenant Improvements upon obtaining a building
permit (the "TI Permit") authorizing the construction of the Tenant Improvements
consistent with the TI Construction Drawings approved by Landlord. The cost of
obtaining the TI Permit shall be payable from the TI Fund. Landlord shall assist
Tenant in obtaining the TI Permit.
(c) Restrictions on Demolition of Existing Facilities. The
parties acknowledge that the Premises are currently designed for use as a
laboratory facility. The Tenant's Work will convert the Premises into commercial
office use. Prior to commencement of demolition of the current fixtures and
equipment in place in the Premises (the "Existing Facilities"), Tenant shall
obtain Landlord's consent, identifying any part of the Existing Facilities
Tenant intends to demolish or remove. Landlord shall have a reasonable
opportunity to remove, at Landlord's expense, the Existing Facilities prior to
the commencement of Tenant's Work, provided that Landlord's removal of the
Existing Facilities does not unreasonably interfere with or delay Tenant's Work.
(d) Selection of Materials, Etc. Where more than one type of
material or structure is indicated on the TI Construction Drawings approved by
Tenant and Landlord, the option will be within Tenant's reasonable discretion.
4. Changes. Any changes (other than Minor Variations) requested by
Tenant to the Tenant Improvements after the delivery and approval by Landlord of
the TI Design Drawings, shall be requested and instituted in accordance with the
provisions of this Section 4 and shall be subject to the written approval of
Landlord, such approval not to be unreasonably withheld, conditioned or delayed.
(a) Tenant's Right to Request Changes. If Tenant shall request
changes ("Changes"), Tenant shall request such Changes by notifying Landlord in
writing in substantially the same form as the AIA standard change order form (a
"Change Request"), which Change Request shall detail the nature and extent of
any such Change. Such Change Request must be signed by Tenant's Representative.
Landlord shall review and approve or disapprove such Change Request as soon as
reasonably possible, but in any event within 5 business days thereafter,
provided that Landlord's approval shall not be unreasonably withheld,
conditioned or delayed.
(b) Implementation of Changes. If Landlord approves such Change,
Tenant may cause the approved Change to be instituted.
37
5. Costs
(a) Budget For Tenant Improvements. Before the commencement of
construction of the Tenant Improvements, Tenant shall obtain a detailed
breakdown, by trade, of the costs incurred or which will be incurred, in
connection with the design and construction of Tenant's Work (the "Budget"). The
Budget shall be based upon the TI Construction Drawings approved by Landlord and
shall include a payment to Landlord, of administrative rent ("Administrative
Rent") equal to 5.0% of the TI Costs (as hereinafter defined) for monitoring and
inspecting the construction of Tenant's Work, which sum shall be payable from
the TI Fund. Such Administrative Rent shall include, without limitation, all
out-of-pocket costs, expenses and fees incurred by or on behalf of Landlord
arising from, out of, or in connection with, such monitoring of the construction
of the Tenant's Improvements, and shall be payable out of the TI Fund.
(b) TI Allowance. Landlord shall provide to Tenant tenant
improvement allowances (collectively, the "TI Allowance") as follows:
(i) a "Tenant Improvement Allowance" in the maximum amount
of $20.00 per rentable square foot in the Premises which is included in the Base
Rent set forth in the Lease; and
(ii) an "Additional Tenant Improvement Allowance" in the
maximum amount of $5.00 per rentable square foot in the Premises which shall, if
and to the extent used, result in adjustments to the Base Rent as set forth in
the Lease.
Before commencing any Tenant's Work, Tenant shall notify Landlord in writing how
much Additional Tenant Improvement Allowance, if any, Tenant has elected to
receive from Landlord. Such election shall be final and binding on Tenant, and
may not thereafter be modified without Landlord's consent, which may granted or
withheld in Landlord's sole and absolute discretion. The TI Allowance shall be
disbursed in accordance with this Work Letter.
(c) Costs Includable in TI Fund. The TI Fund shall be used
solely for the payment of design and construction costs in connection with the
construction of the Tenant Improvements, including, without limitation, the cost
of preparing the TI Design Drawings and the TI Construction Drawings, all costs
set forth in the Budget, including data and telecommunications cabling,
Landlord's Administrative Rent and the cost of Changes (collectively, "TI
Costs"). Notwithstanding anything to the contrary contained herein, the TI Fund
shall not be used to purchase any furniture, personal property or other non-
building system materials or equipment.
(d) Excess TI Costs. It is understood and agreed that Landlord
is under no obligation to bear any portion of the cost of any of the Tenant
Improvements except to the extent of the TI Allowance. The funds required to be
paid by Tenant for Tenant's Work, together with the remaining TI Allowance, is
herein referred to as the "TI Fund". Notwithstanding anything to the contrary
set forth in this Section 5(d), Tenant shall be fully and solely liable for TI
Costs and the cost of Minor Variations in excess of the TI Allowance.
38
(e) Payment for TI Costs. Landlord shall disburse the TI
Allowance once a month against a draw request providing the information
described in Schedule B, attached hereto, to the extent of Landlord's approval
thereof for payment, no later than 30 days following receipt of such draw
request.
6. Miscellaneous
(a) Consents. Whenever consent or approval of either party is
required under this Work Letter, that party shall not unreasonably withhold,
condition or delay such consent or approval, except as may be expressly set
forth herein to the contrary.
(b) Modification. No modification, waiver or amendment of this
Work Agreement or of any of its conditions or provisions shall be binding upon
Landlord or Tenant unless in writing signed by Landlord and Tenant.
(c) Counterparts. This Work Letter may be executed in any number
of counterparts but all counterparts taken together shall constitute a single
document.
(d) Governing Law. This Work Letter shall be governed by,
construed and enforced in accordance with the internal laws of the state in
which the Premises are located, without regard to choice of law principles of
such State.
(e) Time of the Essence. Time is of the essence of this Work
Agreement and of each and all provisions thereof.
(f) Default. Notwithstanding anything set forth herein or in
the Lease to the contrary, Landlord shall not have any obligation to perform any
work hereunder or to fund any portion of the TI Fund during any period Tenant is
in Default under the Lease:
(g) Severability. If any term or provision of this Work Letter
is declared invalid or unenforceable, the remainder of this Work Letter shall
not be affected by such determination and shall continue to be valid and
enforceable.
(h) Merger. All understandings and agreements, oral or written,
heretofore made between the parties hereto and relating to Landlord's Work are
merged in this Work Letter, which alone (but inclusive of provisions of the
Lease incorporated herein and the final approved constructions drawings and
specifications prepared pursuant hereto) fully and completely expresses the
agreement between Landlord and Tenant with regard to the matters set forth in
this Work Letter.
(i) Entire Agreement. This Work Letter is made as a part of and
pursuant to the Lease and, together with the Lease, constitutes the entire
agreement of the parties with respect to the subject matter hereof. This Work
Letter is subject to all of the terms and limitation set forth in the Lease, and
neither party shall have any rights or remedies under this Work Letter separate
and apart from their respective remedies pursuant to the Lease.
39
IN WITNESS WHEREOF, Landlord and Tenant have executed this Work Letter
to be effective on the date first above written.
TENANT:
EQUINIX, INC.,
a Delaware corporation
By: ______________________________________
Its: Chief Financial Officer
LANDLORD:
ARE-2425/2400/2450 Bayshore, LLC, a Delaware
limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P., a
Delaware limited partnership, sole member
By: ARE-QRS CORP., a Maryland corporation,
general partner
By: ______________________________________
Its: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, General Counsel
40
SCHEDULE A TO WORK LETTER
DEVELOPMENT SCHEDULE
--------------------
Event Date
----- ----
Execution of lease 3/20/00
Naming of Tenant's Representatives 3/20/00
Delivery of space plans for TI Design Drawings pursuant to Section 2(b) 5/15/00
of the Work Letter
Delivery of Preliminary TI Plans for pursuant to Section 2(c) of the 5/15/00
Work Letter
Delivery of TI Construction Drawings pursuant to Section 2(d) of the 6/12/00
Work Letter
Commence construction of Tenant Improvements 7/5/00
Substantial Completion of Tenant Improvements 9/15/00
Issuance of Temporary Certificate of Occupancy 9/20/00
SCHEDULE B TO WORK LETTER
1. Before any work is begun, Landlord shall have received a fully
executed copy of the construction contract for the Tenant Improvements and a
certificate of insurance complying with the terms of the Lease including with
respect to the construction of the Tenant Improvements.
2. For each progress payment AIA Forms G702 and G703(a), together
with Civil Code Section 3262 conditional lien waivers and lien releases for any
work done and previously paid for, invoices, inspection reports and such other
relevant documents as Landlord may reasonably require.
3. For the final draw, an AIA Form G704 Certificate of Substantial
Completion executed by both the TI Architect and the TI contractor, together
with final lien releases, final inspection reports, a certificate of occupancy
for the Premises and such other matters as Landlord may reasonably require.
EXHIBIT D TO LEASE
ACKNOWLEDGMENT OF DELIVERY DATE
This ACKNOWLEDGMENT OF DELIVERY DATE is made this day of __, 2000,
between ARE-2425/2400/2450 ▇▇▇▇▇▇ Bayshore, LLC, a Delaware limited liability
company ("Landlord"), and Equinix, Inc., a Delaware corporation ("Tenant"),
and is attached to and made a part of the Lease dated January 28, 2000 (the
"Lease"), by and between Landlord
-----
and Tenant. Any initially capitalized terms used but not defined herein shall
have the meanings given them in the Lease.
Landlord and Tenant hereby acknowledge and agree, for all purposes of
the Lease, that the Delivery Date of the Base Term of the Lease is _________,
2000, and the termination date of the Base Term of the Lease shall be midnight
on __________________.
IN WITNESS WHEREOF, Landlord and Tenant have executed this
ACKNOWLEDGMENT OF DELIVERY DATE to be effective on the date first above written.
TENANT:
EQUINIX, INC.,
a Delaware corporation
By:____________________________
Its:___________________________
LANDLORD:
ARE-2425/2400/2450 ▇▇▇▇▇▇ Bayshore, LLC, a
Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P., a
Delaware limited partnership, sole member
By: ARE-QRS CORP., a Maryland corporation,
general partner
By:_______________________
Its:______________________
44
EXHIBIT E TO LEASE
RULES AND REGULATIONS
---------------------
1. The sidewalk, entries, and driveways of the Project shall not be
obstructed by Tenant, or its agents, or used by them for any
purpose other than ingress and egress to and from the Premises.
2. Tenant shall not place any objects, including antennas, outdoor
furniture, etc., in the parking areas, landscaped areas or other
areas outside of its Premises, or on the roof of the Project.
3. Except for seeing-eye dogs, no animals shall be allowed in the
offices, halls, or corridors in the Project.
4. Tenant shall not disturb the occupants of the Project or
adjoining buildings by the use of any radio or musical instrument
or by the making of loud or improper noises.
5. If Tenant desires telegraphic, telephonic or other electric
connections in the Premises, Landlord or its agent will direct
the electrician as to where and how the wires may be introduced;
and, without such direction, no boring or cutting of wires will
be permitted. Any such installation or connection shall be made
at Tenant's expense.
6. Tenant shall not install or operate any steam or gas engine or
boiler, or other mechanical apparatus in the Premises, except as
specifically approved in the Lease. The use of oil, gas or
inflammable liquids for heating, lighting or any other purpose is
expressly prohibited. Explosives or other articles deemed extra
hazardous shall not be brought into the Project.
7. Parking any type of recreational vehicles is specifically
prohibited on or about the Project. Except for the overnight
parking of operative vehicles, no vehicle of any type shall be
stored in the parking areas at any time. In the event that a
vehicle is disabled, it shall be removed within 48 hours. There
shall be no "For Sale" or other advertising signs on or about any
parked vehicle. All vehicles shall be parked in the designated
parking areas in conformity with all signs and other markings.
All parking will be open parking, and no reserved parking,
numbering or lettering of individual spaces will be permitted
except as specified by Landlord.
8. Tenant shall maintain the Premises free from rodents, insects and
other pests.
9. Landlord reserves the right to exclude or expel from the Project
any person who, in the judgment of Landlord, is intoxicated or
under the influence of liquor or drugs or who shall in any manner
do any act in violation of the Rules and Regulations of the
Project.
10. Tenant shall not cause any unnecessary labor by reason of
Tenant's carelessness or indifference in the preservation of good
order and cleanliness. Landlord shall not be
responsible to Tenant for any loss of property on the Premises,
however occurring, or for any damage done to the effects of
Tenant by the janitors or any other employee or person.
11. Tenant shall give Landlord prompt notice of any material defects
in the water, lawn sprinkler, sewage, gas pipes, electrical
lights and fixtures, heating apparatus, or any other service
equipment affecting the Premises.
12. Tenant shall not permit storage outside the Premises, including
without limitation, outside storage of trucks and other vehicles,
or dumping of waste or refuse or permit any harmful materials to
be placed in any drainage system or sanitary system in or about
the Premises.
13. All moveable trash receptacles provided by the trash disposal
firm for the Premises must be kept in the trash enclosure areas,
if any, provided for that purpose.
14. No auction, public or private, will be permitted on the Premises
or the Project.
15. No awnings shall be placed over the windows in the Premises
except with the prior written consent of Landlord.
16. The Premises shall not be used for lodging, sleeping or cooking
or for any immoral or illegal purposes or for any purpose other
than that specified in the Lease. No gaming devices shall be
operated in the Premises.
17. Tenant shall ascertain from Landlord the maximum amount of
electrical current which can safely be used in the Premises,
taking into account the capacity of the electrical wiring in the
Project and the Premises and the needs of other tenants, and
shall not use more than such safe capacity. Landlord's consent to
the installation of electric equipment shall not relieve Tenant
from the obligation not to use more electricity than such safe
capacity.
18. Tenant assumes full responsibility for protecting the Premises
from theft, robbery and pilferage.
19. Tenant shall not install or operate on the Premises any machinery
or mechanical devices of a nature not directly related to
Tenant's ordinary use of the Premises and shall keep all such
machinery free of vibration, noise and air waves which may be
transmitted beyond the Premises.
46
EXHIBIT F TO LEASE
TENANT'S PERSONAL PROPERTY
--------------------------
[Tenant to Provide]
EXHIBIT G TO LEASE
ESTOPPEL CERTIFICATE
--------------------
THIS TENANT ESTOPPEL CERTIFICATE ("Certificate"), dated as of
_________, _________, is executed by __________________("Tenant") in favor
of [Buyer], a __________________, together with its nominees, designees and
assigns (collectively, "Buyer"), and in favor of together with its
nominees, designees and assigns (collectively, "Lender").
RECITALS
--------
A. Buyer and ("Landlord"), have entered into that certain
Purchase and Sale Agreement and Joint Escrow Instructions, dated as of, ▇▇-
(▇▇▇ "▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇"), whereby Buyer has agreed to purchase, among
other things, the improved real property located in the City of , County
of, State of, more particularly described on Exhibit A attached to the
Purchase Agreement (the "Property").
B. Tenant and Landlord have entered into that certain Lease
Agreement, dated as of _________ (together with all amendments,
modifications, supplements, guarantees and restatements thereof, the
"Lease"), for a portion of the Property.
C. Pursuant to the Lease, Tenant has agreed that upon the
request of Landlord, Tenant would execute and deliver an estoppel
certificate certifying the status of the Lease.
D. In connection with the Purchase Agreement, Landlord has
requested that Tenant execute this Certificate with an understanding that
Lender will rely on the representations and agreements below in granting to
Buyer a loan.
NOW, THEREFORE, Tenant certifies, warrants, and represents to
Buyer and Lender as follows:
1. Lease. Attached hereto as Exhibit B is a true, correct and
---------
complete copy of the Lease, including the following amendments,
modifications, supplements, guarantees and restatements thereof, which
together represent all of the amendments, modifications, supplements,
guarantees and restatements thereof:
____________________________________________________________
____________________________________________________________.
(If none, please state "None.")
2. Premises. Pursuant to the Lease, Tenant leases those certain
premises (the "Premises") consisting of approximately _________ rentable
square feet within the Property, as more particularly described in the
Lease. In addition, pursuant to the terms of the Lease, Tenant has the
[non-exclusive] right to use [_________ parking spaces/the parking area]
located on the Property during the term of the Lease. [Cross-out the
preceding sentence or portions thereof if inapplicable.]
3. Full Force of Lease. The Lease has been duly authorized,
executed and delivered by Tenant, is in full force and effect, has not been
terminated, and constitutes a legally valid instrument, binding and
enforceable against Tenant in accordance with its terms, subject only to
applicable limitations imposed by laws relating to bankruptcy and
creditor's rights.
4. Complete Agreement. The Lease constitutes the complete
agreement between Landlord and Tenant for the Premises and the Property,
and except as modified by the Lease amendments noted above (if any), has
not been modified, altered or amended.
5. Acceptance of Premises. Tenant has accepted possession and
is currently occupying the Premises.
6. Lease Term. The term of the Lease commenced on __________
and ends on __________, subject to the following options to extend:
_______________________________________________________. (If none, please
state "None.")
7. Purchase Rights. Tenant has no option, right of first
refusal, right of first offer, or other right to acquire or purchase all or
any portion of the Premises or all or any portion of, or interest in, the
Property, except as follows: ___________________________________________
_______________________. (If none, please state "None.")
8. Rights of Tenant. Except as expressly stated in this
Certificate, Tenant:
(a) has no right to renew or extend the term of the Lease;
(b) has no option or other right to purchase all or any
part of the Premises or all or any part of the Property;
(c) has no right, title, or interest in the Premises, other
than as Tenant under the Lease.
9. Rent.
(a) The obligation to pay rent under the Lease commenced on
__________. The rent under the Lease is current, and Tenant is not in
default in the performance of any of its obligations under the Lease.
(b) Tenant is currently paying base rent under the Lease in
the amount of $__________ per month. Tenant has not received and is not
presently entitled to any abatement, refunds, rebates, concessions or
forgiveness of rent or other charges, free rent, partial rent, or credits,
offsets or reductions in rent, except as follows:
_____________________________________________________. (If none, please
state "None.")
49
(c) Tenant's estimated share of operating expenses, common
area charges, insurance, real estate taxes and administrative and overhead
expenses is _____% and is currently being paid at the rate of $__________
per month, payable to: __________________________________________________.
(d) There are no existing defenses or offsets against rent due
or to become due under the terms of the Lease, and there presently is no
default or other wrongful act or omission by Landlord under the Lease or
otherwise in connection with Tenant's occupancy of the Premises, nor is
there a state of facts which with the passage of time or the giving of
notice or both could ripen into a default on the part of Tenant, or to the
best knowledge of Tenant, could ripen into a default on the part of
Landlord under the Lease, except as follows: _____________________________
________________________________. (If none, please state "None.")
10. Security Deposit. The amount of Tenant's security deposit
held by Landlord under the Lease is $__________.
11. Prepaid Rent. The amount of prepaid rent, separate from the
security deposit, is covering the period from to _____ to _____.
12. Insurance. All insurance, if any, required to be maintained
by Tenant under the Lease is presently in effect.
13. Pending Actions. There is not pending or, to the knowledge
of Tenant, threatened against or contemplated by the Tenant, any petition
in bankruptcy, whether voluntary or otherwise, any assignment for the
benefit of creditors, or any petition seeking reorganization or arrangement
under the federal bankruptcy laws or those of any state.
14. Tenant Improvements. As of the date of this Certificate, to
the best of Tenant's knowledge, Landlord has performed all obligations
required of Landlord pursuant to the Lease; no offsets, counterclaims, or
defenses of Tenant under the Lease exist against Landlord; and no events
have occurred that, with the passage of time or the giving of notice, would
constitute a basis for offsets, counterclaims, or defenses against
Landlord, except as follows: _____________________________________________
________________________. (If none, please state "None.")
15. Assignments by Landlord. Tenant has received no notice of
any assignment, hypothecation or pledge of the Lease or rentals under the
Lease by Landlord. Tenant hereby consents to an assignment of the Lease and
rents to be executed by Landlord to Buyer or Lender in connection with the
Loan and acknowledges that said assignment does not violate the provisions
of the Lease. Tenant acknowledges that the interest of the Landlord under
the Lease is to be assigned to Buyer or Lender solely as security for the
purposes specified in said assignment and Buyer or Lender shall have no
duty, liability or obligation whatsoever under the Lease or any extension
or renewal thereof, either by virtue of said assignment or by any
subsequent receipt or collection of rents thereunder, unless Buyer or
Lender shall specifically undertake such liability in writing. Tenant
agrees that upon receipt of a written notice from Buyer or Lender of a
default by Landlord under the Loan, Tenant will thereafter pay rent to
Buyer or Lender in accordance with the terms of the Lease.
50
16. Assignments by Tenant. Tenant has not sublet or assigned the
Premises or the Lease or any portion thereof to any sublessee or assignee
except as follows: ___________________________________________________. No
one except Tenant and its employees will occupy the Premises except as
described in the preceding sentence hereof. The address for notices to be
sent to Tenant is as set forth in the Lease.
17. Environmental Matters. The operation and use of the Premises
does not involve the generation, treatment, storage, disposal or release
into the environment of any hazardous materials, regulated materials and/or
solid waste, except those used in the ordinary course of operating for the
Permitted Use, as defined in the Lease, or otherwise used in accordance
with all applicable laws.
18. Succession of Interest. Tenant agrees that, in the event
Buyer or Lender succeeds to the interest of Landlord under the Lease:
(a) Buyer or Lender shall not be liable for any act or
omission of any prior landlord (including Landlord);
(b) Buyer or Lender shall not be liable for the return of
any security deposit;
(c) Buyer or Lender shall not be bound by any rent or
additional rent which Tenant might have prepaid under the Lease for more
than the current month;
(d) Buyer or Lender shall not be bound by any amendments or
modifications of the Lease made without prior consent of Buyer or Lender;
(e) Buyer or Lender shall not be subject to any offsets or
defenses which Tenant might have against any prior landlord (including
Landlord); or.
(f) Buyer or Lender shall not be liable under the Lease to
Tenant for the performance of Landlord's obligations under the Lease beyond
Buyer or Lender's interest in the Property.
19. Notice of Default. Tenant agrees to give Buyer and Lender a
copy of any notice of default under the Lease served upon Landlord at the
same time as such notice is given to Landlord. Tenant further agrees that
if Landlord shall fail to cure such default within the applicable grace
period, if any, provided in the Lease, then Buyer or Lender shall have an
additional 60 days within which to cure such default, or if such default
cannot be cured within such 60-day period, such 60-day period shall be
extended so long as Buyer or Lender has commenced and is diligently
pursuing the remedies necessary to cure such default (including, but not
limited to, commencement of foreclosure proceedings, if necessary to effect
such cure, in which event the Lease shall not be terminated while such
remedies are being pursued.
20. Notification by Tenant. From the date of this Certificate
and continuing until __________, Tenant agrees to immediately notify Buyer
and Lender, in writing by registered or certified mail, return receipt
requested, at the following addresses, on the
51
occurrence of any event or the discovery of any fact that would make any
representation contained in this Certificate inaccurate:
If To Buyer: __________________
__________________
__________________
__________________
With A Copy To: __________________
__________________
__________________
__________________
If To Lender: __________________
__________________
__________________
__________________
Tenant makes this Certificate with the knowledge that it will be
relied upon by Buyer and lender in agreeing to purchase the Property.
Tenant has executed this Certificate as of the date first written
above by the person named below, who is duly authorized to do so.
TENANT: _____________________,
a____________________
By: _________________
Name:____________
Its:_____________
52
EXHIBIT A TO ESTOPPEL CERTIFICATE
Legal Description
-----------------
EXHIBIT B TO ESTOPPEL CERTIFICATE
Copy of Lease
-------------
EXHIBIT H TO LEASE
SUBORDINATION, NON-DISTURBANCE AND
----------------------------------
ATTORNMENT AGREEMENT
--------------------
THIS SUBORDINATION, NON-DISTURBANCE AND ATTORNMENT AGREEMENT is
made and entered into as of __________ ___, _____ ("Agreement"), by and
between ALEXANDRIA REAL ESTATE EQUITIES, INC., a Maryland corporation
together with its nominees, designees and assigns (collectively,
"Landlord"), ____________________, a __________________ ("Tenant"), and
____________________, a __________ ("Mortgagee").
WHEREAS, Mortgagee is making a loan to Landlord and others
evidenced by a certain promissory note ("Note"), and secured by, among
other things, a deed of trust/mortgage to be recorded prior hereto in the
public records of the City of _________, County of _________, State of
__________ ("Mortgage") constituting a lien upon the real property
described in Exhibit A hereto (the "Real Property"); and
---------
WHEREAS, ______________________________ and Tenant have entered
into a Lease Agreement dated as of ____________________ __, _____
("Lease"), for certain leased premises encompassing
_______________________________________ located in __________, containing
approximately ____________________ net square feet (hereinafter
collectively referred to as "Premises"); and
WHEREAS, the Lease is subordinate to the Mortgage and to the
right, title, and interests of Mortgagee thereto and thereunder; and
WHEREAS, Mortgagee wishes to obtain from Tenant certain
assurances that Tenant will attorn to Mortgagee in the event of a
foreclosure by Mortgagee or the exercise of other rights under the
Mortgage; and
WHEREAS, Tenant wishes to obtain from Mortgagee certain
assurances that Tenant's possession of the Premises will not, subject to
the terms and conditions of this Agreement, be disturbed by reason of a
foreclosure of the lien of the Mortgage on the Real Property; and
WHEREAS, Tenant and Mortgagee are both willing to provide such
assurances to each other upon and subject to the terms and conditions of
this Agreement.
NOW, THEREFORE, in consideration of the above, the mutual
promises hereinafter set forth, and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties
hereto mutually agree as follows:
1. Affirmation. Tenant hereby agrees that the Lease now is and
shall be subject and subordinate in all respects to the Mortgage and to all
renewals, modifications and extensions thereof until such time that the
Mortgage is released, satisfied or otherwise discharged, subject to the
terms and conditions of this Agreement. Landlord and Tenant hereby
affirm that the Lease is in full force and effect and that the Lease has
not been modified or amended except as follows: ___________________________
__________________________. Mortgagee hereby confirms that it is the holder
of the Note and the beneficiary of the Mortgage and has full power and
authority to enter into this Agreement.
2. Attornment and Non-Disturbance.
(a) So long as Tenant is not in default under the Lease
(beyond Tenant's receipt of notice from Landlord and any grace period
granted Tenant under the Lease to cure such default) as would entitle the
Landlord to terminate the Lease or would cause without any further action
of the Landlord, the termination of the Lease or would entitle the Landlord
to dispossess Tenant thereunder then Mortgagee agrees with Tenant that in
the event the interest of Landlord shall be acquired by Mortgagee or in the
event Mortgagee comes into possession of or acquires title to the Real
Property by reason of foreclosure or foreclosure sale or the enforcement of
the Mortgage or the Note or other obligation secured thereby or by a
conveyance in lieu thereof, or as a result of any other means then:
(i) Subject to the provisions of this Agreement, Tenant's
occupancy and possession of the Premises and Tenant's rights and
privileges under the Lease or any extensions, modifications or
renewals thereof or substitutions therefor (in accordance with the
Lease and the Mortgage) shall not be disturbed, diminished or
interfered with by Mortgagee during the term of the Lease (or any
extensions or renewals thereof provided for in the Lease);
(ii) Mortgagee will not join Tenant as a party defendant in
any action or proceeding for the purpose of terminating Tenant's
interest and estate under the Lease because of any default under the
Mortgage; and
(iii) The Lease shall continue in full force and effect and
shall not be terminated except in accordance with the terms of the
Lease.
(b) Tenant shall be bound to Mortgagee under all of the terms,
covenants and conditions of the Lease for the balance of the term thereof
remaining (and any extensions or renewals thereof which may be effected in
accordance with any option contained in the Lease) with the same force and
effect as if Mortgagee were the landlord under the Lease, and Tenant does
hereby agree to attorn to Mortgagee as its landlord, said attornment to be
effective and self-operative without the execution of any other instruments
on the part of either party hereto immediately upon Mortgagee's succeeding
to the interest of Landlord under the Lease. Upon request of Lender, Tenant
shall execute and deliver to Lender an agreement reaffirming such
attornment.
(c) If the Mortgage is foreclosed and any party ("Purchaser")
other than Mortgagee purchases the Premises and succeeds to the interest of
Landlord under the Lease, Tenant shall likewise be bound to Purchaser and
Tenant hereby covenants and agrees to attorn to Purchaser in accordance
with all of the provisions of this Agreement; provided, however, that
-------- -------
Purchaser shall have transmitted to Tenant a written document in recordable
form, whereby
56
Purchaser agrees to recognize Tenant as its lessee under the Lease and agrees to
be directly bound to Tenant for the performance and observance of all the terms
and conditions of the Lease required to be performed or observed by Landlord
thereunder, subject to and in accordance with the terms of this Agreement.
(d) Mortgagee agrees that if Mortgagee shall succeed to the interest
of Landlord under the Lease as above provided, Mortgagee shall be bound to
Tenant under all of the terms, covenants, and conditions of the Lease, and
Tenant shall, from and after Mortgagee's succession to the interest of Landlord
under the Lease, have the same remedies against Mortgagee that Tenant might have
had under the Lease against Landlord if Mortgagee had not succeeded to the
interest of Landlord; provided, however, that Mortgagee (and Purchaser, as the
-------- -------
case may be) shall not be:
(i) liable for any act or omission of any prior lessor
(including Landlord) occurring prior to the date that Mortgagee or
Purchaser acquired title to the Premises;
(ii) subject to any offsets, counterclaims or defenses which
Tenant might have against any prior lessor (including Landlord);
(iii) bound by any previous payment of rent or additional rent
for a period greater than 1 month unless such prepayment shall have been
consented to in writing by Mortgagee;
(iv) bound by any amendment or modification of the Lease made
prior to the date Mortgagee or Purchaser succeeds to the interest of
Landlord without Mortgagee's written consent;
(v) liable to Tenant for any loss of business or any other
indirect or consequential damages from whatever cause; provided, however,
-------- -------
no inference shall be drawn from this clause (v) that Tenant would
otherwise be entitled (or not entitled) to recover for loss of business or
any other indirect or consequential damages; or
(vi) liable for the return of any security deposit unless such
deposit has been paid over to the Mortgagee.
The foregoing shall not be construed to modify or limit any right
Tenant may have at law or in equity against Landlord or any other prior owner of
the Real Property.
3. Notices. All notices required or permitted to be given pursuant
to this Agreement shall be in writing and shall be sent postage prepaid, by
certified mail, return receipt requested or other nationally utilized overnight
delivery service. All notices shall be deemed delivered when received or
refused. Rejection or other refusal to accept or inability to deliver because of
changed address of which no notice has been given shall constitute receipt of
the notice, demand or request sent. Any such notice if given to Tenant shall be
addressed as follows:
57
__________________________
__________________________
__________________________
__________________________
if given to Landlord shall be addressed as follows:
c/o Alexandria Real Estate Equities, Inc.
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: General Counsel
if given to Mortgagee shall be addressed as follows:
__________________________
__________________________
__________________________
__________________________
4. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. The words "foreclosure" and "foreclosure sale" as used herein shall be
deemed to also include the acquisition of Landlord's estate in the Real Property
by voluntary deed, assignment or other conveyance or transfer in lieu of
foreclosure.
5. Modifications to Lease. Tenant shall not modify or amend the Lease
or terminate the same without Mortgagee's prior written consent. If Mortgagee
fails to provide Tenant with a written approval of the proposed modification,
amendment or termination within 10 business days after notice to Mortgagee of
such proposal, then Mortgagee shall be deemed to have rejected such proposal.
6. Additional Agreements. Tenant agrees that:
(a) it shall give Mortgagee copies of all notices of default and
requests for approval or consent by Landlord that Tenant gives to Landlord
pursuant to the Lease in the same manner as they are given to Landlord and no
such notice or other communication shall be deemed to be effective until a copy
is given to Mortgagee;
(b) whenever any consent or approval by Landlord is required to be
obtained by Tenant or is requested by Tenant such consent or approval shall not
be effective until it is also confirmed by or obtained from Mortgagee, provided
that Mortgagee shall respond within 30 days after Mortgagee's receipt of
Tenant's request and failure of Mortgagee to respond in such time period shall
be deemed to be a denial of such consent or approval;
58
(c) in all provisions of the Lease where Landlord is indemnified,
the reference to Landlord as an indemnitee shall be deemed to include Mortgagee
and any Purchaser and such agreement of indemnification shall survive the
repayment of the loan secured by the Mortgage and, to the extent provided in the
Lease, the expiration or termination of the Lease;
(d) Tenant shall name Mortgagee and any Purchaser as additional
insureds and loss payees, as applicable and appropriate, on all insurance
policies required by the Lease;
(e) this Agreement satisfies any condition or requirement in the
Lease relating to the granting of a non-disturbance agreement by Mortgagee, and
if there are inconsistencies between the terms and provisions of this Agreement
and the terms and provisions of the Lease dealing with non-disturbance by
Mortgagee, the terms and provisions hereof shall be controlling; and
(f) Mortgagee shall have no liability under the Lease until
Mortgagee succeeds to the rights of the Landlord under the Lease, and then only
during such period as Mortgagee is the landlord. At all times during which
Mortgagee is liable under the Lease, Mortgagee's liability shall be limited to
Mortgagee's interest in the Real Property.
7. Mortgagee Cure Rights. If Landlord shall have failed to cure any
default within the time period provided for in the Lease (including any
applicable notice and grace periods) and Tenant exercises any right to terminate
the Lease, Mortgagee, shall have an additional 30 days within which to cure such
default, or if such default cannot by the exercise of reasonable efforts by
Mortgagee be cured within such period, then such additional time as may be
reasonable necessary to effect such a cure (including, if necessary, sufficient
time to complete foreclosure proceedings) provided that Mortgagee shall commence
and thereafter diligently pursue remedies to cure such default. The Lease shall
not be terminated (i) while such remedies are being diligently pursued or (ii)
based upon a default which is personal to Landlord and therefore not susceptible
to cure by Mortgagee or which requires possession of the Premises to cure.
Mortgagee shall in no event be obligated to cure any such default by Landlord
unless it forecloses. Nothing in this Section 7 shall affect any of Tenant's
---------
termination rights under the Lease due to casualty or condemnation.
8. Direction to Pay. Landlord hereby directs Tenant and Tenant
agrees to make all payments of amounts owed by Tenant under the Lease directly
to Mortgagee from and after receipt by Tenant of notice from Mortgagee directing
Tenant to make such payments to Mortgagee. (As between Landlord and Mortgagee,
the foregoing provision shall not be construed to modify any rights of Landlord
under or any provisions of the Mortgage or any other instrument securing the
Note).
9. Conditional Assignment. With reference to any assignment by
Landlord of landlord's interest in the Lease, or the rents payable thereunder,
conditional in nature or otherwise, which assignment is made to Mortgagee,
Tenant agrees that the execution thereof by Landlord, and the acceptance thereof
by Mortgagee shall never be treated as an assumption by Mortgagee of any of the
obligations of Landlord under the Lease unless and until Mortgagee
59
shall have succeeded to the interest of Landlord. The foregoing sentence shall
not affect any of Tenant's rights against Landlord under the Lease.
[Signatures on next page]
60
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be properly executed by their duly authorized representatives as of the date
first above written.
TENANT: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇
___________________________,
a__________________________
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇
_______________________
Its: CFO
______________________
LANDLORD: [INSERT APPROPRIATE SIGNATURE BLOCK]
MORTGAGEE: /s/ [SIGNATURE ILLEGIBLE]
___________________________
a
By:________________________
Name: _____________________
Its: ______________________
EXHIBIT A TO SUBORDINATION AGREEMENT
Legal Description
March 20, 2000
Equinix, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇
Re: ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
ARE/Equinix
Gentlemen:
Reference is hereby made to that certain Lease Agreement (the "Lease")
dated as of March 20, 2000, by and between ARE-2425/2400/2450 ▇▇▇▇▇▇
Bayshore LLC, a Delaware limited liability company ("Landlord"), and
EQUINIX, INC., a Delaware corporation ("Tenant"). Capitalized terms used
herein without definition shall have the meanings defined for such terms in
the Lease.
As you and we have teamed, the floor tile mastic in portions of the
Premises contains nonfriable asbestos containing materials ("ACM"). Unless the
floor tiles are removed or otherwise disturbed, our principal obligation with
respect to this ACM would be the preparation of an Asbestos Operation and
Maintenance Plan, which would primarily address the procedures to be used in
connection with the replacement of loose floor tiles.
However, you may, in connection with the proposed demolition of the
existing interior improvements and the construction of your new space, elect to
remove some or all of the floor tiles and may trigger ACM abatement costs which
we would not otherwise have to bear. The allocation of these costs is, however,
not clearly set forth in the Lease or the Work Letter.
As a result, we wanted to clarify the Lease and the Work Letter as
follows: Landlord shall not be obligated to bear all or any portion of any ACM
abatement costs incurred as a result of the removal of the existing floor tiles
or any other demolition or construction work done by Tenant in connection with
the reconfiguration of the Premises as contemplated in the Work Letter or
otherwise, other than the Tenant Improvement Allowance provided under the Work
Letter.
If Tenant does remove such floor tiles and mastic or performs any
other ACM abatement in connection with the reconfiguration of the Premises as
contemplated in the Work Letter or otherwise ("ACM Work"), Landlord covenants
and agrees that Landlord shall execute appropriate bills of lading, disposal
applications and forms, abatement notices and hazardous waste manifests prepared
by or for Tenant's Abatement Contractor (hereinafter defined) identifying
Landlord as the owner and generator of waste ACM generated as a result of such
ACM Work ("Waste ACM") provided the following conditions are satisfied: (a)
prior to
commencing any ACM Work, Tenant shall provide Landlord with reasonable
satisfactory evidence that (i) Tenant has retained a reputable, qualified and
appropriately licensed and certified asbestos abatement contractor ("Abatement
Contractor") to (1) perform the removal and abatement of ACM in compliance with
all applicable Legal Requirements, (2) perform any air monitoring required in
connection therewith in compliance with all applicable Legal Requirements, (3)
transport and dispose of Waste ACM to the Altamont Landfill in Contra Costa
County, California (the "Landfill") in compliance with all applicable Legal
Requirements, and (4) prepare satisfactory documentation evidencing such ACM
abatement (collectively, (1) through (4) being hereinafter referred to as the
"Abatement"), (ii) Tenant has provided Landlord with a document reasonably
satisfactory to Landlord duly executed by Tenant, which states that Tenant shall
indemnify, defend and hold Landlord harmless from and against any and all
actions, claims, cost, damage, fees (including reasonable attorneys' fees and
costs), fines, expenses, liabilities or losses arising or in any way connected
with the Abatement (other than the owner and waste generator liability of
Landlord associated with the Waste ACM assuming proper disposal of the Waste ACM
at the Landfill); (iii) the Abatement Contractor has designed the Abatement to
reasonably minimize the amount of Waste ACM generated; and (iv) the Abatement
Contractor has delivered to Landlord certificates of insurance evidencing
insurance complying with Landlord's requirements, naming Landlord as an
additional insured and containing appropriate waivers of subrogation; (b)
Landlord is given at least 72 hours prior written notice of the time and date
the Abatement is planned to take place; (c) Tenant or the Abatement Contractor
obtain all appropriate permits required and make all appropriate filings or
notifications required in connection with the Abatement to comply with all
applicable Legal Requirements; and (d) within 30 days after the Abatement is
completed, the Abatement Contractor performing such Abatement delivers to
Landlord a final Abatement report in form and substance reasonably satisfactory
to Landlord for Landlord's records containing copies of air monitoring data,
filed notices, permits, applications, bills of lading and hazardous waste
manifests.
In addition and on an unrelated matter, we hereby confirm our
understanding that the phrase "removable personal property" as used in Section
15 of the Lease is intended to encompass all property included within the
definition of "Tenant's Property" in Section 12 of the Lease.
If the foregoing is acceptable to you, please execute and return a
copy of this letter with the fully executed Lease.
Sincerely,
ARE-2425/2400/2450 ▇▇▇▇▇▇ Bayshore, LLC,
a Delaware limited liability company
By: ALEXANDRIA REAL ESTATE EQUITIES, L.P.,
a Delaware limited partnership, sole member
64
By: ARE-QRS CORP., a Maryland corporation,
general partner
By: ________________________
Its: _______________________
Agreed and accepted this _____th day of March, 2000.
EQUINIX, INC.,
a Delaware corporation
By: ________________________________
Its: _______________________________
65