EXHIBIT 10.19
FIRST AMENDMENT TO OFFICE LEASE
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THIS FIRST AMENDMENT TO OFFICE LEASE (this "First Amendment") is made and
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entered into as of July 31, 1998, by and between NORFOLK ATRIUM, a California
Limited Partnership ("Lessor"), and INKTOMI CORPORATION, a California
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corporation ("Lessee").
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RECITALS:
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A. Lessor and Lessee have entered into that certain Office Lease and Addenda
to Lease dated as of July 31, 1997 (collectively, the "Lease"), with respect to
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the lease of certain "Initial Premises" and "Additional Space" (as such terms
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are defined in the Lease), as more particularly described in the Lease within
the building located at 0000 Xxxxx Xxxxxxx Xxxxxx, Xxx Xxxxx, Xxxxxxxxxx. All
initial capitalized terms used herein but not herein defined shall have the
meaning ascribed to such terms in the Lease.
X. Xxxxxx and Lessee now desire to enter into this First Amendment to
provide, among other things, for the expansion of the "Premises" leased pursuant
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to the Lease to include the "First Expansion Premises" and the "Second Expansion
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Premises" (as such terms are hereinafter defined), on the terms and subject to
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the conditions hereinafter set forth.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, Lessor and Lessee agree as follows:
1. The Term of the Lease of the Initial Premises is hereby extended such that
the Expiration Date for the Initial Premises shall be October 31, 2003. Monthly
Base Rent for the Initial Premises for the period of such extension from
November 1, 2002 through and including October 31, 2003, shall be as follows:
$57,137.10 per month ($3.65 per month per square foot of Rentable Area within
the Initial Premises) for the period from November 1, 2002 through and including
June 30, 2003; and shall be $58,702.50 per month ($3.75 per month per square
foot of Rentable Area within the Initial Premises) for the period from July 1,
2003 through and including October 31, 2003. The Term of the lease of the
Additional Space shall remain unchanged such that the Expiration Date for the
Additional Space shall remain October 31, 2001.
2. From and after the date hereof, the "Premises" leased pursuant to the
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Lease shall be deemed to include (in addition to the premises theretofore leased
to Lessee pursuant to the Lease, as amended hereby) that certain premises
located immediately adjacent to the Initial Premises, containing approximately
480 square feet of Rentable Area, designated as "Suite 304" on the Floor Plan
attached hereto as Schedule 1 and incorporated herein by this reference (the
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"First Expansion Premises"). The lease of the First Expansion Premises pursuant
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hereto shall be for a lease term which is co-terminous with the Term of the
lease of the Initial Premises (as extended pursuant to Section 1 above, and as
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may be further extended pursuant to Section 5 below), and otherwise subject to
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all terms and conditions of the Lease applicable to the Initial Premises (except
as hereinafter provided and except for such other terms and conditions as are
specifically or by their operation limited to the Initial Premises), subject to
the following:
(a) The First Expansion Premises shall be leased on an entirely "AS
IS", "WHERE IS", basis, with no representations or warranties, express or
implied, by Lessor, Lessee hereby agreeing and acknowledging (1) that Lessee
has had the opportunity to inspect the First Expansion Premises and shall
accept the First Expansion Premises on the date hereof in their existing
condition, and (2) that Lessor shall have absolutely no obligation to improve
or alter the First Expansion Premises for the benefit of Lessee or to provide
Lessee with any allowance for the improvement of the First Expansion Premises;
except, however, that upon delivery of possession to Lessee, the First
Expansion Premises shall be in "broom clean" condition and otherwise in good
operating condition, order and repair, including, without limitation, all
building systems serving the First Expansion Premises. The First Expansion
Premises shall be deemed to contain 480 square feet of Rentable Area for all
purposes hereof notwithstanding any deviation in actual Rentable Area thereof.
Lessee may improve the First Expansion Premises in accordance with the
provisions of Exhibit "C" to the Lease (entitled "Work Letter"), which shall
be separately applicable to the initial improvement of the First Expansion
Premises as if fully set forth herein, subject to the following: (i)
references in such Exhibit "C" to the "Premises" shall be deemed to refer to
the First Expansion Premises; (ii) there shall be no "Tenant Improvement
Allowance" payable from Lessor to Lessee within the First Expansion Premises;
(iii) the term "Tenant Improvements" shall mean any tenant improvements that
Lessee elects to make to the First Expansion Premises provided that Lessor
shall have the right to approve such Tenant Improvements, which approval shall
not be unreasonably withheld or delayed; (iv) Lessee may use any architect
selected by Lessee in connection with the Tenant Improvements, provided that
Lessor shall have the right to approve of such architect, which approval shall
not be unreasonably withheld or delayed; and (v) Lessee may use any general
contractor selected by Lessee in connection with the Tenant Improvements,
provided that Lessor shall have the right to approve of such general
contractor, which approval shall not be unreasonably withheld or delayed.
Notwithstanding anything to the contrary contained in the Lease or herein,
Lessee (and not Lessor) shall be responsible for making all alterations or
improvements required to cause the First Expansion Premises to comply with
applicable laws, regulations, ordinances or orders of any public agencies
(including, without limitation, laws respecting use and access by disabled
persons, including, without limitation, the Americans with Disabilities Act of
1990). Notwithstanding anything to the contrary contained in this First
Amendment, the parties hereby agree that the First Expansion Premises is
presently available for occupancy by Lessee, and Lessor shall be deemed for
all purposes hereof to have delivered possession to Lessee of the First
Expansion Premises upon the execution and delivery of this First Amendment by
Lessee and Lessor.
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(b) In addition to the other rental amounts owing pursuant to the
Lease (as amended by this First Amendment), Lessee shall be responsible for
monthly Base Rent with respect to the First Expansion Premises in the
following amounts:
Monthly Base Rent
From and Including Per Rentable Square Foot Monthly Base Rent
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Date hereof-June 30, 1999 $2.75 $1,320.00
July 1, 1999-June 30, 2000 $2.90 $1,392.00
July 1, 2000-June 30, 2001 $3.05 $1,464.00
July 1, 2001-June 30, 2002 $3.20 $1,536.00
July 1, 2002-June 30, 2003 $3.35 $1,608.00
July 1, 2003-October 31, 2003 $3.50 $1,680.00
Base Rent for the First Expansion Premises shall be prorated for any partial
month during the Term and payable on the first day of each month during the Term
from and after the date hereof in accordance with the provisions of the Lease
governing payment of Base Rent for the Initial Premises.
(c) From and after the date hereof, Lessee shall be responsible for
Lessee's Percentage Share of Excess Expenses for the First Expansion Premises
based upon Base Expenses of $7.10 per square foot per year of Rentable Area
within the Building, in the same manner as Lessee's Percentage Share of Excess
Expenses are payable under the Lease with respect to the Initial Premises.
Accordingly, Lessee's Percentage Share (for purposes of calculation of
Lessee's obligation for Excess Expenses) shall be increased as of the date
hereof to the amount of 9.97% (based upon a total of 16,134 square feet of
Rentable Area, being the sum of 15,654 square feet of Rentable Area within the
Initial Premises plus 480 square feet of Rentable Area within the First
Expansion Premises). Upon inclusion of the Additional Space into the Premises
pursuant to the Lease, Lessee's Percentage Share shall be further adjusted to
reflect the additional Rentable Area of such Additional Space.
(d) Each of Lessor and Lessee warrants that it has had no dealing with
any real estate broker or agents in connection with the negotiation of the
lease of the First Expansion Premises who shall be entitled to or can claim a
commission or fee in connection therewith. Each party agrees to indemnify,
defend and hold the other party harmless from and against any and all claims,
demands, losses, liabilities, lawsuits, judgments, and costs and expenses
(including, without limitation, reasonable attorneys' fees and expenses) with
respect to any alleged leasing commission or equivalent compensation alleged
to be owing in connection with the lease of the First Expansion Premises on
account of dealings of the indemnifying party with any real estate broker or
agent.
3. As used in this First Amendment, the "Second Expansion Premises" shall
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mean those certain premises located on the third (3rd) floor of the Building,
designated on Schedule 1 attached hereto as "Suite 318" containing approximately
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3,897 square feet of Rentable Area, "Suite 320" containing approximately 1,518
square feet of Rentable Area, "Suite 323" containing approximately 2,287 square
feet of Rentable Area, "Suite 325" containing approximately 4,552 square feet of
Rentable Area, and "Suite 336" containing approximately 3,876 square feet of
Rentable Area. From and after the date upon which the applicable portion of the
Second Expansion Premises is made available for occupancy by Lessee, the
"Premises" leased pursuant to the Lease shall be deemed to include (in addition
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to the premises theretofore leased to Lessee pursuant to the Lease, as amended
hereby) such portion of the Second Expansion Premises. The lease of the Second
Expansion Premises pursuant hereto shall be for a lease term which is co-
terminous with the Term of the lease of the Initial Premises (as extended
pursuant to Section 1 above, and as may be further extended pursuant to Section
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5 below), and otherwise subject to all terms and conditions of the Lease
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applicable to the Initial Premises (except as hereinafter provided and except
for such other terms and conditions as are specifically or by their operation
limited to the Initial Premises), subject to the following:
(a) Each of the suites comprising the Second Expansion Premises shall
be separately made available for occupancy by Lessee in accordance with the
following. "Suite 318" and "Suite 320" as shown on Schedule 1 are
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presently available for occupancy by Lessee, and Lessor shall be deemed for
all purposes hereof to have delivered possession to Lessee of such "Suite
318" and "Suite 320" upon the execution and delivery of this First
Amendment by Lessee and Lessor. The parties hereby acknowledge that "Suite
323", "Suite 325" and "Suite 336" as shown on Schedule 1 are presently
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occupied by existing occupants and, accordingly, shall not be available for
occupancy by Lessee until Lessee's receipt of written notice thereof from
Lessor. Lessor makes no representation or warranty, express or implied as
to the date(s) upon which any of such premises shall be available for
occupancy by Lessee and no delay in Lessor's making of any of such suite(s)
available for occupancy by Lessee shall affect the lease thereof pursuant
hereto or subject Lessor to any liability with respect thereto or for any
loss or damage resulting therefrom (subject to the provisions of Section
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3(b) below respecting the Allowance amount for the Second Expansion
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Premises and subject to the final sentence of this Section 3(a)). The
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parties agree that available for occupancy by Lessee shall mean the date
on which Lessor actually delivers possession of the applicable portion of
the Second Expansion Premises to Lessee in the condition required under
this First Amendment. Notwithstanding anything to the contrary contained
herein, as to each suite comprising a portion of the Second Expansion
Premises, until such suite is made available for occupancy by Lessee, the
Premises leased by Lessee shall not include such suite, and neither
Lessee nor Lessor shall have any obligations under the Lease (as hereby
amended) as to such suite. Following the applicable dates of inclusion of
each of "Suite 323", "Suite 325" and "Suite 336" within the Premises in
accordance herewith, the parties hereto shall execute a commencement
memorandum confirming such dates. Notwithstanding anything to the
contrary contained in this First Amendment, if any of the suites
comprising a portion of the Second Expansion Premises has not been made
available for occupancy by Lessee by December 1, 1998 (any such suite
which have not then been made available for occupancy by Lessee are
referred to herein as an "Undelivered
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Suite(s)"), then Lessee shall thereafter until the applicable Undelivered
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Suite is made available for occupancy by Lessee, have the right to elect to
delete the applicable Undelivered Suite from the Second Expansion Premises, in
the event of which election, it shall be deemed as if such Undelivered Suite
was never included within the Second Expansion Premises, Lessee shall have no
further right or obligation to lease such Undelivered Suite and Lessor shall
have no further obligation to lease such Undelivered Suite to Lessee.
(b) The Second Expansion Premises shall be leased on an entirely "AS
IS", "WHERE IS", basis, with no representations or warranties, express or
implied, by Lessor, Lessee hereby agreeing and acknowledging (1) that Lessee
has had the opportunity to inspect the Second Expansion Premises and shall
accept the Second Expansion Premises on the respective dates upon which the
portions thereof are made available for occupancy by Lessee pursuant hereto in
their then existing condition, and (2) that Lessor shall have absolutely no
obligation to improve or alter the Second Expansion Premises for the benefit
of Lessee or to provide Lessee with any allowance for the improvement of the
Second Expansion Premises except as expressly set forth below; except,
however, that upon delivery of possession to Lessee, the applicable portion of
the Second Expansion Premises shall be in "broom clean" condition and
otherwise in good operating condition, order and repair, including, without
limitation, all building systems serving such applicable portion of the Second
Expansion Premises. The suites comprising the Second Expansion Premises shall
be deemed to contain the respective amounts of Rentable Area specified in the
first sentence of this Section 3 for all purposes hereof notwithstanding any
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deviation in actual Rentable Area thereof. Lessee may improve the Second
Expansion Premises (as each respective portion of the Second Expansion
Premises is made available for occupancy by Lessee) in accordance with the
provisions of Exhibit "C" to the Lease (entitled "Work Letter"), which shall
be separately applicable to the initial improvement of each portion of the
Second Expansion Premises as if fully set forth herein, subject to the
following: (i) references in such Exhibit "C" to the "Premises" shall be
deemed to refer to the applicable portion of the Second Expansion Premises;
(ii) the amount of the "Tenant Improvement Allowance" shall be $6.00 per
square foot of Rentable Area within the applicable portion of the Second
Expansion Premises, except, however, that as to any portion of the Second
Expansion Premises which is not made available for occupancy by Lessee until
after the date which is seventy (70) days following the full execution and
delivery of this First Amendment by Lessee and Lessor, the amount of the
"Tenant Improvement Allowance" shall be $8.00 per square foot of Rentable Area
within such applicable portion of the Second Expansion Premises; (iii) the
term "Tenant Improvements" shall mean any tenant improvements that Lessee
elects to make to the applicable portion of the Second Expansion Premises
provided that Lessor shall have the right to approve such Tenant Improvements,
which approval shall not be unreasonably withheld or delayed; (iv) Lessee may
use any architect selected by Lessee in connection with the Tenant
Improvements, provided that Lessor shall have the right to approve of such
architect, which approval shall not be unreasonably withheld or delayed; and
(v) Lessee may use any general contractor selected by Lessee in connection
with the Tenant Improvements, provided that Lessor shall have the right to
approve of such general contractor, which approval shall not be unreasonably
withheld or delayed. Notwithstanding anything to the contrary contained in the
Lease or herein, Lessee (and not Lessor) shall be responsible for making all
alterations or improvements required to cause the Second Expansion Premises to
comply with applicable laws, regulations, ordinances or orders of any public
agencies (including, without limitation, laws respecting use and access by
disabled persons, including, without limitation, the Americans with
Disabilities Act of 1990).
(c) In addition to the other rental amounts owing pursuant to the
Lease (as amended by this First Amendment), Lessee shall be responsible for
monthly Base Rent with respect to the Second Expansion Premises in the
following amounts:
Monthly Base Rent
From and Including Per Rentable Square Foot
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Date of inclusion of
applicable premises within
the Premises-June 30, 1999 $3.25
July 1, 1999-June 30, 2000 $3.35
July 1, 2000-June 30, 2001 $3.45
July 1, 2001-June 30, 2002 $3.55
July 1, 2002-June 30, 2003 $3.65
July 1, 2003-October 31, 2003 $3.75
Base Rent for each portion of the Second Expansion Premises shall be prorated
for any partial month during the Term during which such portion thereof is
included within the Premises, and shall be payable on the first day of each
month during the Term from and after the inclusion of the applicable portion of
the Second Expansion Premises into the Premises in accordance with the
provisions of the Lease governing payment of Base Rent for the Initial Premises.
(d) From and after the respective dates of inclusion thereof within
the Premises in accordance herewith, Lessee shall be responsible for Lessee's
Percentage Share of Excess Expenses for the portions of the Second Expansion
Premises then included within the Premises, based upon Base Expenses of $7.62
per square foot per year of Rentable Area within the Building, and otherwise
in the same manner as Lessee's Percentage Share of Excess Expenses are payable
under the Lease with respect to the Initial Premises. Lessee's Percentage
Share with respect to the Second Expansion Premises (for purposes of
calculation of Lessee's obligation for Excess Expenses with respect to the
Second Expansion Premises) shall be separately calculated from Lessee's
Percentage Share for the Initial Premises, First Expansion Premises and the
Additional Space due to the fact that there is a different amount of Base
Expenses for purposes of such calculation.
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(e) Each of Lessor and Lessee warrants that it has had no dealing with
any real estate broker or agents in connection with the negotiation of the
lease of the Second Expansion Premises who shall be entitled to or can claim a
commission or fee in connection therewith, except BT Commercial (the
"Broker"), whose commission in the amount of $3.50 per square foot of
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Rentable Area within Xxxxx 000 xxx Xxxxx 000 plus $2.50 per square foot of
Rentable Area within Suite 323, 325 and 336, shall be earned by the Broker,
and due and payable from Lessor to Broker, fifty percent (50%) upon execution
and delivery of this Lease by both Lessor and Lessee, and fifty percent (50%)
upon commencement of occupancy and payment of rent for the applicable portion
of the Second Expansion Premises. Each party agrees to indemnify, defend and
hold the other party harmless from and against any and all claims, demands,
losses, liabilities, lawsuits, judgments, and costs and expenses (including,
without limitation, reasonable attorneys' fees and expenses) with respect to
any alleged leasing commission or equivalent compensation (other than any
amount owing to Broker from Lessor pursuant to the foregoing) alleged to be
owing in connection with the lease of the Second Expansion Premises on account
of dealings of the indemnifying party with any real estate broker or agent.
4. Addendum 8 of the Lease (entitled "Option to Extend Term") and Addendum 10
of the Lease (entitled "Rent During Extended Term") shall each continue in
effect, except, however, that the option to extend granted pursuant to Addendum
8 shall relate only to the Additional Space (and not to the Initial Premises,
the First Expansion Premises or the Second Expansion Premises), and the
determination of Base Rent during the Extended Term pursuant to Addendum 10
shall relate only to Base Rent for the Additional Space (and not to the Initial
Premises, the First Expansion Premises or the Second Expansion Premises).
5. Lessee shall have the option to extend the Term of the Lease for the
Initial Premises, First Expansion Premises and the Second Expansion Premises for
an additional period of three (3) years commencing upon November 1, 2003 and
expiring upon October 31, 2006 (the "Third Floor Extended Term"), subject to the
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same provisions as are set forth in Addendum 8 and Addendum 10 with respect to
the Additional Space (in accordance with Section 4 above), which shall be
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separately applicable to the extension of the Term of the lease of Initial
Premises, First Expansion Premises and the Second Expansion Premises for the
Third Floor Extended Term as if fully set forth herein, subject to the
following:
(a) References to the "Premises", "Initial Premises" or "Additional
Space" shall be deemed to refer to the Initial Premises, the First Expansion
Premises and the Second Expansion Premises and the option to extend granted
pursuant hereto shall apply concurrently to, and only to all of, the Initial
Premises, the First Expansion Premises and the Second Expansion Premises (such
that Lessee shall not have any option to extend with respect to only a portion
thereof).
(b) References to the "Extended Term" shall be deemed to refer to the
Third Floor Extended Term.
(c) The Option Notice must be delivered no later than October 31, 2002;
(d) Base Rent during the Third Floor Extended Term shall be the then
current Fair Market Rental Value of the Initial Premises, the First Expansion
Premises and the Second Expansion Premises at November 1, 2003, but in no
event less than the monthly Base Rent in effect for the Initial Premises, the
First Expansion Premises and the Second Expansion Premises for the month of
October 2003.
6. Upon the full execution and delivery of this First Amendment by the
parties, Lessee shall increase the Security Deposit held by Lessor pursuant to
the Lease by the amount of $53,742.50 (being one month's Base Rent (at their
respective initial rental rates) for the First Expansion Premises and the Second
Expansion Premises), which amount shall be deposited by Lessee with Lessor in
cash upon such execution. The Security Deposit, as so increased, shall be held,
applied, retained, replaced and/or refunded in accordance with the terms of the
Lease applicable to the Cash Security Deposit (although such $53,742.50 shall
not be applied as a credit toward the amount of the Cash Security Deposit if
deposited by Lessee with Lessor pursuant to the Lease).
7. Addendum 9 of the Lease (entitled "Delay in Commencement; Right to
Terminate") is hereby deleted and of no further force or effect.
8. Addendum 6 of the Lease (entitled "Parking") is hereby deleted, and
notwithstanding anything to the contrary contained in the Lease and in lieu of
any parking spaces which may be specified in the Lease to be provided to Lessee,
the parties agree that (and Article 1.1 of the Lease is hereby amended to
reference that) during the Term of the Lease (as hereby extended and as such
Term may be further extended in accordance herewith), the amount of parking to
which Lessee is entitled pursuant to the Lease shall equal three and one-half
(3.5) single, unreserved and undesignated parking spaces within the Common Area
per each one thousand (1,000) square feet of Rentable Area then included within
the Premises leased by Lessee (rounded to the nearest whole number).
9. Except as specifically amended and supplemented by this First Amendment,
the Lease shall continue in full force and effect. In the event of any conflict
between the provisions of the Lease and the provisions of this First Amendment,
the provisions of this First Amendment shall prevail.
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10. This First Amendment may be executed in any number of counterparts, any
number of which, taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, Lessee and Lessor have entered into this First Amendment as
of the date first written above.
LESSOR: LESSEE:
NORFOLK ATRIUM, a California INKTOMI CORPORATION,
Limited Partnership a California corporation
By: NAPA RIVER DEVCO, INC., By:__________________________________
a California corporation,
its general partner Print Name:__________________________
By: PROM MANAGEMENT GROUP, INC., Its:_________________________________
a California corporation,
dba Maxim Property Management,
as Agent for Owner
By:________________________________
Print Name:________________________
Its:_______________________________
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