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EXHIBIT 10.17
LEASE AGREEMENT
THIS LEASE AGREEMENT is made this 28th day of January, 2000, between ARE-
2425/2400/2450 XXXXXX BAYSHORE LLC, a Delaware limited partnership ("Landlord"),
and EQUINIX, INC., a Delaware corporation ("Tenant").
Address: 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx
Premises: That portion of the Project, containing approximately 42,632 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
0000 Xxxxxxxx Xxxxxxx, Xxxxxxxx Xxxx, Xxxxxxxxxx ("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: $3.25/rentable square foot/month Rentable Area of Premises:
42,632 sq. ft
Rentable Area of Project: 98,964 sq. ft. Tenant's Share of Operating
Expenses:
100%
Building's Share of the Project: 43.08% Security Deposit: None.
Target Commencement Date: The earlier of the date hereof or 2/1/2000
Rent Adjustment Percentage: CPI Adjustment Percentage (as defined in
Section 4) but not less than 3% nor more
than 5% annually.
Base Term: 84 months from the first day of the first full month during which
Base Rent is due and payable hereunder
Permitted Use: Office and related uses consistent with the character of the
Building
Address for Rent Payment: Landlord's Notice Address:
000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000 000 X. Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000 Xxxxxxxx, XX 00000
Attention: Accounts Receivable Attention: General Counsel
Tenant's Notice Address:
000 Xxxxxxxx Xxxxxx
Xxxxxxx Xxxx, XX 00000
Attention: Xx. Xxxxxx Xxxx
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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 - COMMENCEMENT DATE
[X] EXHIBIT E - RULES AND REGULATIONS [X] EXHIBIT F - TENANT'S PERSONAL
PROPERTY
[X] EXHIBIT G - ESTOPPEL CERTIFICATE [X] EXHIBIT H - NONDISTURBANCE AGREEMENT
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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; Commencement Date. Landlord shall
use reasonable efforts to make the Premises available to Tenant for Tenant's
Work under the Work Letter within 2 days of full execution of this Lease and
Tenant's delivery of evidence of the insurance required hereby and by the Work
Letter ("Delivery" or "Deliver"). 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 Commencement 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 Delays" shall have the meaning set forth for such terms
in the Work Letter. 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 "Commencement 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 Commencement 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 Commencement Date, if applicable: (i) Tenant shall accept
the Premises in their condition as of the Commencement 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 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
Commencement 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
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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 xxxxx, 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 May 1, 2000, provided,
however, that if the Premises are not available for Delivery (whether or not
this Lease has then been executed) on February 1, 2000, Base Rent shall not be
due until May 1, 2000, plus the number of days from February 1, 2000, until the
date the Premises are ready for Delivery.
(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 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
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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) and 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 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;
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(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;
(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;
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(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 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 6
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
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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."
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
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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 Commencement 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 Commencement 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 Commencement 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 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 Commencement 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.
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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 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 Commencement 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.
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
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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 alteration as may
be reasonably requested by Landlord, which notice and accompanying materials
shall be delivered to Landlord not less than 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
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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 be 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 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.
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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 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).
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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).
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 insurer; 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
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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.
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 cat. 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.
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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, 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.
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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, 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.
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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, 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:
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(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
(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
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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, 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' 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:
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(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 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 may be, 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,
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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 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
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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.
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.
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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 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
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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 "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.
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(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.
(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
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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 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 Xxxxxx/Xxxxx 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
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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 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 TENANTS 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, blinds, 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 xxxxx, (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.
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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.
(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
Net Office 2450 Bayshore Parkway/Equinix, Inc. - Page 30
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.
(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.
Net Office 2450 Bayshore Parkway/Equinix, Inc. - Page 31
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: /s/ Xxxxxx X. Xxxx
--------------------------------
Its: CFO
--------------------------------
LANDLORD:
ARE-2425/2400/2450 XXXXXX 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: ____________________________
[Notary seal]
Net Office 2450 Bayshore Parkway/Equinix, Inc. - Page 32
EXHIBIT A TO LEASE
DESCRIPTION OF PREMISES
-----------------------
[Graphic of Floor Plan]
Net Office 2450 Bayshore Parkway/Equinix, Inc. - Page 33
EXHIBIT B
DESCRIPTION OF PROJECT
----------------------
The land upon which the Project is situated is located in the City of Mountain
View, County of Santa Xxxxx, 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 Xxxxx, 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.
Net Office 2450 Bayshore Parkway/Equinix, Inc. - Page 34
EXHIBIT B
DESCRIPTION OF PROJECT
----------------------
[Graphic of Site Map]
Major Construction - Tenant Build 2450 Bayshore Parkway/Equinix, Inc. - Page 2
EXHIBIT C TO LEASE
WORK LETTER
-----------
THIS WORK LETTER dated January 28, 2000 (this "Work Letter") is made and
entered into by and between ARE-2425/2400/2450 Xxxxxx 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.
1. General Requirements
(a) Tenant's Authorized Representative. Tenant designates Xxxxxxxx
Xxxx and Xxxxx Xxxxxx-Xxxxxx Xxxxxx (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 Xxx
Xxxxxxx and Xxxxxx Xxxxx (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
Major Construction - Tenant Build 2450 Bayshore Parkway/Equinix, Inc. - Page 3
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 hereof. 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 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
Major Construction - Tenant Build 2450 Bayshore Parkway/Equinix, Inc. - Page 4
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 (time "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.
Major Construction - Tenant Build 2450 Bayshore Parkway/Equinix, Inc. - Page 5
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 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.
Major Construction - Tenant Build 2450 Bayshore Parkway/Equinix, Inc. - Page 6
(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 makers 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 maker 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.
Major Construction - Tenant Build 2450 Bayshore Parkway/Equinix, Inc. - Page 2
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: /s/ Xxxxxx X. Xxxx
------------------
Its: CFO
-----------------
LANDLORD:
ARE-2425/2400/2450 XXXXXX 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:______________________________
[Notary seal]
Major Construction - Tenant Build 2450 Bayshore Parkway/Equinix, Inc. - Page 2
SCHEDULE A TO WORK LETTER
Development Schedule
--------------------
Event Date
----- ----
Execution of lease __/__/__
Naming of Tenant's Representatives __/__/__
Delivery of space plans for TI Design Drawings
pursuant to Section 2(b) of the Work Letter 2/9/00
Delivery of Preliminary TI Plans for
pursuant to Section 2(c) of the Work Letter 2/16/00
Delivery of TI Construction Drawings
pursuant to Section 2(d) of the Work Letter 3/8/00
Commence construction of Tenant Improvements 3/1/00
Substantial Completion of Tenant Improvements 6/5/00
Issuance of Temporary Certificate of Occupancy 6/16/00
Major Construction - Tenant Build 2450 Bayshore Parkway/Equinix, Inc. - Page 2
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 makers as Landlord may reasonably require.
Commencement Date 2450 Bayshore Parkway/Equinix, Inc. - Page 1
EXHIBIT D TO LEASE
ACKNOWLEDGMENT OF COMMENCEMENT DATE
This ACKNOWLEDGMENT OF COMMENCEMENT DATE is made this _____ day of
__________, 2000, between ARE-2425/2400/2450 Xxxxxx 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 Commencement 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 COMMENCEMENT DATE to be effective on the date first above written.
TENANT:
EQUINIX, INC.,
a Delaware corporation
By:___________________________________
Its:
LANDLORD:
ARE-2425/2400/2450 XXXXXX 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:________________________
Rules and Regulations 2450 Bayshore Parkway/Equinix, Inc. - Page 1
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.
Rules and Regulations 2450 Bayshore Parkway/Equinix, Inc. - Page 1
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.
Tenant's Personal Property 2450 Bayshore Parkway/Equinix, Inc. - Page 1
EXHIBIT F TO LEASE
TENANT'S PERSONAL PROPERTY
--------------------------
[Tenant to Provide]
Estoppel Certificate 2450 Bayshore Parkway/Equinix, Inc. - Page 1
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
__________, 20__ (the "Purchase Agreement"), 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.]
Estoppel Certificate 2450 Bayshore Parkway/Equinix, Inc. - Page 2
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 Estoppel Certificate 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.")
Estoppel Certificate 2450 Bayshore Parkway/Equinix, Inc. - Page 3
(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 __________.
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
Estoppel Certificate 2450 Bayshore Parkway/Equinix, Inc. - Page 4
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.
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.
Estoppel Certificate 2450 Bayshore Parkway/Equinix, Inc. - Page 5
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 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.
Estoppel Certificate 2450 Bayshore Parkway/Equinix, Inc. - Page 1
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:________________________________
Estoppel Certificate 2450 Bayshore Parkway/Equinix, Inc. - Page 1
EXHIBIT A TO ESTOPPEL CERTIFICATE
Legal Description
-----------------
Estoppel Certificate 2450 Bayshore Parkway/Equinix, Inc. - Page 2
EXHIBIT B TO ESTOPPEL CERTIFICATE
Copy of Lease
-------------
Subordination Agreement 2450 Bayshore Parkway/Equinix, Inc. - Page 1
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
Subordination Agreement 2450 Bayshore Parkway/Equinix, Inc. - Page 2
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.
