SUBLEASE BETWEEN ORACLE USA, INC. AND GUIDEWIRE SOFTWARE, INC. 2211 Bridgepointe Parkway, San Mateo, California (“Bridgepointe Building 2”) Portions of Second (2nd), Third (3rd) and Fourth (4th) Floors
Exhibit 10.8
BETWEEN
ORACLE USA, INC.
AND
0000 Xxxxxxxxxxxx Xxxxxxx,
Xxx Xxxxx, Xxxxxxxxxx
(“Bridgepointe Building 2”)
Portions of Second (2nd), Third (3rd) and Fourth (4th) Floors
THIS SUBLEASE (“Sublease”) is entered into as of July 2, 2007, by and between ORACLE USA, INC., a Colorado corporation (“Sublandlord”) and GUIDEWIRE SOFTWARE, INC., a Delaware corporation (“Subtenant”), with reference to the following facts:
A. Pursuant to that certain Lease dated as of March 11, 1999 (the “Original Master Lease”), as the same has been amended by that certain First Amendment to Lease dated as of June 11, 1999 (the “First Amendment”), by that certain Second Amendment to Lease dated as of July 31, 2000 (the “Second Amendment”) and by that certain Third Amendment to Lease dated as of August 11, 2006 (the “Third Amendment”) (the Original Master Lease, as amended by the First Amendment, the Second Amendment and the Third Amendment, being referred to herein as the “Master Lease”), Sobrato Interests III (“Landlord”), as Landlord, leases to Sublandlord (successor in interest to Siebel Systems, Inc.), as tenant, certain space (the “Master Lease Premises”) consisting of the entire 141,496 rentable square foot building (the “Building” or “Building 2”) located at 0000 Xxxxxxxxxxxx Xxxxxxx in the City of San Mateo (“City”), State of California. The Building, together with (i) the 141,496 rentable square foot building located at 0000 Xxxxxxxxxxxx Xxxxxxx (“Building 1”) and (ii) the 167,505 rentable square foot building located at 0000 Xxxxxxxxxxxx Xxxxxxx (“Building 3”) comprise the “Project,” as more particularly defined in the Master Lease. Pursuant to separate leases, Sublandlord has leased all of Building 1 and all of Building 3; the Master Lease and Sublandlord’s leases for Building 1 and 2 all are scheduled to expire coterminously, on September 17, 2012. A complete copy of the Master Lease is attached hereto as Exhibit G.
B. Subtenant wishes to sublease from Sublandlord, and Sublandlord wishes to sublease to Subtenant, a portion of the Master Lease Premises containing approximately 88,152 rentable square feet as follows: (i) approximately 26,717 rentable square feet located on the second (2nd) floor of the Building, as more particularly described in Exhibit A-1 attached hereto and incorporated herein by reference (the “Second Floor Space”), (ii) approximately 30,718 rentable square feet located on the third (3rd) floor of the Building as more particularly described in Exhibit A-2 attached hereto and incorporated herein by reference (the “Third Floor Space”) and (iii) approximately 30,718 rentable square feet located on the fourth (4th) floor of the Building, as more particularly described in Exhibit A-3 attached hereto and incorporated herein by reference (the “Fourth Floor Space”) (the Second Floor Space, the Third Floor Space and the Fourth Floor Space being referred to herein collectively as the “Subleased Premises”).
NOW, THEREFORE, in consideration of the foregoing recitals, which are incorporated by reference into this Sublease, and for other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged by the parties, Sublandlord and Subtenant hereby agree as follows:
1. Sublease. Sublandlord hereby subleases to Subtenant and Subtenant hereby subleases from Sublandlord for the term, at the rental, and upon all of the conditions set forth herein, the Subleased Premises.
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2. Term.
(a) Generally. The term of this Sublease (“Term”) shall commence on the date (the “Commencement Date”) that is the later to occur of (x) September 1, 2007, (y) the date that Sublandlord delivers possession of the Subleased Premises to Subtenant and (z) the date upon which Sublandlord procures Landlord’s consent to this Sublease (the “Consent”, and the date upon which Sublandlord procures the Consent being the “Effective Date”); provided, that if Subtenant occupies any portion of the Subleased Premises for the purpose of conducting Tenant’s business operations therein prior to the Commencement Date as described above, the date upon which Subtenant so occupies the Subleased Premises will be deemed the Commencement Date. The Term will end on July 31, 2012 (the “Expiration Date”), unless sooner terminated pursuant to any provision hereof. Upon the determination of the Commencement Date, Sublandlord and Subtenant will enter into a letter agreement in the form of Exhibit B attached hereto.
(b) Early Access. Subtenant and Subtenant’s representatives shall have the right to enter the Subleased Premises during the period, if any, commencing on the Effective Date and ending on the day immediately preceding the Commencement Date (the date upon which Subtenant first has such access to the Subleased Premises being referred to herein as the “Early Access Date”) for the sole purposes of construction of Subtenant Alterations (defined in Section 15.2 below), installation of Subtenant’s personal property and the testing of equipment, furniture, fixtures and voice and data cabling, all subject to the terms, conditions and requirements of this Sublease. All of the rights and obligations of the parties under this Sublease (other than Subtenant’s obligation to pay Base Rent, but expressly including without limitation Subtenant’s obligation to pay excess utility charges, Subtenant’s obligation to carry insurance, Subtenant’s indemnification obligations, and/or Subtenant’s liability for damages, costs and expenses incurred by Sublandlord by reason of any default by Subtenant or failure on Subtenant’s part to comply with the terms of this Sublease) shall commence upon the Early Access Date, and Subtenant shall be deemed to occupy the Subleased Premises from and after the Early Access Date. Subtenant shall be liable for any damages to the Subleased Premises caused by Subtenant’s activities at the Subleased Premises from and after the Early Access Date and, prior to entering the Subleased Premises, Subtenant shall obtain all insurance it is required to obtain hereunder and shall provide certificates of such insurance to Sublandlord. Subtenant shall coordinate such entry with Sublandlord, and such entry shall be made in compliance with all terms and conditions of this Sublease, the Master Lease and the rules and regulations attached to the Master Lease.
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3. Rent.
3.1 Rent Payments. From and after the Commencement Date Subtenant shall pay to Sublandlord as base rent for the Subleased Premises during the Term (“Base Rent”) the following:
| Period |
Assumed Rentable Area of Subleased Premises |
Monthly Base Rent Rate Per Rentable Square Foot |
Monthly Base Rent |
|||||||||
| Months 1 - 6 |
40,000 | $ | 0.00 | $ | 0.00 | |||||||
| Months 7- 12 |
40,000 | $ | 1.75 | $ | 70,000.00 | |||||||
| Months 13-24 |
60,000 | $ | 1.80 | $ | 108,000.00 | |||||||
| Months 25 - 36 |
88,152 | $ | 1.86 | $ | 163,962.72 | |||||||
| Months 37 - 48 |
88,152 | $ | 1.91 | $ | 168,370.32 | |||||||
| Months 49 - Expiration Date |
88,152 | $ | 1.97 | $ | 173,659.44 | |||||||
As set forth in the table above, “Months 1-6” will be deemed to mean the initial one hundred eighty (180) days of the Term, and the period described as “Months 7-12” will mean the period commencing with the one hundred eighty first (181st) day of the Term and expiring as of the date of expiration of the calendar month in which the date immediately preceding the first (1st) anniversary of the Commencement Date occurs (if such period includes a partial calendar month, Base Rent will be payable for such partial calendar month at the rate of $2,333.33 per day). All subsequent “months” will be calendar months. As noted in the table set forth above, during the initial twenty-four (24) months of the Term, Base Rent will be payable as if Tenant occupied less than all of the Subleased Premises; however, during such period Subtenant will be entitled to occupy all of the Subleased Premises. Base Rent shall be paid on the first day of each month of the Term, except that Subtenant shall pay the first month’s Base Rent (in the amount of $70,000.00) to Sublandlord upon execution and delivery of this Sublease to Sublandlord; said pre-paid Base Rent will be applied towards Base Rent payable as of the seventh (7th) month of the Term. If the Term does not end on the last day of a calendar month, the Base Rent and Additional Rent (hereinafter defined) for any partial month shall be prorated by multiplying the monthly Base Rent and Additional Rent by a fraction, the numerator of which is the number of days of the partial month included in the Term and the denominator of which is the total number of days in the full calendar month. All Rent (hereinafter defined) shall be payable in lawful money of the United States, by regular bank check of Subtenant, to Sublandlord at the following address:
0000 Xxxxxx Xxxxxxxxx
Xxxxxxx, XX 00000
Attn: Lease Administration
or to such other persons or at such other places as Sublandlord may designate in writing.
3.2 Operating Costs. Except as expressly set forth herein, it is intended that this Sublease be a “net” sublease, such that all Base Rent payable by Subtenant to Sublandlord hereunder will be “net” of all costs to Sublandlord of operating and maintaining the Subleased Premises, the Building and the Project. Accordingly, Subtenant will be responsible for the payment of Subtenant’s Percentage Share (defined below) of both those costs of operation and maintenance of the Building and Project which are payable by Sublandlord to Landlord under the Master Lease, as well as those costs of operation and maintenance of the Subleased Premises, Building and Project which are Sublandlord’s direct responsibility under the Master Lease. The definitions and procedures set forth in this Section 3.2 will govern Subtenant’s payment to Sublandlord of such costs.
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(a) Definitions. The following terms shall have the meanings set forth below:
(1) “Additional Rent” shall mean the sums payable pursuant to Section 3.2(b) below.
(2) “Operating Costs” shall mean the aggregate of (i) Landlord Operating Costs and (ii) Sublandlord Operating Costs, each defined below.
(A) “Landlord Operating Costs” shall mean (i) Reimbursable Operating Costs (as such term is defined in the Master Lease) attributable to the Building, as described in Section 8.E of the Original Master Lease; (ii) Reimbursable Operating Costs attributable to the Project, as described in Section 8.E of the Original Master Lease, (iii) taxes payable by Sublandlord pursuant to Section 10 of the Original Master Lease, as well as (iv) costs payable by Sublandlord pursuant to Section 21. W of the Original Master Lease.
(B) “Sublandlord Operating Costs” shall mean (i) costs incurred by Sublandlord in complying with Sublandlord’s obligations as set forth in Section 8.B of the Original Master Lease, (ii) costs of utilities paid by Sublandlord pursuant to Section 11 of the Original Master Lease, and (iii) all other costs of Sublandlord incurred in the operation, maintenance, repair and replacement of any portion of the Building and/or Project (including, without limitation, any property management fee paid by Sublandlord to any entity performing management services at the Property and the fair market rental value of any property management office serving the Project, as well as the cost of providing the Project Amenities (described in Section 3.3 below)). Notwithstanding the foregoing to the contrary, Sublandlord Operating Costs will not include the following:
(i) the cost of capital improvements constructed by Sublandlord, except that Sublandlord Operating Costs will include the amortized cost of capital improvements constructed by Sublandlord (x) in order to comply with laws, rules or regulations first enacted or enforced against the Building or Project after the Commencement Date, or (y) to cause a reduction in one or more components in Sublandlord Operating Costs if Sublandlord in good faith believes the amortized cost of such improvements will approximate or be less than the cost savings over the useful life of the item in question or (z) to replace items which Sublandlord is obligated to maintain under the Master Lease or this Sublease. As used in this Section 3.2(a)(2)(B)(i), “amortization” shall mean allocation of the cost (together with reasonable financing charges) of the item being amortized equally to each year of the useful life of such item, as reasonably determined by Sublandlord. Notwithstanding the foregoing, however, Sublandlord may treat as an expense (chargeable in the year incurred), and not as a capital cost, any item costing less than Twenty Five Thousand and No/100 Dollars ($25,000.00);
(ii) any costs or expenses for which Sublandlord is reimbursed by insurance or condemnation proceeds or by a third party (other than by subtenants as part of Operating Costs);
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(iii) costs in connection with subleasing space in the Building or Project, including brokerage commissions and legal expenses;
(iv) lease concessions, including rental abatements and construction allowances, granted to specific subtenants;
(v) any penalties or damages that Sublandlord pays to Subtenant under this Sublease or to other occupants in the Project under their respective subleases;
(vi) costs incurred in connection with disputes between Sublandlord and its employees or between Sublandlord and other subtenants or Project occupants;
(vii) the wages and benefits of any employee who does not devote substantially all of his or her employed time to the Project unless such wages and benefits are prorated to reflect time spent on operating and managing the Project vis-á-vis time spent on matters unrelated to operating and managing the Project;
(viii) any amounts paid by Sublandlord to its parent organization or to a subsidiary or affiliate of Sublandlord for supplies and/or services rendered in connection with the Project to the extent the same materially exceed the costs of such supplies and/or services rendered by qualified, first-class unaffiliated third parties on a competitive basis;
(ix) any amount paid by Sublandlord for items and services for which Subtenant or any other occupant in the Project directly reimburses Sublandlord pursuant to their respective subleases (i.e., other than by payment of Operating Costs);
(x) acquisition costs (not including those incurred in ordinary maintenance and repair) for sculpture, paintings or other objects of art;
(xi) costs arising from the clean-up or remediation of any Hazardous Materials, except to the extent necessitated by Subtenant or anyone claiming by or through Subtenant or by the employees, agents or contractors of any of them;
(xii) penalties, interest and fines incurred as a result of Sublandlord’s failure to make payments and/or to file any tax or informational returns when due; and
(xiii) any personal property taxes of Sublandlord for equipment or items not used in the operation or maintenance of the Building or Project, nor connected therewith.
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(C) If, for thirty (30) or more days during any calendar year, less than ninety-five percent (95%) of the rentable area of the Building is occupied by subtenants, then the Sublandlord Operating Costs for such calendar year shall be deemed to be an amount equal to the Sublandlord Operating Costs which would normally be expected to have been incurred had the Building been at least ninety-five percent (95%) occupied throughout such year, as reasonably determined by Sublandlord (i.e., taking into account that certain expenses depend on occupancy (e.g., janitorial) and certain expenses do not (e.g., landscaping)). Furthermore, if Sublandlord shall not furnish any item or items of service the cost of which is included in Sublandlord Operating Costs to any portions of the Building because such portions are not occupied or because such item is not required by the occupant of such portion of the Building or such occupant is providing such service independently, then, for the purposes of computing Sublandlord Operating Costs, an equitable adjustment shall be made so that the cost of the item in question shall be shared only by occupants actually receiving the benefits thereof.
(3) “Rent” shall mean, collectively, Base Rent, Additional Rent, and all other sums payable by Subtenant to Sublandlord under this Sublease, whether or not expressly designated as “rent”, all of which are deemed and designated as rent pursuant to the terms of this Sublease. Base Rent and Additional Rent are payable hereunder in advance without setoff, deduction, notice or demand. Unless expressly set forth to the contrary in this Sublease, all other amounts payable by Subtenant hereunder are payable within ten (10) business days following Sublandlord’s delivery of an invoice therefor to Subtenant.
(4) “Subtenant’s Percentage Share” shall mean, as applicable given the context, Subtenant’s Building Percentage Share and/or Subtenant’s Project Percentage Share, as follows:
(A) “Subtenant’s Building Percentage Share” shall mean 62.30%, which is derived by dividing the rentable area of the Subleased Premises by the rentable area of the Building and multiplying the quotient by 100. Subtenant’s Building Percentage Share will be applicable to Landlord Operating Costs attributable to the Building and Sublandlord Operating Costs attributable to the Building.
(B) “Subtenant’s Project Percentage Share” shall mean 19.57%, which is derived by dividing the rentable area of the Subleased Premises by the rentable area of the Project and multiplying the quotient by 100. Subtenant’s Project Percentage Share will be applicable to Landlord Operating Costs attributable to the Project and Sublandlord Operating Costs attributable to the Project.
(b) Payment of Operating Costs. In addition to the Base Rent payable hereunder, from and after the Commencement Date, for each full or partial calendar year of the Term, Subtenant, as Additional Rent, shall pay the applicable Subtenant’s Percentage Share of Operating Costs for the then current calendar year. For the calendar year 2007, Sublandlord’s initial estimate is that Operating Costs will equal $.93 per rentable square foot per month.
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(c) Procedure. The determination and adjustment of Additional Rent payable hereunder shall be made in accordance with the following procedures:
(1) Landlord Operating Costs. Sublandlord shall give Subtenant written notice of its estimate of the amount of Subtenant’s Percentage Share of Landlord Operating Costs payable for each calendar year; such estimate may be aggregated with Sublandlord’s estimate of Sublandlord Operating Costs payable for such year. Subtenant may amend such estimate in good faith from time to time during any calendar year. On or before the first day of each calendar month during each full or partial calendar year throughout the Term, Subtenant shall pay to Sublandlord as Additional Rent one-twelfth (1/12th) of such estimated amount. If for any reason Sublandlord has not provided Subtenant with an estimate of the amount of Subtenant’s Percentage Share of Landlord Operating Costs on or before the first day of January of any calendar year during the Term, then (a) until the first day of the calendar month following the month in which Sublandlord delivers such estimate, Subtenant shall continue to pay to Sublandlord on the first day of each calendar month the sum payable by Subtenant under this Section 3.2(c)(1) for the month of December of the preceding year, and (b) together with such estimate, Sublandlord shall give notice to Subtenant stating whether the installments of Landlord Operating Costs payments previously made for such year were greater or less than the installments of Landlord Operating Costs payments to be made for such year, and (i) if there shall be a deficiency, Subtenant shall pay the amount thereof to Sublandlord within ten (10) business days after the delivery of Sublandlord’s estimate, or (ii) if there shall have been an overpayment, Sublandlord shall apply such overpayment as a credit against the next accruing monthly installment(s) of Subtenant’s Percentage Share of Landlord Operating Costs due from Subtenant until fully credited to Subtenant or, at Sublandlord’s discretion, Sublandlord may pay the amount thereof to Subtenant by check, and (c) on the first (1st) day of the calendar month following the month in which Sublandlord’s estimate is given to Subtenant and on the first day of each calendar month throughout the remainder of such calendar year, Subtenant shall pay to Sublandlord an amount equal to one-twelfth (1/12th) of the new Landlord Operating Costs payment, as described above. Subtenant’s estimated payments of Subtenant’s Percentage Share of Landlord Operating Costs shall be reconciled from time to time with the actual amounts thereof due as and when Sublandlord is notified by Landlord of the actual amounts of Landlord Operating Costs; and Sublandlord will deliver to Subtenant a copy of any such notice(s) from Landlord upon which such reconciliation may be based.
(2) Sublandlord Operating Costs.
(A) Sublandlord’s Estimate. On or about the Commencement Date, and on the first day of January of each subsequent full or partial calendar year during the Term, or as soon thereafter as is practicable, Sublandlord shall furnish Subtenant with a statement setting forth in reasonable detail Sublandlord’s estimate of Sublandlord Operating Costs for the calendar year in which the Commencement Date occurs or the forthcoming calendar year, as applicable; such estimate may be aggregated with Sublandlord’s estimate of Sublandlord Operating Costs payable for such year. On or before the first day of each calendar month during such year, Subtenant shall pay to Sublandlord as Additional Rent (i) one-twelfth (1/12th) of Subtenant’s Building Percentage Share of the estimated Sublandlord Operating Costs and (ii) one twelfth (1/12) of Subtenant’s Project Percentage Share of the estimated Sublandlord Operating Costs (as such estimate may be modified from time to time by Sublandlord). If for any reason Sublandlord has not provided Subtenant with an estimate of Sublandlord Operating Costs on or before the first day of January of any calendar year during the Term, then (a) until the first day of the calendar month following the month in which Subtenant
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is given Sublandlord’s estimate, Subtenant shall continue to pay to Sublandlord on the first day of each calendar month the sum payable by Subtenant under this Section 3.2(c)(2) for the month of December of the preceding year, and (b) promptly after Sublandlord’s estimate is furnished to Subtenant, Sublandlord shall give notice to Subtenant stating whether the installments of Sublandlord Operating Costs payments previously made for such year were greater or less than the installments of Sublandlord Operating Costs payments to be made for such year, and (i) if there shall be a deficiency, Subtenant shall pay the amount thereof to Sublandlord within ten (10) business days after the delivery of Sublandlord’s estimate, or (ii) if there shall have been an overpayment, Sublandlord shall apply such overpayment as a credit against the next accruing monthly installment(s) of Subtenant’s Percentage Share of Sublandlord Operating Costs due from Subtenant until fully credited to Subtenant or, at Sublandlord’s discretion, Sublandlord may pay the amount thereof to Subtenant by check, and (c) on the first (1st) day of the calendar month following the month in which Sublandlord’s estimate is given to Subtenant and on the first day of each calendar month throughout the remainder of such calendar year, Subtenant shall pay to Sublandlord an amount equal to one-twelfth (l/12th) of the new Sublandlord Operating Costs payment, as described above.
(B) Reconciliation of Sublandlord Operating Costs. On or about the first day of March of each calendar year, or as soon thereafter as is reasonably practicable, Sublandlord will furnish Subtenant with a statement of the actual Sublandlord Operating Costs for the preceding year, reconciling the actual amounts paid pursuant to Sublandlord’s estimate and the actual amounts payable hereunder. Within twenty (20) business days after Sublandlord’s delivery of such statement, Subtenant shall make a lump sum payment to Sublandlord in the amount, if any, by which Subtenant’s Percentage Share of Sublandlord Operating Costs for such preceding year, as shown on such statement, exceeds the aggregate of the monthly installments of Subtenant’s Percentage Share of Sublandlord Operating Costs paid during such preceding year. If Subtenant’s Percentage Share of Sublandlord Operating Costs, as shown on such statement, is less than the aggregate of the monthly installments of Subtenant’s Percentage Share of Sublandlord Operating Costs actually paid by Subtenant during such preceding year, then Sublandlord shall apply such amount to the next accruing monthly installment(s) of Subtenant’s Percentage Share of Sublandlord Operating Costs due from Subtenant until fully credited to Subtenant. Sublandlord’s failure to deliver or delay in delivering a statement of actual Sublandlord Operating Costs with respect to any calendar year shall in no event be construed as Sublandlord’s waiver of the right to so deliver such statement or collect Subtenant’s Percentage Share of Sublandlord Operating Costs as described herein, nor shall it be construed as a waiver of Subtenant’s obligation to pay such amounts.
(C) Subtenant’s Audit Right. Provided that Subtenant is not in default hereunder and has paid all amounts due hereunder (including all Additional Rent), Subtenant may, one hundred twenty (120) days after receiving Sublandlord’s annual statement of Sublandlord Operating Costs and costs for the services described in Section 6 below (“Service Costs”), give Sublandlord written notice (“Review Notice”) that Subtenant intends to cause an independent, nationally recognized certified public accountant who charges for its services on an hourly basis and is not compensated on a so-called “contingency” basis (a “Third Party Auditor”) to inspect, during normal business hours, Sublandlord’s accounting records with respect to Sublandlord Operating Costs and Service Costs for the calendar year covered by such statement (the “Subtenant Review”); provided, however, that, as a condition precedent to any such
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inspection, Subtenant shall deliver to Sublandlord a copy of Subtenant’s written agreement with such Third Party Auditor, which agreement shall include provisions which state that (i) such Third Party Auditor will not in any manner solicit or agree to represent any other occupant of the Project with respect to an audit or other review of Sublandlord’s accounting records at the Project, (ii) Subtenant and such Third Party Auditor shall maintain in strict confidence any and all information obtained in connection with the Subtenant Review and shall not disclose such information to any person or entity other than to the legal representatives and management personnel of Subtenant or as required by law, and (iii) Sublandlord is an intended third-party beneficiary of such agreement. Within a reasonable time (not to exceed sixty (60) days) after receipt of the Review Notice, Sublandlord shall make pertinent records available for inspection that are reasonably necessary for Subtenant to conduct its review. If any such records are maintained at a location other than the office of the Project, Subtenant may either inspect the records at such other location or pay for the reasonable cost of copying and shipping the records. Subtenant shall be solely responsible for all costs, expenses and fees incurred for the Subtenant Review. Within sixty (60) days after the records are made available to Subtenant, Subtenant shall have the right to give Sublandlord written notice (an “Objection Notice”) stating in reasonable detail any objection to Sublandlord’s statement of Sublandlord Operating Costs or Service Costs for the applicable year. If Subtenant fails to give Sublandlord an Objection Notice within such sixty (60) day period or fails to provide Sublandlord with a Review Notice within the one hundred twenty (120) day period described above, Subtenant shall be deemed to have approved Sublandlord’s statement of Sublandlord Operating Costs or Service Costs and shall be barred from raising any claims regarding Sublandlord Operating Costs or Service Costs for that calendar year. If Subtenant provides Sublandlord with a timely Objection Notice, Sublandlord and Subtenant shall work together in good faith to resolve any issues raised in Subtenant’s Objection Notice. If Sublandlord and Subtenant determine that Subtenant’s Percentage Share of Sublandlord Operating Costs or Service Costs for the calendar year was overstated by Sublandlord, Sublandlord shall provide Subtenant with a credit against Subtenant’s Percentage Share of Sublandlord Operating Costs or Service Costs next coming due in the amount of the overpayment by Subtenant. If Sublandlord and Subtenant determine that Subtenant’s Percentage Share of Sublandlord Operating Costs or Service Costs for the calendar year was understated by Sublandlord, Subtenant shall pay Sublandlord the amount of any underpayment within thirty (30) days thereafter. The parties’ sole remedy for an error in the determination of Subtenant’s Percentage Share of Sublandlord Operating Costs or Service Costs for any full or partial calendar year shall be for the parties to make appropriate payments or credits, as the case may be, to each other as set forth above. Subtenant shall be responsible for all costs and expenses associated with Subtenant’s Review, and Subtenant shall be responsible for all audit fees, attorneys’ fees and other costs of Subtenant relating to the resolution of any dispute pursuant to this Section (collectively, the “Costs”), provided that if the parties’ final resolution of the dispute concludes that Sublandlord overstated Sublandlord Operating Costs or Service Costs for such year by an amount in excess of five percent (5%) of actual Sublandlord Operating Costs or Service Costs, then Sublandlord shall be responsible for the Costs.
(d) Survival. The expiration or earlier termination of this Sublease shall not affect the rights and obligations of Sublandlord and Subtenant pursuant to this Section 3.2, and such obligations shall survive any expiration or earlier termination of this Sublease.
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3.3 Project Amenities Costs. Sublandlord will provide certain Project amenities (the “Project Amenities”) to occupants of the Project, including a fitness center (located in the Building), conference room (anticipated to be located in Building 2), cafeteria (located in Building 1) and, at Sublandlord’s discretion, a day care center. Once occupancy in the Project equals 100,000 rentable square feet or more, Sublandlord will commence operations of the proposed fitness center, conference room and limited cafeteria operations (limited operations means that pre-cooked or pre-prepared food and beverages will be available for sale, but full kitchen cooking operations will not yet commence); at such point as occupancy levels meet or exceed 250,000 rentable square feet, full cafeteria operations will commence. Subtenant will pay its pro-rata share of the cost of providing the Project Amenities (“Project Amenities Costs”) as part of Sublandlord Operating Costs; provided that for the purpose of such payment, such pro-rata share will be determined by dividing the rentable area of the Subleased Premises into the rentable area of the Project, net of the rentable area of the Project Amenities, with the pro-rata allocation to be determined by dividing the rentable area of the Subleased Premises by the rentable area of the Project, net of the rentable area of the Project Amenities, with the pro-rata allocation to be determined by dividing the rentable area of the Subleased Premises by the rentable area of the Project, net of the rentable area of the Project Amenities. Notwithstanding the foregoing, each employee of any Project occupant who desires to use the fitness center, will be required to pay a monthly fee (initially, $25.00 per month, but such fee may be adjusted from time to time by Sublandlord to account for increases in costs of operation of the fitness center) for the right to use the fitness center. Sublandlord will offset all such fees collected against the portion of Project Amenities Costs attributable to the fitness center and which would otherwise be included in Sublandlord Operating Costs.
4. Letter of Credit:
4.1 Initial Letter of Credit. Concurrently with execution hereof, Subtenant has delivered to Sublandlord an unconditional, irrevocable, transferable standby letter of credit (the “Initial Letter of Credit”) in a similar form (as reasonably acceptable to Sublandlord) to that form attached hereto as Exhibit D in the amount of $1,350,000.00 and issued by a financial institution acceptable to Landlord (which must have a credit rating of “AA” or better from both Xxxxx’x and Standard & Poor’s), as security for the full and faithful performance of Subtenant’s obligations under this Sublease. Sublandlord may draw upon the Initial Letter of Credit or any Replacement Letter of Credit (as that term is defined below) on or after the occurrence of either: (i) an uncured event of default under this Sublease; (ii) any failure by Subtenant to deliver to Sublandlord a Replacement Letter of Credit as and when required pursuant to this Section 4; (iii) an uncured failure by Subtenant to perform one or more of its obligations under this Sublease and the existence of circumstances in which Sublandlord is enjoined or otherwise prevented by operation of law from giving to Subtenant a written notice which would be necessary for such failure of performance to constitute an event of default, or (iv) the appointment of a receiver to take possession of all or substantially all of the assets of Subtenant, or an assignment of Subtenant for the benefit of creditors, or any action taken or suffered by Subtenant under any insolvency, bankruptcy, reorganization or other debtor relief proceedings, whether now existing or hereafter amended or enacted; provided that in the event of (i) or (iii), Sublandlord may, at Sublandlord’s sole option, draw upon a portion of the face amount of the Initial Letter of Credit or any Replacement Letter of Credit, as applicable, as required to compensate Sublandlord for damages incurred (with subsequent demands at Sublandlord’s sole election as Sublandlord incurs further damage).
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4.2 Delivery of Replacement Letter of Credit. Subtenant shall deliver to Sublandlord a new letter of credit (a “Replacement Letter of Credit”) (the Initial Letter of Credit and any Replacement Letter of Credit being generally referred to herein as a “Letter of Credit”) at least thirty (30) days prior to the expiry date of the Initial Letter of Credit or of any Replacement Letter of Credit held by Sublandlord. Each Replacement Letter of Credit delivered by Subtenant to Sublandlord shall: (i) be issued by a banking institution acceptable to Sublandlord in its reasonable judgment; (ii) be in the same form as the letter of credit attached to this Sublease as Exhibit D; (iii) bear an expiry date not earlier than one (1) year from the date when such Replacement Letter of Credit is delivered to Sublandlord; and (iv) be in an amount not less than the amount specified in Section 4(a). Upon the delivery to Sublandlord of a Replacement Letter of Credit as described in this Section 4(b), Sublandlord shall return the Initial Letter of Credit or any previous Replacement Letter of Credit then held by Sublandlord to the issuing bank. In any event, Subtenant will be obligated to maintain either the Initial Letter of Credit or a Replacement Letter of Credit until the date that is the later to occur of (x) the date that is thirty (30) days following the Expiration Date and (y) the date upon which Subtenant vacates the Subleased Premises and completes any restoration obligations of Subtenant hereunder.
4.3 Draw Upon Letter of Credit. All proceeds of a draw upon any Letter of Credit shall be, at Sublandlord’s sole election, either: (i) applied by Sublandlord to damages incurred by Sublandlord as a result of the event giving rise to the draw, or (ii) held by Sublandlord as a security deposit, and, at the sole election of Sublandlord, applied on one or more occasions to compensate Sublandlord for any foreseeable or unforeseeable loss or damage caused by the act or omission of Subtenant or Subtenant’s officers, agents, employees, independent contractors, or invitees (including, without limitation, to remedy defaults in the payment of rent, to repair damage caused by Subtenant or to clean the Subleased Premises). No trust relationship will be created herein between Sublandlord and Subtenant with respect to any such security deposit, Subtenant hereby waives any and all rights under and the benefits of Section 1950.7 of the California Civil Code, and all other provisions of law now in force or that become in force after the date of execution of this Sublease, to the extent that such laws provide that Sublandlord may claim from a security deposit only those sums reasonably necessary to remedy defaults in the payment of rent, to repair damage caused by Subtenant, or to clean the Subleased Premises. Sublandlord and Subtenant agree that Sublandlord may, in addition, claim those sums reasonably necessary to compensate Sublandlord for any other foreseeable or unforeseeable loss or damage caused by the act or omission of Subtenant or Subtenant’s officers, agents, employees, independent contractors, or invitees.
4.4 Sublandlord’s Transfer. If Sublandlord conveys or transfers its interest in the Subleased Premises and, as a part of such conveyance or transfer, Sublandlord assigns its interest in this Sublease: (i) the Initial Letter of Credit or any Replacement Letter of Credit shall be transferred to Sublandlord’s successor; (ii) Sublandlord shall be released and discharged from any further liability to Subtenant with respect to such Initial Letter of Credit and any Replacement Letter of Credit; (iii) Subtenant will be responsible for the payment of any transfer fee or charge imposed by the issuing bank and (iv) any Replacement Letter of Credit thereafter delivered by Subtenant shall state the name of the successor to Sublandlord as the beneficiary of such Replacement Letter of Credit and shall contain such modifications in the text of the Replacement Letter of Credit as are required to appropriately reflect the transfer of Sublandlord’s interest in the Subleased Premises.
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4.5 Reduction.
(a) Periodic Reductions. If, as of each applicable Reduction Date (defined below), the Reduction Conditions (defined below) apply, then upon written request by Subtenant, the face amount of the then-current Letter of Credit may be reduced by an amount equal to: (i) One Hundred Fifty Thousand Dollars ($150,000.00) as of the first (1st) Reduction Date, and (ii) Three Hundred Thousand Dollars ($300,000.00) as of each of the second (2nd) and third (3rd) Reduction Dates, and (iii) One Hundred Fifty Thousand Dollars ($150,000.00) as of the fourth (4th) Reduction Date. Such reductions may be accomplished by either (x) Subtenant submitting a Replacement Letter of Credit in the reduced face amount, at which point Sublandlord will return to Subtenant the then-existing Letter of Credit or (y) an amendment to the then-existing Letter of Credit. Notwithstanding the foregoing, if, following any reduction pursuant to the provisions of this Section 4.5, Subtenant is in default under this Sublease (beyond the giving of applicable notice and the passage of applicable grace periods), Sublandlord, in addition to any other remedy available to Sublandlord for such default, shall have the right to require that Subtenant reinstate the Letter of Credit to the initial face amount described in Section 4.1, in which event Subtenant shall so cause a Replacement Letter of Credit in the initial face amount to be delivered to Sublandlord within ten (10) days following notice of such election delivered by Sublandlord. Subtenant’s failure to so cause a Replacement Letter of Credit in such reinstated face amount to be timely delivered to Sublandlord shall constitute a material default under this Sublease without the necessity of additional notice or the passage of additional grace periods. As used herein, the “Reduction Dates” shall mean each of the first (1st) four (4) anniversaries of the Commencement Date, and the “Reduction Conditions” shall mean that, as of each such Reduction Date, all of the following apply: (x) Subtenant is not in default hereunder (beyond the giving of applicable notice and the passage of applicable grace periods), (y) Subtenant has not previously been in default hereunder (similarly defined) and (z) no event which, with the passage of time, would constitute a default hereunder (similarly defined) then exists.
(b) Notwithstanding the foregoing provisions of this Section 4.5(a) to the contrary, if, during the Term, Subtenant completes a public offering of its equity which is “firmly underwritten” by a recognized investment banking institution and the proceeds of which equal or exceed $75,000,000.00, then, upon written request by Subtenant, the face amount of the then-current Letter of Credit may be reduced to an amount equal to $450,000.00 then payable under this Sublease. However, if, following any such reduction, Subtenant is in default under this Sublease, Sublandlord shall have the right to require that Subtenant reinstate the Letter of Credit to the original amount required hereunder, in the same manner as is described in Section 4.5(a) above.
5. Use and Occupancy.
5.1 Use. The Subleased Premises shall be used and occupied only for general office use, and for no other use or purpose.
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5.2 Compliance with Master Lease.
(a) By Subtenant. Subtenant agrees that it will occupy the Subleased Premises in accordance with the terms of the Master Lease and will not suffer to be done or omit to do any act which may result in a violation of or a default under any of the terms and conditions of the Master Lease, or render Sublandlord liable for any damage, charge or expense thereunder. Subtenant further covenants and agrees to indemnify Sublandlord against and hold Sublandlord harmless from any claim, demand, action, proceeding, suit, liability, loss, judgment, expense (including attorneys fees) and damages of any kind or nature whatsoever arising out of, by reason of, or resulting from, Subtenant’s failure to perform or observe any of the terms and conditions of the Master Lease or this Sublease. Any other provision in this Sublease to the contrary notwithstanding, Subtenant shall pay to Sublandlord as Rent hereunder any and all sums which Sublandlord may be required to pay Landlord arising out of a request by Subtenant for, or use by Subtenant of, additional or over-standard Building services from Landlord (for example, but not by way of limitation, charges associated with after-hours HVAC usage and overstandard electrical charges).
(b) By Sublandlord. Sublandlord agrees that it will perform its obligations under the Master Lease during the Term and will not amend or modify the Master Lease in any way or knowingly take any action under the Master Lease which would increase Sublandlord’s obligations hereunder (other than in a de minimus way, such as requiring Subtenant to send notices to an additional address, etc.) or materially adversely affect Subtenant’s rights hereunder. Without limitation, Sublandlord agrees that it will not terminate the Master Lease without the prior written consent of Subtenant, except as Sublandlord may be entitled to terminate the Master Lease in the event of casualty or condemnation.
(c) Master Lease Renewal. Sublandlord will not exercise its rights to renew the Master Lease.
5.3 Rules and Regulations. Subtenant shall comply with the rules and regulations for the Building attached hereto as Exhibit E and such amendments or supplements thereto as Sublandlord may adopt from time to time with prior notice to Subtenant (the “Rules and Regulations”), as well as any applicable CC&R’s. Sublandlord agrees that (i) any Rules and Regulations promulgated by Sublandlord shall not be unreasonably modified or amended or enforced in a manner which will unreasonably interfere with the normal and customary conduct of Subtenant’s business and no Rule or Regulation shall unreasonably or materially interfere with Subtenant’s permitted use, (ii) Sublandlord shall provide Subtenant with reasonable advance notice of any modification or amendment of the Rules and Regulations, and (iii) in the event of a conflict between the Rules and Regulations and the provisions of this Sublease, the provisions of this Sublease will control. Without limitation on the foregoing, Subtenant acknowledges that CC&R’s may provide for some or all of the Project common areas to be transferred to a property owners’ association which will assume the obligation to cause to be operated and maintained some or all of the Project common areas (typically, through a property management/maintenance company retained by the property owners’ association in respect of such obligations); in such event, any costs incurred by Sublandlord to pay such property owners’ association fee will be included in Operating Costs. Sublandlord shall not be liable to Subtenant for or in connection with the failure of any other tenant of the Building or Project to comply with any rules and regulations applicable to such other occupant under its lease or sublease.
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5.4 Landlord’s Obligations. Subtenant agrees that Sublandlord shall not be required to perform any of the covenants, agreements and/or obligations of Landlord under the Master Lease and, insofar as any of the covenants, agreements and obligations of Sublandlord hereunder are required to be performed under the Master Lease by Landlord thereunder, Subtenant acknowledges and agrees that Sublandlord shall be entitled to look to Landlord for such performance. In addition, Sublandlord shall have no obligation to perform any repairs or any other obligation of Landlord under the Master Lease. Except as expressly set forth herein, Sublandlord shall not be responsible for any failure or interruption, for any reason whatsoever, of the services or facilities that may be appurtenant to or supplied at the Building or Project by Landlord, and no failure to furnish, or interruption of, any such services or facilities shall give rise to any (i) abatement, diminution or reduction of Subtenant’s obligations under this Sublease, or (ii) liability on the part of Sublandlord. Notwithstanding the foregoing, Sublandlord shall promptly take such action as may reasonably be indicated, under the circumstances, to secure such performance upon Subtenant’s request to Sublandlord to do so and shall thereafter use diligent efforts to secure timely completion of such performance by Landlord.
5.5 Maintenance.
(a) Sublandlord’s Maintenance. Sublandlord shall keep and maintain in good repair and working order and make repairs to and perform maintenance upon: (1) all structural elements and components of the Building (except to the extent that the responsibility for such work is Landlord’s pursuant to the Master Lease); (2) mechanical (including HVAC), electrical, plumbing and fire/life safety systems serving the Building in general; (3) the “Building Common Areas” (i.e., those areas within the Building devoted to corridors, elevator lobbies, vending areas and lobby areas (whether at ground level or otherwise), and other similar facilities provided for the common use or benefit of tenants generally and/or the public (excluding those areas within the Building used for elevator shafts, flues, vents, stacks, pipe shafts, risers and other vertical penetrations, mechanical rooms, elevator mechanical rooms, janitorial closets, electrical and telephone closets, mail rooms and similar areas in the Building not designated for the exclusive use of a particular tenant or for the common use of tenants in general); (4) exterior windows of the Building; (5) elevators serving the Building; and (6) Building standard lighting fixtures (i.e., lamp and ballasts) within the Subleased Premises. Sublandlord shall not be responsible for, and Subtenant shall reimburse Sublandlord within ten (10) business days after demand from Sublandlord, for the cost of any repairs, together with an administrative charge in an amount equal to 10% of the cost thereof, for damage caused by any negligent or intentional act or omission of Subtenant or any person claiming through or under Subtenant or any of Subtenant’s employees, contractors or agents or because of use of the Subleased Premises for other than normal and customary office operations. Sublandlord shall perform its obligations under this Section 5.5(a) within a reasonable time (considering the nature and urgency of the repair) after Sublandlord receives written notice of the need for such repairs or maintenance. Notwithstanding anything to the contrary contained in this Sublease, except as provided in Section 6.2 below or as otherwise expressly provided in this Sublease, Sublandlord shall not be liable for and there shall be no abatement of rent with respect to, any injury to or interference with Subtenant’s business arising from any performance or nonperformance of any
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repair, maintenance, alteration or improvement in and to any portion of the Project, Building or the Subleased Premises, no actual or constructive eviction of Subtenant shall result from such performance or nonperformance, Subtenant shall not have the right to terminate this Sublease, and Subtenant shall not be relieved from the performance of any covenant or agreement in this Sublease by reason thereof. Subtenant hereby waives and releases its right to make repairs at Sublandlord’s expense under Sections 1932(1), 1933(4), 1941 and 1942 of the California Civil Code or any similar or successor laws now or hereinafter in effect.
(b) Subtenant’s Maintenance. Subtenant shall, at its sole cost and expense, promptly perform all maintenance and repairs to the Subleased Premises that are not Sublandlord’s express responsibility under this Sublease, and shall keep the Subleased Premises in good condition and repair, reasonable wear and tear and repairs that are the express responsibility of Sublandlord under this Sublease excepted. Subtenant’s repair obligations include, without limitation, repairs to: (1) the interior side of demising walls; (2) doors; (3) floor coverings; (4) interior partitions, interior glass, interior window treatments, ceiling tiles, shelving, cabinets, millwork and other tenant improvements; (5) electronic, phone and data cabling and related switches and transmission lines (collectively, “Network Cabling”) that is installed by or for the exclusive benefit of Subtenant and located in the Subleased Premises or other portions of the Building or Project; (6) supplemental air conditioning units, private showers and kitchens, including hot water heaters, plumbing and similar facilities serving Subtenant exclusively (Subtenant will provide Sublandlord with written copies of all maintenance contracts for such work); and (7) alterations or Subtenant Alterations approved by Sublandlord (and, if required, Landlord) and performed by contractors retained by Subtenant, including related HVAC balancing. All work shall be performed in accordance with the rules and procedures described in this Sublease, the Master Lease, or as may otherwise be issued from time to time by Landlord or Sublandlord. If Subtenant fails to make any repairs to the Subleased Premises for more than fifteen (15) days after written notice from Sublandlord (although notice shall not be required if there is an emergency), Sublandlord may make the repairs, and Subtenant shall pay the reasonable cost of the repairs to Sublandlord within ten (10) business days after receipt of an invoice, together with an administrative charge in an amount equal to 10% of the cost of the repairs.
5.6 Compliance with Laws. Subtenant shall comply with all laws, including, without limitation, the Americans with Disabilities Act, regarding the operation of Subtenant’s business and the use, condition, configuration and occupancy of the Subleased Premises and any Subtenant Alterations in the Subleased Premises; provided, however, that Subtenant shall have no obligation to comply with laws requiring improvements to the common areas or the Building structure, except to the extent the same are necessitated by any Subtenant Improvements or Subtenant’s use of the Subleased Premises for other than general office purposes. Sublandlord shall comply with all laws relating to the common areas and the base Building (except to the extent that such compliance is the responsibility of Landlord under the Master Lease), provided that compliance with such laws is not necessitated by Subtenant Improvements or Subtenant’s use of the Subleased Premises for other than general office purposes and is not otherwise the responsibility of Subtenant as expressly provided in this Sublease, and provided further that Sublandlord’s failure to comply therewith would prohibit Subtenant from obtaining or maintaining a certificate of occupancy for the Subleased Premises, would unreasonably and materially affect the safety of Subtenant or Subtenant’s employees,
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would create a significant health hazard for Subtenant or Subtenant’s employees or would otherwise materially interfere with Subtenant or Subtenant’s employees’ use and enjoyment of the Subleased Premises. Sublandlord shall be permitted to include in Operating Costs any costs or expenses incurred by Sublandlord under this Section 5.6 to the extent allowed pursuant to the terms of, and amortized to the extent required by, the provisions of Section 3.2 above. Subtenant, within ten (10) days after receipt, shall provide Sublandlord with copies of any notices it receives regarding a violation or alleged violation of any laws. Subtenant shall comply with the rules and regulations of the Building and such other reasonable rules and regulations adopted by Sublandlord from time to time and with all recorded covenants, conditions and restrictions now or hereafter affecting the Building or the Project (collectively, “CC&Rs”) that do not prohibit Subtenant’s use of the Subleased Premises for general office use and to the extent the same do not materially adversely increase Subtenant’s obligations or materially adversely decrease Subtenant’s rights under this Sublease.
6. Services.
6.1 Generally. Sublandlord agrees to furnish Subtenant with the following services on all days, 24-hours per day (except as otherwise stated), all of which shall be included in Operating Costs except as otherwise provided in this Sublease with respect to excess usage:
(a) Water. Running City water from the regular Building outlets for drinking, lavatory and toilet purposes in the Building Common Areas on each floor on which the Subleased Premises are located. If Subtenant desires water in the Subleased Premises for any approved reason, including for kitchen areas in the Subleased Premises, running City water shall be supplied, at Subtenant’s sole cost and expense, from the Building water main through a line and fixtures installed at Subtenant’s sole cost and expense with the prior reasonable consent of Sublandlord. If Subtenant desires hot water in the Subleased Premises, Subtenant, at its sole cost and expense and subject to the prior reasonable consent of Sublandlord, may install a hot water heater in the Subleased Premises;
(b) HVAC.
(1) Generally. Except for the Server Room (defined below), heating, ventilation and air conditioning (“HVAC”) in season during Building Hours (i.e., 8:00 a.m. to 6:00 p.m., Monday through Friday, holidays excepted), at such temperatures and in such amounts as required by governmental authority. Subtenant shall have the right to receive HVAC service during hours other than Building Hours using Sublandlord’s “after-hours” access card system. Subtenant shall pay Sublandlord the standard charge established from time to time by Sublandlord for the additional service, which charge Subtenant acknowledges for after-hours HVAC service is currently $89.60 per floor (or partial floor) per hour as of the date of this Sublease, and which cost may be increased to the extent that Sublandlord’s actual cost (hereinafter defined) of providing such “after hours” HVAC increases from time to time. The minimum time period for after hours HVAC usage shall be one (1) hour. For purpose of this Section 6.1(b), “actual cost” shall mean the actual cost incurred by Sublandlord, as reasonably determined by Sublandlord, inclusive of a reasonable allocation for wear and tear, depreciation, provided that, notwithstanding the foregoing, any amount actually charged by any unrelated third
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party to Sublandlord for the supply of HVAC shall be deemed Sublandlord’s “actual cost”. When determining the actual cost of Subtenant’s utility usage pursuant to the terms of this Section 6.1(b), Sublandlord agrees that it shall use the monthly average rate paid by Sublandlord for a particular utility;
(2) Rooftop Chiller. Sublandlord shall provide Subtenant access to, and the right to the use of, the Building’s rooftop supplemental chiller and associated systems, which will be maintained by Sublandlord. Subtenant will pay to Sublandlord as additional Rent hereunder, Sublandlord’s estimate of Subtenant’s proportionate share (i.e., Subtenant’s consumption of chiller services as it relates to the aggregate consumption of such services by all subtenants in the Building) of the aggregate cost of operating such chiller, which aggregate cost Sublandlord initially estimates to be the sum of $72.00 per day; Sublandlord may revise such charges from time to time. Such charge will be payable by Subtenant on a monthly basis as and when Base Rent is payable hereunder. Subtenant shall have the right to audit the costs associated with rooftop chiller services pursuant to Section 3.2(c)(2)(C) above.
(3) Chilled Water Riser. The rooftop chiller has an aggregate capacity of 100 tons at 200 gallons per minute (GPM). As of the date of this Sublease, the portion of the Subleased Premises located on the second (2nd) floor of the Building contains the following supplemental HVAC units (the “Existing Supplemental Units”): one (1) 7.5 ton floor-mounted Liebert unit; one (1) 15 ton floor-mounted Data-Aire unit; two (2) 10 ton floor-mounted Liebert units; six (6) ton ceiling mounted units; and one (1) 7.5 ton ceiling mounted unit.
Upon the mutual execution and delivery of this Sublease, the Existing Supplemental Units shall become the property of Subtenant (Sublandlord will, at Subtenant’s request, provide Subtenant with a xxxx of sale transferring ownership of the Existing Supplemental Units to Subtenant on an “as-is” basis free of third-party liens or claims). Sublandlord makes no representation or warranty to Subtenant regarding the condition or operability of any Existing Supplemental Units. Subtenant will have the right to use the Existing Supplemental Units or such other supplemental HVAC units as Subtenant elects to install within the Subleased Premises (together with the Existing Supplemental Units, “Supplemental Units”). Subtenant may connect (or leave connected, as the case may be) Supplemental Units to the Building’s chilled water riser; provided, that in no event will Subtenant’s aggregate usage of chilled water in the Subleased Premises exceed fifty (50) tons (assuming a maximum of two (2) GPM per ton). Subtenant will bear all necessary costs of any additional piping or other infrastructure necessary to provide chilled water to the Supplemental Units. Prior to Subtenant’s occupancy or the commencement of any work within the Subleased Premises, Subtenant will submit to Sublandlord a schedule of all Supplemental Units to be operated within the Subleased Premises. In connection with the foregoing, Subtenant will disconnect, cap-off and, if required by Sublandlord, remove (collectively, “Decommission”) all Existing Supplemental Units which Subtenant will not use; Sublandlord will bear the reasonable cost of such Decommissioning work. Prior to commencing any Decommissioning work, Subtenant will deliver to Sublandlord a schedule of the Existing Supplemental Units which are scheduled for Decommissioning, together with a bid or quotation for the cost of such Decommissioning work. At Sublandlord’s election, Sublandlord may require that the Decommissioning work be performed by Sublandlord’s contractor in order to reduce the costs of such work. Sublandlord will have the right to inspect
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all Decommissioned Existing Supplemental Units at any time in order to assure that said units are not connected to the chilled water riser (Subtenant acknowledges that connecting Decommissioned Existing Supplemental Units to the chilled water riser could materially and detrimentally affect the ability of Building occupants to be served by the rooftop chiller with adequate capacity and agrees that re-connecting an Existing Supplemental Unit which was previously Decommissioned, or fails to Decommission an Existing Supplemental Unit which was scheduled for Decommissioning, would constitute a material breach hereunder).
(4) Blitz Room. The parties acknowledge that the Subleased Premises contains a room, designated as the “Blitz Room” and identified as such on the attached Exhibit A-4 which is currently served by Existing Supplemental Units. If Subtenant elects to Decommission some or all of the Supplemental Units serving the Blitz Room and as a consequence the Blitz Room does not have sufficient HVAC service from the Building’s HVAC system to support normal office occupancy of the Blitz Room, Sublandlord will, at Sublandlord’s sole cost, arrange for the Blitz Room to be served by sufficient HVAC service to support normal office occupancy per current (as of the date of this Sublease) ASHRAE Standards, the ongoing cost of such HVAC service will be included in Sublandlord Operating Costs.
Subtenant shall be responsible, at its cost, for the cost of purchasing and installing a E-mon D-mon submeter, or another method mutually agreed upon by the parties for each of the Supplemental Unit(s) to measure electricity consumption in connection with Supplemental Units, as well as the cost of all such electricity that is consumed. Upon the expiration or earlier termination of this Sublease, Subtenant shall remove the Supplemental Units and all associated pipes and infrastructure from the Building to the extent such removal is required by Landlord.
(c) Janitorial. Janitor service five (5) days per week (except on dates of the observation of holidays); provided that if Subtenant’s use, floor covering or other improvements require special services in excess of the standard services for the Building, Subtenant shall pay the additional cost attributable to the special services;
(d) Elevators and Access. Nonexclusive, non-attended automatic passenger elevator service during Building Hours, and at least one elevator available at all other times to provide service to the Subleased Premises. Freight elevator access is available, but the vestibules for the freight elevator on each floor will require card key access. Subtenant shall have access to the Subleased Premises 24-hours per day, 7 days a week, subject to temporary closures due to emergency, casualty, Sublandlord’s security requirements and maintenance, repair or changes to the Building or Project;
(e) Electricity. Electricity to the Subleased Premises for general office use, in accordance with and subject to the terms and conditions of Section 7 below;
(f) Security. On-site Project (as opposed to Building) security equipment, personnel and procedures, if any, as Sublandlord may elect in its sole discretion to establish from time to time; and
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(g) Other. Such other services as Sublandlord reasonably determines are necessary or appropriate for the Building or Project.
6.2 Interruption of Service. Sublandlord’s failure to furnish, or any interruption or termination of, services due to the application of laws, the failure of any equipment, the performance of repairs, improvements or alterations, or the occurrence of any event or cause beyond the reasonable control of Sublandlord (a “Service Failure”), shall not render Sublandlord liable to Subtenant, constitute a constructive eviction of Subtenant, give rise to an abatement of rent (except as expressly set forth herein), nor relieve Subtenant from the obligation to fulfill any covenant or agreement, provided that if any interruption in services to the Subleased Premises (i) continues for five (5) consecutive business days or more, (ii) is due to the act or omission of Sublandlord or Sublandlord’s employees or agents, (iii) is not attributable to the acts or omissions of Subtenant or Subtenant’s employees, invitees or agents and (iv) prevents Subtenant from occupying any material portion of the Subleased Premises, Base Rent shall xxxxx from and after the fifth (5th) consecutive business day of the interruption to the extent the Subleased Premises are rendered unusable and are actually not used by Subtenant as a result thereof. In no event, however, shall Sublandlord be liable to Subtenant for any loss or damage, direct or indirect, special or consequential, including loss of business or theft of Subtenant’s property, arising out of or in connection with the failure of any security services, personnel or equipment.
7. Use of Electrical Services by Subtenant.
7.1 Normal Electrical Usage. Except for the Server Room, which capacity as of the date of execution of this Sublease shall remain for Subtenant’s use and which is described in Section 7.3 below, the Building has been designed to accommodate electrical receptacle (120/208v) loads of three and one half (3.5) xxxxx per usable square foot and an average lighting load of two (2) xxxxx per usable square foot during Building Hours, with such average determined on a monthly basis (the “Standard Electrical Usage”), which electrical usage shall be subject to applicable laws, including Title 24. Subtenant will design Subtenant’s electrical system serving any equipment producing nonlinear electrical loads to accommodate such nonlinear electrical loads, including, but not limited to, oversizing neutral conductors, derating transformers and/or providing power-line filters. Engineering plans shall include a calculation of Subtenant’s fully connected electrical design load with and without demand factors and shall indicate the number of xxxxx of unmetered and submetered loads. Electrical service to the Subleased Premises may be furnished by one or more companies providing electrical generation, transmission and distribution services, and the cost of electricity may consist of several different components or separate charges for such services, such as generation, distribution and stranded cost charges. Sublandlord shall have the exclusive right to select any company providing electrical service to the Subleased Premises, to aggregate the electrical service for the Project, Building or Subleased Premises with other buildings, to purchase electricity through a broker and/or buyers group and to change the providers and manner of purchasing electricity. Subtenant shall bear the cost of replacement of lamps, starters and ballasts for non-Building standard lighting fixtures within the Subleased Premises. Sublandlord, as part of Operating Costs, shall bear the cost of lamps, starters and ballasts for Building standard lighting fixtures within the Subleased Premises.
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7.2 Excess Usage. Subtenant’s use of electrical service shall not exceed, either in voltage, rated capacity or overall load, the Standard Electrical Usage. If Subtenant requests permission to consume excess electrical service, Sublandlord may refuse to consent or may condition consent upon conditions that Sublandlord reasonably elects (including, without limitation, the installation of utility service upgrades, meters, submeters, air handlers or cooling units), and the additional usage (to the extent permitted by law), installation and maintenance costs shall be paid by Subtenant. Sublandlord shall have the right to separately meter or submeter electrical usage for the Subleased Premises and to measure electrical usage by survey or other commonly accepted methods; if Subtenant is consuming in excess of Standard Electrical Usage, such meter or submeter will be installed at Subtenant’s cost.
7.3 Server Room. As part of the Initial Subtenant Alterations, Subtenant will install an electrical meter in the Server Room for the purpose of measuring the electricity consumed in the Server Room. Subtenant will pay to Sublandlord directly the cost of electricity consumed in the Server Room as shown by such meter, on a monthly basis as Additional Rent hereunder within thirty (30) days following delivery of an invoice by Sublandlord.
8. Master Lease and Sublease Terms.
8.1 Subject to Master Lease. This Sublease is and shall be at all times subject and subordinate to the Master Lease. Subtenant acknowledges that Subtenant has reviewed and is familiar with all of the terms, agreements, covenants and conditions of the Master Lease. Additionally, Subtenant’s rights under this Sublease shall be subject to the terms of the Consent. During the Term and for all periods subsequent thereto with respect to obligations which have arisen prior to the termination of this Sublease, Subtenant agrees to perform and comply with, for the benefit of Sublandlord and Landlord, the obligations of Sublandlord under the Master Lease which pertain to the Subleased Premises and/or this Sublease, except for those provisions of the Master Lease which are directly contradicted by this Sublease, in which event the terms of this Sublease document shall control over the Master Lease. Sublandlord agrees that during the Term, Sublandlord will not amend, modify or voluntarily terminate the Master Lease in a manner which increases Subtenant’s obligations hereunder as materially adversely affects Subtenant’s rights hereunder. The foregoing will not preclude Sublandlord from terminating the Master Lease in the event of casualty or condemnation.
8.2 Incorporation of Terms of Master Lease. The terms, conditions and respective obligations of Sublandlord and Subtenant to each other under this Sublease shall be the terms and conditions of the Master Lease, except for those provisions of the Master Lease which are directly contradicted by this Sublease, in which event the terms of this Sublease shall control over the Master Lease. Therefore, for the purposes of this Sublease, wherever in the Master Lease the word “Landlord” is used it shall be deemed to mean Sublandlord and wherever in the Master Lease the word “Tenant” is used it shall be deemed to mean Subtenant and wherever in the Master Lease the word “Premises” is used it shall be deemed to mean Subleased Premises. Any non-liability, release, indemnity or hold harmless provision in the Master Lease for the benefit of Landlord that is incorporated herein by reference, shall be deemed to inure to the benefit of Sublandlord, Landlord, and any other person intended to be benefited by said
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provision, for the purpose of incorporation by reference in this Sublease. Any right of Landlord under the Master Lease (a) of access or inspection, (b) to do work in the Master Lease Premises or in the Building, or (c) in respect of rules and regulations, which is incorporated herein by reference, shall be deemed to inure to the benefit of Sublandlord, Landlord, and any other person intended to be benefited by said provision, for the purpose of incorporation by reference in this Sublease.
8.3 Clarifications. For the purposes of incorporation herein, the terms of the Master Lease are subject to the following additional modifications:
(a) Approvals. In all provisions of the Master Lease (under the terms thereof and without regard to modifications thereof for purposes of incorporation into this Sublease) requiring the approval or consent of Landlord, Subtenant shall be required to obtain the approval or consent of both Sublandlord and Landlord. Except as otherwise provided herein, Sublandlord shall not unreasonably withhold, or delay its consent to or approval of a matter if such consent or approval is required under the provisions of the Master Lease and Landlord has consented to or approved of such matter.
(b) Deliveries. In all provisions of the Master Lease requiring Tenant to submit, exhibit to, supply or provide Landlord with evidence, certificates, or any other matter or thing, Subtenant shall be required to submit, exhibit to, supply or provide, as the case may be, the same to both Landlord and Sublandlord.
(c) Damage; Condemnation. Sublandlord shall have no obligation to restore or rebuild any portion of the Subleased Premises after any destruction or taking by eminent domain; provided that if and to the extent the Subleased Premises contain improvements which constitute “Alterations” or “Tenant Improvements”, as said terms are described in the Master Lease, and Sublandlord, as the Tenant under the Master Lease, is required to restore such Tenant Improvements or Alterations, Sublandlord will perform such work in accordance with the terms of the Master Lease. Sublandlord will not, however, have any obligation to repair or service any Subtenant Alterations.
(d) Insurance. In all provisions of the Master Lease requiring Tenant to designate Landlord as an additional or named insured on its insurance policy, Subtenant shall be required to so designate Landlord and Sublandlord on its insurance policy.
8.4 Exclusions. Notwithstanding the terms of Section 8.2 above, Subtenant shall have no rights nor obligations under the following parts, Sections and Exhibits of the Master Lease:
(a) Original Master Lease: Article 1, Section 2.A.iv (second paragraph), Section 0.X.xx. Section 2.C, Section 3.A (first, third, fourth and fifth sentences only), Section 3.C, Sections 4.A, 4.B. and 4.D, Article 5, Sections 6.A, 6.B (clauses vii, and viii and final sentence only), Sections 6.C, 7.A (the reference to “Landlord” in the seventh sentence will be deemed a reference to Landlord only, not Sublandlord), 8.A (the reference to “Landlord” in this Section will be deemed a reference to Landlord only, not Sublandlord), 8.B, 8.C, 8.D, 8.E, 8.G, 9.B, Article 11, Sections 14.B (final sentence only), 17.B (clause (ii) and references to “Monthly Amortized Costs” only), Article 18, Article 19, Article 20, Sections 21.C, 21.M, 21.T, 21.W.
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(b) First Amendment: All.
(c) Second Amendment: All.
(d) Third Amendment: All
8.5 Modifications. Notwithstanding the terms of Section 8.2 above, the following provisions of the Master Lease are modified as described below for the purpose of their incorporation into this Sublease:
(a) With respect to Article 15 of the Original Master Lease, if Landlord elects to terminate the Master Lease pursuant to Section 15.B of the Original Master Lease or if Sublandlord elects to terminate the Master Lease pursuant to Section 15.C of the Original Master Lease, Sublandlord will promptly notify Subtenant and this Sublease will terminate concurrently with the termination of the Master Lease. If neither Landlord nor Sublandlord elects to terminate the Master Lease, Sublandlord will nonetheless provide Subtenant with a copy of Landlord’s notice of the time necessary to complete repairs as provided in Section 15.C of the Original Master Lease, as well as an estimate of the additional time necessary for Sublandlord to complete any repairs required of Sublandlord pursuant to the provisions of Article 15 of the Original Master Lease, and (x) Subtenant will have the same right to terminate the Sublease as Sublandlord has to terminate the Master Lease as described in the second (2nd) and fourth (4th) sentences of Section 15.C of the Original Master Lease as incorporated herein; provided that for such purposes references in the second (2nd) and fourth (4th) sentences of Section 15.C to “Landlord” or Landlord’s” will be deemed to be references to “Sublandlord” or “Sublandlord’s” and “Landlord” or “Landlord’s”.
(b) With respect to Section 17.A of the Original Master Lease, the second (2nd) clause (i) is modified to provide that Sublandlord may terminate this Sublease with respect to an assignment of this Sublease or a proposed sub-sublease of any portion of the Subleased Premises for substantially the remainder of the Term (but in the case of a proposed sub-sublease of a portion of the Subleased Premises, such termination will only be with respect to the portion of the Subleased Premises which Subtenant proposes to sub-sublease, and effective as of the date of such termination, the Base Rent payable hereunder, as well as Subtenant’s Building Percentage Share and Subtenant’s Project Percentage Share, will be adjusted to reflect the reduction in the size of the Subleased Premises).
(c) With respect to Section 17.E of the Original Master Lease, in clauses (ii) and (iii), in each case the phrase “has a net worth at the time of and thereafter sufficient to enable it to meet its obligations under this Lease” is deleted and restated, for the purposes of incorporation herein, as follows: “has a net worth which, in Sublandlord’s reasonable determination, is equal to or in excess of the net worth of Subtenant as of the date immediately preceding the proposed assignment and is sufficient to enable it to meet its obligations under this Lease.”
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(d) Except as set forth in Section 8.5(b) above, references in the following provisions of the Master Lease to “Landlord” shall mean “Landlord”; Articles 15 and 16.
(e) With respect to Section 21(g) of the Original Master Lease, Sublandlord will be permitted to enter the Subleased Premises in order to perform any maintenance and repair tasks applicable to the Subleased Premises or the Building or to facilitate the construction of improvements within the Building (for example, access may be necessary in order to install connections between rooftop facilities and the premises of Building occupants on lower floors who are served by such facilities) which work will not require Subtenant’s prior consent, to access the Telecom Riser Room and Mechanical Room and other similar facilities located on the floor(s) on which the Subleased Premises are located; Sublandlord agrees to use reasonable efforts to minimize disturbance to Subtenant’s business operations in the Subleased Premises as a result of any such entry and to provide reasonable (i.e., at least twenty-four (24) hours) advance notice (which may be telephonic) to Subtenant of any such entry, except in the case of emergency.
9. Assignment and Subletting.
9.1 Generally. Subtenant shall not assign this Sublease or further sublet all or any part of the Subleased Premises except subject to and in compliance with all of the terms and conditions of Article 17 of the Original Master Lease, and Sublandlord (in addition to Landlord) shall have the same rights with respect to assignment and subleasing as Landlord has under such Article 17; provided, however, that:
(a) fifty percent (50%) of all excess rent (calculated as provided in Section 17.B of the Original Master Lease) in connection with any such assignment or sublease shall be payable to Sublandlord as and when received by Subtenant;
(b) in connection with any proposed assignment or subletting by Subtenant, Sublandlord will have the right, to be exercised by written notice delivered within twenty (20) days after Subtenant’s submission of all necessary materials requesting Sublandlord’s consent to such assignment or sublease, to terminate this Sublease with respect to the space that is the subject of such proposed assignment or sublease, effective as of the proposed effective date of such proposed assignment or sublease; and
(c) in no event will any sublease by Subtenant subdivide a floor of the Building into a multi-occupant floor.
9.2 Fees and Costs. Subtenant shall pay all fees and costs payable to Master Landlord pursuant to the Master Lease in connection with any proposed assignment, sublease or transfer of the Subleased Premises, together with all of Sublandlord’s reasonable out-of-pocket costs relating to Subtenant’s request for such consent, regardless of whether such consent is granted, and the effectiveness of any such consent shall be conditioned upon Master Landlord’s and Sublandlord’s receipt of all such fees and costs. The sale of shares of Subtenant’s stock on a nationally recognized securities exchange in the normal course of trading (as opposed to the transfer of shares in connection with a merger or acquisition) will not constitute an assignment of Subtenant’s interest in this Sublease.
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10. Default. Except as expressly set forth herein, Subtenant shall perform all obligations in respect of the Subleased Premises that Sublandlord would be required to perform pursuant to the Master Lease, to the extent incorporated herein. It shall constitute an event of default hereunder if Subtenant fails to perform any obligation hereunder (including, without limitation, the obligation to pay Rent), or any obligation under the Master Lease which has been incorporated herein by reference, and, in each instance, Subtenant has not remedied such failure after delivery of any written notice required under this Sublease and passage of the cure periods prescribed in Article 13 of the Original Master Lease as incorporated herein, provided that with respect to non-monetary defaults, Subtenant’s cure period shall be longer of (A) one-half of, or (B) five (5) calendar days less than, the actual cure period provided for such non-monetary default under the Master Lease.
11. Remedies. In the event of any default hereunder by Subtenant, Sublandlord shall have all remedies provided to the “Landlord” in the Master Lease as if an event of default had occurred thereunder and all other rights and remedies otherwise available at law and in equity. Without limiting the generality of the foregoing, Sublandlord may continue this Sublease in effect after Subtenant’s breach and abandonment and recover Rent as it becomes due. Sublandlord may resort to its remedies cumulatively or in the alternative.
12. Right to Cure Defaults. If Subtenant fails to perform any of its obligations under this Sublease after expiration of applicable grace or cure periods, then Sublandlord may, but shall not be obligated to, perform any such obligations for Subtenant’s account. All costs and expenses incurred by Sublandlord in performing any such act for the account of Subtenant shall be deemed Rent payable by Subtenant to Sublandlord upon demand, together with interest thereon at the lesser of (i) fifteen percent (15%) per annum or (ii) the maximum rate allowable under law (the “Interest Rate”) from the date of the expenditure until repaid. If Sublandlord undertakes to perform any of Subtenant’s obligations for the account of Subtenant pursuant hereto, the taking of such action shall not constitute a waiver of any of Sublandlord’s remedies. Subtenant hereby expressly waives its rights under any statute to make repairs at the expense of Sublandlord.
13. Sublandlord’s Liability. Notwithstanding any other term or provision of this Sublease, the liability of Sublandlord to Subtenant for any default in Sublandlord’s obligations under this Sublease shall be limited to actual, direct damages, and under no circumstances shall Subtenant, its partners, members, shareholders, directors, agents, officers, employees, contractors, sublessees, successors and/or assigns be entitled to recover from Sublandlord (or otherwise be indemnified by Sublandlord) for (a) any losses, costs, claims, causes of action, damages or other liability incurred in connection with a failure of Landlord, its partners, members, shareholders, directors, agents, officers, employees, contractors, successors and /or assigns to perform or cause to be performed Landlord’s obligations under the Master Lease, (b) lost revenues, lost profit or other consequential, special or punitive damages arising in connection with this Sublease for any reason, or (c) any damages or other liability arising from or incurred in connection with the condition of the Subleased Premises or suitability of the Subleased Premises for Subtenant’s intended uses. Subtenant shall, however, have the right to
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seek any injunctive or other equitable remedies as may be available to Subtenant under applicable law. Notwithstanding any other term or provision of this Sublease, no personal liability shall at any time be asserted or enforceable against Sublandlord’s stockholders, directors, officers, or partners on account of any of Sublandlord’s obligations or actions under this Sublease. As used in this Sublease, the term “Sublandlord” means the holder of the tenant’s interest under the Master Lease and the holder of Sublandlord’s interest under this Sublease. In the event of any assignment or transfer of the Sublandlord’s interest under this Sublease, which assignment or transfer may occur at any time during the Term in Sublandlord’s sole discretion, Sublandlord shall be and hereby is entirely relieved of all covenants and obligations of Sublandlord hereunder accruing subsequent to the date of the transfer and it shall be deemed and construed, without further agreement between the parties hereto, that any transferee has assumed and shall carry out all covenants and obligations thereafter to be performed by Sublandlord hereunder. Sublandlord may transfer and deliver any then existing Security Deposit to the transferee of Sublandlord’s interest under this Sublease, and thereupon Sublandlord shall be discharged from any further liability with respect thereto.
14. Attorneys’ Fees. If Sublandlord or Subtenant brings an action to enforce the terms hereof or to declare rights hereunder, the prevailing party who recovers substantially all of the damages, equitable relief or other remedy sought in any such action on trial and appeal shall be entitled to receive from the other party its costs associated therewith, including, without limitation, reasonable attorneys’ fees and costs from the other party.
15. Delivery of Possession.
15.1 Generally. Sublandlord shall deliver, and Subtenant shall accept, possession of the Subleased Premises in their “AS IS” condition as the Subleased Premises exists on the date of such delivery. Sublandlord shall have no obligation to furnish, render or supply any work, labor, services, materials, furniture other than the Furniture, defined below, fixtures, equipment, decorations or other items to make the Subleased Premises ready or suitable for Subtenant’s occupancy. In connection therewith, the parties acknowledge that there is an existing server room located within Second Floor Space (the “Server Room”) which will be delivered by Sublandlord in its “as is” condition, including any existing equipment and racks currently located therein. Subtenant expressly acknowledges that Sublandlord has made no representation or warranty as to the suitability or fitness of any equipment located in the Server Room, and, while any such equipment may be used by Subtenant at Subtenant’s option, all such equipment is accepted by Subtenant in its current “as is” condition. Further, the parties acknowledge that an existing generator providing back-up power for the Building’s life safety systems also supplies back-up power to some, but not all, of the electrical outlets in the Server Room (the primary purpose of such back-up generator being to support the life safety systems of the Building); Sublandlord will continue to maintain and operate such back-up generator, but does not represent or warrant to Subtenant that such back-up generator will timely provide backup power to the Server Room, or, if such power is provided, that such power will be provided in a quantity or quality necessary to maintain Subtenant’s equipment located therein operational. In making and executing this Sublease, Subtenant has relied solely on such investigations, examinations and inspections as Subtenant has chosen to make or has made and has not relied on any representation or warranty concerning the Subleased Premises or the Building, except as expressly set forth in this Sublease. Subtenant acknowledges that Sublandlord has afforded
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Subtenant the opportunity for full and complete investigations, examinations and inspections of the Subleased Premises and the Building Common Areas. Subtenant acknowledges that it is not authorized to make or perform any alterations or improvements in or to the Subleased Premises except as permitted by the provisions of this Sublease and the Master Lease and that upon termination of this Sublease, Subtenant shall deliver the Subleased Premises to Sublandlord in the same condition as the Subleased Premises were at the commencement of the Term, reasonable wear and tear and those Subtenant Alterations the removal of which is not required by the terms hereof excepted; in any event, at Subtenant’s cost, Subtenant will remove all telecommunications and data cabling (including Network Cabling) installed by or for the benefit of Subtenant.
15.2 Subtenant’s Alterations.
(a) Generally. The parties acknowledge that Subtenant intends to construct improvements within the Subleased Premises; said improvements which are initially constructed in anticipation of Subtenant’s occupancy of the Subleased Premises (the “Initial Subtenant Alterations”) or are constructed by or on behalf of Subtenant following Subtenant’s occupancy of the Subleased Premises being referred to as “Subtenant Alterations”. All Subtenant Alterations shall be carried out in accordance with, and will be deemed “alterations” for the purpose of the Master Lease and will be subject to Landlord’s prior written approval to the extent required under the Master Lease. Sublandlord will have the right to approve the plans and specifications for any proposed Subtenant Alterations, as well as any contractors whom Subtenant proposes to retain to perform such work (provided that Sublandlord may designate the contractors who will perform work on the Building’s electrical, HVAC or life-safety systems). Sublandlord’s consent shall not be unreasonably withheld with respect to proposed Subtenant Alterations that (a) comply with all applicable laws; (b) are compatible with the Building, its architecture and its mechanical, electrical, HVAC and life safety systems; (c) do not interfere with the use and occupancy of any other portion of the Building by any other occupant or their invitees; (d) do not affect the structural portions of the Building; (e) do not and shall not, whether alone or taken together with other improvements, require the construction of any other improvements or alterations within the Building; (f) do not reduce the value of the Subleased Premises or increase the cost to Sublandlord of reletting the Premises; and (g) do not affect the exterior appearance of the Building. Additionally, Sublandlord may require that Subtenant incorporate “Project-Standard” materials with respect to (i) ceiling tile, (ii) lighting, (iii) doors, frames and hardware and (iv) other similar finish components. In determining whether to consent to proposed Subtenant Alterations, Sublandlord shall have the right to review and approve plans and specifications for proposed Subtenant Alterations, construction means and methods, the identity of any contractor or subcontractor to be employed on the work for Subtenant Alterations, and the time for performance of such work. In connection with any proposed Subtenant Alterations, Subtenant will be solely responsible for providing any security required by Landlord pursuant to Section 7.A of the Original Master Lease. Additionally, if Sublandlord in good faith determines that Sublandlord proposes to construct Subtenant Alterations which would be materially more expensive to remove than the typical office improvements located in the Building, Sublandlord, in Sublandlord’s discretion, may require as a condition to granting its consent to such proposed Subtenant Alterations that Subtenant increase the Security Deposit by an amount reasonably determined by Sublandlord to be sufficient to secure the performance of Subtenant’s obligation to restore or remove such Subtenant
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Alterations at the expiration or sooner termination of the Sublease (whether such restoration is required by Landlord or Sublandlord). Subtenant shall supply to Sublandlord any documents and information reasonably requested by Sublandlord in connection with any Subtenant Alterations. Sublandlord may hire outside consultants to review such documents and information and Subtenant shall reimburse Sublandlord for the cost thereof as well as Sublandlord’s internal costs. All Subtenant Alterations permitted hereunder shall be made and performed by Subtenant without cost or expense to Sublandlord, except with respect to Sublandlord’s funding of the Allowance, described below. Upon completion of any Subtenant Alterations, Subtenant shall provide Sublandlord, at Subtenant’s expense, with a complete set of “as built” plans on Mylar and specifications reflecting the actual conditions of the Subtenant Alterations as constructed in the Subleased Premises, together with a copy of such plans on diskette in AutoCAD format or such other format as may then be in common use for computer assisted design purposes; additionally, Subtenant will provide Sublandlord with the items required under clauses (i) through (iii) of Section 7.A of the Original Master Lease for delivery to Landlord. Sublandlord shall have the right to promulgate commercially reasonable rules and regulations regarding the performance of Subtenant Alterations; Subtenant’s initial guidelines for construction are attached hereto as Exhibit F. Sublandlord will not charge any construction management fee with respect to the performance of the Initial Subtenant Alterations (as opposed to any subsequent Subtenant Alterations) carried out prior to Subtenant’s initial occupancy of the Subleased Premises; however, if and to the extent that Landlord imposes a construction management fee with respect to any Subtenant Alterations, or otherwise passes through review fees and costs, Subtenant will be responsible for paying such sums.
(b) Code-Required Work. If the performance of any Subtenant Alterations or other work by Subtenant within the Subleased Premises “triggers” a requirement for code-related upgrades to or improvements of any portion of the Building or Project, Subtenant shall be responsible for the cost of such code-required upgrade or improvements.
(c) Allowance. Sublandlord hereby grants to Subtenant an allowance of Three and No/100 Dollars ($3.00) per rentable square foot of the Subleased Premises (which, based upon 88,152 rentable square feet, equates to $264,456.00 (the “Allowance”).
(1) The Allowance is to be used for:
(A) Payment of the cost of preparing space plans and construction drawings, including mechanical, electrical, plumbing and structural drawings.
(B) The payment of plan check, permit and license fees relating to construction of the Initial Subtenant Alterations.
(C) Construction of the Initial Subtenant Alterations, which must include a reception/conference area for the Subleased Premises.
(D) Costs associated with reconfiguring existing furniture.
(E) General moving costs.
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(F) Costs associated with the installation of any phone systems or wiring.
(2) Disbursement. The Allowance shall be paid to Subtenant in its entirety, within thirty (30) days following request by Subtenant, which request must be accompanied by (i) evidence that the items described in Section 15.2(c)(1)(C) above have been completed and (ii) full and final waivers of lien from all contractors performing any portion of the Initial Subtenant Alterations.
(d) End of Term. Subtenant expressly acknowledges that Landlord or Sublandlord may require Subtenant to remove some or all Subtenant Alterations at the expiration or sooner termination of the Term; however, if Landlord requires the removal/restoration of Subtenant’s proposed reception/conference area, Sublandlord agrees to be responsible for the restoration of such components, but only if (x) such area is no larger than 1,000 usable square feet on a single floor designated by Subtenant and (y) in Sublandlord’s good faith determination, the cost of restoration of same would not materially exceed the cost of restoration of similar areas improved with “Project-standard” improvements. Subtenant will be responsible for the removal and/or restoration of any other Subtenant Alterations if required by Landlord or Sublandlord. Subtenant will also be responsible for the performance of the items of work required by clauses (i), (ii), (iii), (iv) and (v) (to the extent Tenant installs cabling that is in addition to the cabling that is already in place before Tenant takes possession of the Subleased Premises) of Section 6.B of the Original Master Lease, to the extent applicable to the Subleased Premises. Subtenant acknowledges that Landlord may notify Sublandlord following the scheduled expiration of this Sublease of Landlord’s determination that certain alterations performed by Subtenant must be removed. Sublandlord agrees to attempt to procure Landlord’s determination in this regard as soon as reasonably possible; however, the parties acknowledge that Subtenant’s obligation to remove any Subtenant Alterations which Landlord requires the removal of (and the removal of which is not the express responsibility of Sublandlord pursuant to this Section 15.2(c) will survive the expiration or sooner termination of this Sublease. Notwithstanding the above, Subtenant will not be required to remove the reception/conference area for the Subleased Premises. Sublandlord also, at no cost to Sublandlord, will cooperate with Subtenant in requesting from Landlord an agreement that any or all of the remaining Initial Subtenant Alterations do not need to be removed at the end of the Term; however, the procurement of such an agreement is not a condition precedent to Subtenant’s obligations hereunder and the failure to obtain such an agreement will not give rise to any claim or right on the part of Subtenant or any liability or obligation on the part of Sublandlord. Notwithstanding the foregoing, Subtenant in no event shall have the liability, or responsibility, for the removal or restoration of any alterations, improvements, or additions that are in the Subleased Premises as of the date of this Sublease.
16. Holding Over. If Subtenant holds over after the expiration or earlier termination of this Sublease with the express or implied consent of Sublandlord, such tenancy shall be from month-to-month only and shall not constitute a renewal hereof or an extension for any further term. Such month-to-month tenancy shall be subject to all the terms and provisions of this Sublease, except that Subtenant shall pay Base Rent and Additional Rent in an amount (on a per month basis without reduction for partial months during the holdover) equal to 150% of the sum of the Base Rent and Additional Rent due for the period immediately preceding the
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holdover. Nothing contained in this Section 16 shall be construed as consent by Sublandlord to any holding over by Subtenant, and Sublandlord expressly reserves the right to recover immediate possession of the Subleased Premises by summary proceedings or otherwise. In addition to the payment of the amounts provided above, if Sublandlord is unable to deliver possession of the Subleased Premises to a new subtenant or to Landlord, as the case may be, or to perform improvements for a new subtenant, as a result of Subtenant’s holdover, Subtenant shall be liable to Sublandlord for all damages, including, without limitation, consequential damages, that Sublandlord suffers from the holdover; Subtenant expressly acknowledges that such damages may include all of the holdover rent charged by Landlord under the Master Lease as a result of Subtenant’s holdover, which Master Lease holdover rent may apply to the entire Master Lease Premises. Notwithstanding any other term or provision of this Sublease, if the Term expires on the Expiration Date (as opposed to an early termination for any reason), Subtenant shall be entitled to hold over, without any payment of Base Rent and Additional Rent, solely for the purpose of performing any repair/restoration obligations of Subtenant under this Sublease, so long as (x) Subtenant’s work of repair/restoration does not interfere with Sublandlord’s restoration work, if any, which is concurrently being performed in the Building and (y) in no event will Subtenant have any right to remain in the Subleased Premises for any reason whatsoever following the date which precedes the date of expiration of the term of the Master Lease.
17. Parking. During the Term Subtenant shall be permitted to use three hundred thirty-three (333) (i.e., 3.78 spaces per 1,000 rentable square feet in the Subleased Premises) of the parking spaces allocated to Sublandlord in the Master Lease. One (1) reserved parking space located in the underground parking lot directly beneath the Subleased Premises for each full floor occupied by Subtenant shall be allocated to Subtenant from the amount described above. Sublandlord reserves the right in the future to designate additional reserved parking spaces at Sublandlord’s sole discretion.
18. Notices: Any notice by either party to the other required, permitted or provided for herein shall be valid only if in writing and shall be deemed to be duly given only if (a) delivered personally, or (b) sent by means of Federal Express, UPS Next Day Air or another reputable express mail delivery service guaranteeing next business day delivery, or (c) sent by United States certified or registered mail, return receipt requested, addressed: (i) if to Sublandlord, at the following addresses:
Oracle USA, Inc.
c/o Oracle Corporation
0000 Xxxxxx Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: Lease Administration
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with a copy to:
Oracle USA, Inc.
c/o Oracle Corporation
000 Xxxxxx Xxxxxxx
Xxx 0XX0
Xxxxxxx Xxxxxx, Xxxxxxxxxx 00000
Attn: Legal Department
and (ii) if to Subtenant, at the following address:
Prior to Commencement Date:
0000 Xxxxx Xx Xxxxxx Xxxx
Xxxxx Xxxxx
Xxx Xxxxx, XX 00000
Attn:
Following Commencement Date:
At the Subleased Premises
Attn:
or at such other address for either party as that party may designate by notice to the other. A notice shall be deemed given and effective, if delivered personally, upon hand delivery thereof (unless such delivery takes place after hours or on a holiday or weekend, in which event the notice shall be deemed given on the next succeeding business day), if sent via overnight courier, on the business day next succeeding delivery to the courier, and if mailed by United States certified or registered mail, three (3) business days following such mailing in accordance with this Section.
19. Furniture. During the Term, at no charge to Subtenant, Subtenant shall be permitted to use the existing modular and office furniture and cabling located in the Subleased Premises and described in more particular detail in Exhibit C attached hereto (the “Furniture”). Subtenant shall accept the Furniture in its current condition without any warranty of fitness from Sublandlord (Subtenant expressly acknowledges that no warranty is made by Sublandlord with respect to the condition of any cabling currently located in or serving the Subleased Premises); for purposes of documenting the current condition of the Furniture, Subtenant and Sublandlord shall, prior to the Commencement Date, conduct a joint walk-through of the Subleased Premises in order to inventory items of damage or disrepair in the Furniture. Subtenant shall use the Furniture only for the purposes for which such Furniture is intended and shall be responsible for the proper maintenance, care and repair of the Furniture, at Subtenant’s sole cost and expense; and, if an applicable warranty for a particular piece of furniture is in effect, Subtenant shall use maintenance contractors specified by Sublandlord for said item. No item of Furniture shall be removed from the Subleased Premises without Sublandlord’s prior written consent. On or about the date of expiration of the Term, the parties shall once again conduct a walk-through of the Subleased Premises to catalog any items of damage, disrepair, misuse or loss among the
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Furniture (reasonable wear and tear excepted), and Subtenant shall be responsible, at Subtenant’s sole cost and expense, for curing any such items (including, with respect to loss, replacing any lost item with a substantially similar new item reasonably acceptable to Sublandlord). Any work of modifying any Furniture (including, without limitation, changing the configuration of, “breaking down” or reassembly of cubicles or other modular furniture) shall be performed at Subtenant’s sole cost using Sublandlord’s specified vendors or an alternate vendor approved in writing by Sublandlord (such approval to be granted or withheld in Sublandlord’s reasonable and good faith discretion, based upon Sublandlord’s assessment of factors which include, without limitation, whether the performance by such vendor will void applicable warranties for such furniture and whether such vendor is sufficiently experienced in the design of such furniture). Notwithstanding the foregoing, Sublandlord will remove, at its own cost, any Furniture from the Subleased Premises requested by Subtenant prior to the Commencement Date or prior to a mutually agreed upon date, provided that Subtenant delivers to Sublandlord notice specifying the items to be removed at least ten (10) days prior to the Commencement Date or mutually agreed upon date. Following such removal, any such items so removed will no longer be deemed to be included with the definition of “Furniture” and, at Landlord’s option, the parties will jointly execute a revised Exhibit C reflecting the revised Furniture Inventory.
20. Access System. Subtenant acknowledges that Sublandlord currently has an access system monitoring access to the Project and the Building. Subtenant acknowledges that there are card readers installed throughout the Building and Project which are part of Sublandlord’s access system. Subtenant will not interfere with, adjust or damage any such card readers. To the fullest extent permitted under applicable law, Subtenant hereby acknowledges that, except for making the card key reader system available for Subtenant’s use and except for servicing and maintaining the system, Sublandlord shall not be responsible for providing access or security services to Subtenant, and that Subtenant shall be solely responsible for providing its own security service, if any. Sublandlord shall provide Subtenant with card keys (one (1) key for each workstation in the Subleased Premises) at no initial cost to Subtenant; Sublandlord may, however, charge Subtenant for lost or replacement card keys. In addition, if a separate card key is required, Sublandlord shall provide Subtenant with a reasonable number of card keys for access to the vestibules for the freight elevator.
21. Signage.
21.1 Monument Sign. Subject to the prior written consent of Landlord and the procurement of any approvals or permits required by City, Subtenant will be entitled to an equitable allocation of space on shared monument signage, if any, serving the Building (a “Monument Sign”) for the purpose of displaying Subtenant’s name (using Project-standard lettering) only. Subtenant acknowledges that no such Monument Sign exists as of the date of this Sublease nor does this Section 21 obligate Sublandlord to install any Monument Sign. Further, the location of Subtenant’s tradename on the Monument Sign shall be subject to availability at the time Subtenant elects to install same on any such monument and Sublandlord shall not be required to reserve any particular location or band on the Monument Sign for Subtenant’s use. Any signage of Subtenant installed on the Monument Sign is referred to herein as “Subtenant’s Monument Signage”. Any such signage will be installed at Subtenant’s sole cost and expense by contractors designated by Sublandlord. The graphics, materials, color, design, lettering, lighting, size, specifications, location and manner of affixing the Subtenant’s
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Monument Signage shall be subject to Sublandlord’s prior approval, which shall not be unreasonably withheld, and will be further subject to compliance with all laws, ordinances, restrictions of record and easements affecting same (collectively, “Sign Laws”). Sublandlord’s approval of Subtenant’s Monument Signage shall not constitute a representation by Sublandlord that Subtenant’s Monument Signage complies with any applicable Sign Laws. Any such signage will be removed by Subtenant at Subtenant’s expense at the earlier to occur of (a) the Expiration Date and (b) the date upon which the signage rights granted herein are terminated.
21.2 Additional Signage. In addition to the Monument Signage, Subtenant shall be entitled, at Subtenant’s cost, to install (a) Project-standard signage identifying Subtenant in the main lobby of the Building and (b) subject to the prior written approval of Sublandlord and Landlord with respect to graphics, materials, color, design, lettering, lighting, size, specifications, location and manner of installation and the procurement, at Subtenant’s sole cost and expense, of all required governmental approvals and permits therefor, a single exterior Building sign; provided that Subtenant will have the same removal/restoration obligations with respect to such signage as Subtenant has with respect to Subtenant’s Monument Signage.
21.3 Termination of Signage Rights. Subtenant’s rights to Subtenant’s Monument Signage shall expire and terminate upon the earlier to occur of (i) the termination of this Sublease or Subtenant’s right to possession of the Subleased Premises; (ii) the occurrence of a default by Subtenant hereunder (i.e., beyond the giving of any applicable notice and the passage of any applicable grace periods); (iii) the transfer by Subtenant of all or part of its interest in this Sublease or the Subleased Premises other than pursuant to an assignment meeting the requirements of Section 17.E of the Original Master Lease, as amended for the purpose of incorporation herein by Section 8(c) above. In addition, Subtenant’s rights with respect to Subtenant’s Monument Signage will terminate if Subtenant does not install Subtenant’s Monument Signage prior to the 1st anniversary of the later to occur of (a) the Commencement Date, and (b) the date Sublandlord first installs the Monument Sign and notifies Subtenant of its availability. Upon termination of such rights (and in any event upon termination of this Sublease), Subtenant shall, at Sublandlord’s option, either immediately remove Subtenant’s Monument Signage (if installed) and repair all damage caused thereby, at Subtenant’s sole cost and expense or to promptly deliver to Sublandlord the funds estimated by Sublandlord to equal the cost to Sublandlord of performing such removal or repair work. Subtenant’s obligations hereunder shall survive the termination of this Sublease.
21.4 Personal Rights. The rights granted pursuant to this Section 21 are personal to Guidewire Software, Inc., and may not be transferred or assigned to any other individual or entity (other than an assignee of Subtenant’s interest in this Sublease qualifying pursuant to the revisions of Section 17.E of the Original Master Lease, as amended for the purpose of incorporation herein by the provisions of Section 8.5(c) above).
22. Telecom Riser Rooms. Each floor of the Building has a separate room (each, a “Telecom Riser Room”) which was used by the prior occupant of the Building to connect with the main telecommunications distribution frame (“MDF”) serving the Building and the Project; the Telecom Riser Rooms serve as the central point of distribution for telecommunications fiber for all floors in the Building. As of the date of this Sublease, the Telecom Riser Rooms serving the Subleased Premises shall remain locked unless otherwise
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determined by Sublandlord, but considered common space accessible to Sublandlord and, upon prior coordination of such access with, and subject to supervision by, Sublandlord or the property manager for the Project, other Building occupants (including Subtenant). Other Building occupants who wish to use the telecom riser fiber in the Building may require access to all other Telecom Riser Rooms (including Telecom Riser rooms on floors below the floors on which their separate subleased premises are located) through which their fiber passes. Subtenant may elect to use the Telecom Riser Rooms serving the Subleased Premises for connecting to the MDF, however, Subtenant may not interfere with any pre-existing Building fiber installed in or connected to any Telecom Riser Room nor may Subtenant prevent Sublandlord (or any other Building occupants) from accessing the Telecom Riser Rooms serving the Subleased Premises; however, Subtenant will have the right to supervise the performance of any other occupants’ work in the Telecom Riser Rooms on the floor(s) where the Subleased Premises are located (and, similarly, if Subtenant wishes to have access to the Telecom Riser Rooms on any floor in the Building where the Subleased Premises is not located, Subtenant may be subject to the supervision of the occupant(s) of such floor during the performance of any such work). All work performed by or on behalf of Subtenant in any Telecom Riser Room will be performed in strict compliance with such guidelines as Sublandlord may, from time to time, promulgate. Alternatively, Subtenant may elect to relocate Subtenant’s voice and data cabling to another location within the Subleased Premises at Subtenant’s sole cost and expense. All vertical cabling to be installed by Subtenant shall be in such room in a location designated and approved by Sublandlord and Sublandlord may need future access to allow other Subtenants to core drill and pull additional fiber.
23. Project Renovations. It is specifically understood and agreed that Landlord has no obligation and has made no promises to alter, remodel, improve, renovate, repair or decorate the Subleased Premises, Building, or any part thereof and that no representations respecting the condition of the Subleased Premises or the Building have been made by Sublandlord to Subtenant except as specifically set forth herein. However, Subtenant hereby acknowledges that Sublandlord is currently renovating or may during the Term renovate, improve, alter, or modify (collectively, the “Renovations”) the Project, the Building and/or the Subleased Premises, including, but not limited to, installing a building directory in the main lobby of the Building and providing lobby furniture consistent with the main building lobby. Subtenant hereby agrees that such Renovations shall in no way constitute a constructive eviction of Subtenant nor, except as expressly set forth in Section 6.2 above, entitle Subtenant to any abatement of Rent. Sublandlord shall have no responsibility and shall not be liable to Subtenant for any injury to or interference with Subtenant’s business arising from the Renovations, nor shall Subtenant be entitled to any compensation or damages from Sublandlord for loss of the use of the whole or any part of the Subleased Premises or of Subtenant’s personal property or improvements resulting from the Renovations, or for any inconvenience or annoyance occasioned by such Renovations.
24. Brokers. Subtenant represents that it has dealt directly with and only with NAI BT Commercial (“BT”) and Cornish & Xxxxx (“C&C”) (collectively, “Subtenant’s Broker”), as a broker in connection with this Sublease. Sublandlord represents that it has dealt directly with and only with Colliers International (“Sublandlord’s Broker”), as a broker in connection with this Sublease. Sublandlord and Subtenant shall indemnify and hold each other harmless from all claims of any brokers other than Subtenant’s Broker and Sublandlord’s Broker
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claiming to have represented Sublandlord or Subtenant in connection with this Sublease. Subtenant and Sublandlord agree that Subtenant’s Broker and Sublandlord’s Broker shall be paid commissions by Sublandlord in connection with this Sublease pursuant to a separate agreement; however, Sublandlord will pay any commission due Subtenant’s Broker to BT, who will be responsible for delivering to C&C any portion of such commission payable to C&C, and Sublandlord will have no obligation to compensate C&C directly. Subtenant expressly agrees that Subtenant will indemnify, defend, protect and hold Sublandlord harmless from and against any and all loss, cost, damage or liability arising in any manner out of a claim by C&C for any commission payment payable hereunder, provided that Sublandlord (or Sublandlord’s Broker) has delivered to BT the aggregate commission payable to Subtenant’s Broker.
25. Complete Agreement. There are no representations, warranties, agreements, arrangements or understandings, oral or written, between the parties or their representatives relating to the subject matter of this Sublease which are not fully expressed in this Sublease. This Sublease cannot be changed or terminated nor may any of its provisions be waived orally or in any manner other than by a written agreement executed by both parties.
26. USA Patriot Act Disclosures. Subtenant is currently in compliance with and shall at all times during the Term remain in compliance with the regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of the Treasury (including those named on OFAC’s Specially Designated and Blocked Persons List) and any statute, executive order (including the September 24, 2001, Executive Order Blocking Property and Prohibiting Transactions with Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action relating thereto.
27. Interpretation. Irrespective of the place of execution or performance, this Sublease shall be governed by and construed in accordance with the laws of the State of California. If any provision of this Sublease or the application thereof to any person or circumstance shall, for any reason and to any extent, be invalid or unenforceable, the remainder of this Sublease and the application of that provision to other persons or circumstances shall not be affected but rather shall be enforced to the extent permitted by law. The table of contents, captions, headings and titles, if any, in this Sublease are solely for convenience of reference and shall not affect its interpretation. This Sublease shall be construed without regard to any presumption or other rule requiring construction against the party causing this Sublease or any part thereof to be drafted. If any words or phrases in this Sublease shall have been stricken out or otherwise eliminated, whether or not any other words or phrases have been added, this Sublease shall be construed as if the words or phrases so stricken out or otherwise eliminated were never included in this Sublease and no implication or inference shall be drawn from the fact that said words or phrases were so stricken out or otherwise eliminated. Each covenant, agreement, obligation or other provision of this Sublease shall be deemed and construed as a separate and independent covenant of the party bound by, undertaking or making same, not dependent on any other provision of this Sublease unless otherwise expressly provided. All terms and words used in this Sublease, regardless of the number or gender in which they are used, shall be deemed to include any other number and any other gender as the context may require. The word “person” as used in this Sublease shall mean a natural person or persons, a partnership, a corporation or any other form of business or legal association or entity.
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28. Counterparts. This Sublease may be executed in separate counterparts, each of which shall constitute an original and all of which together shall constitute one and the same instrument. This Sublease shall be fully executed when each party whose signature is required has signed and delivered to each of the parties at least one counterpart, even though no single counterpart contains the signatures of all parties hereto.
IN WITNESS WHEREOF, the parties hereto hereby execute this Sublease as of the day and year first above written.
| SUBLANDLORD: ORACLE USA, INC., | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Print Name: | ||
| Title: | ||
| SUBTENANT: GUIDEWIRE SOFTWARE, INC., | ||
| By: | /s/ Xxxxx X. Xxxxx | |
| Print Name: | Xxxxx X. Xxxxx | |
| Title: | CFO | |
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EXHIBIT A-1
Second Floor Space
1
EXHIBIT A-2
Third Floor Space
1
EXHIBIT X-0
Xxxxxx Xxxxx Xxxxx
0
XXXXXXX X
Commencement Agreement
| Date |
Subtenant Guidewire Software, Inc.
| Address |
||||
| Re: | Commencement Letter with respect to that certain Sublease dated as of the day of , , by and between ORACLE USA, INC., a Colorado corporation, as Sublandlord, and GUIDEWIRE SOFTWARE, INC., a Delaware corporation, as Subtenant, for 88,152 rentable square feet on the second (2nd), third (3rd) and fourth (4) floors of the Building located at 0000 Xxxxxxxxxxxx Xxxxxxx, Xxx Xxxxx, Xxxxxxxxxx. |
Dear :
In accordance with the terms and conditions of the above referenced Sublease, Subtenant accepts possession of the Subleased Premises and agrees:
| 1. | The Commencement Date is ; |
| 2. | The Base Rent Schedule is as follows: |
| 3. | The Expiration Date is . |
Please acknowledge your acceptance of possession and agreement to the terms set forth above by signing all 3 counterparts of this Commencement Letter in the space provided and returning 2 fully executed counterparts to my attention.
| Sincerely, |
| Authorized Signatory |
Agreed and Accepted:
| Sbtenant: |
GUIDEWIRE SOFTWARE, INC. | |||
| By: |
||||
| Name: | ||||
| Title: | ||||
| Date: | ||||
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EXHIBIT C
Furniture
Furniture Inventory
2211 Bridgepointe, Bldg 2, 2nd floor
Inventory & Definitions
(17) Standard Private Offices – Kimball Cetra/Footprint Furniture will contain:
(1) P-top worksurface, corner worksurface and (2) straight worksurface; (3) chairs and (1) short bookcase.
(42) Cubes - Standard Kimball Cetra/Footprint (8’ x 8’) Furniture will contain:
(2) 48” work surfaces – laminate; (1) Corner work surface – laminate; (2) wood file pedestals; (2) chairs; (1) overhead storage with built in desk light.
(1) Large Classroom
| q | (94) Xxxxxxx classroom style low panel workstations |
| q | (20) training tables |
| q | (114) chairs |
(2) Large Conference Rooms
| q | Each conference room has (1) oval table, (10) office task chairs |
1
(1) Small Conference Room
| q | Conference room has round table, (6) office task chairs |
(2) Lounge Areas
| q | Each lounge area has (3) club chairs and (1) occasional table |
(2) Mail/Copy Rooms
| r | (3) blue Xxxxxxxx tables, (1) blue mail sorter |
Miscellaneous:
| q | (14) Lateral file cabinets |
| q | (11) Wooden lateral cabinets |
| q | (3) free standing wooden lockers |
Furniture Notes:
1. Number of lateral filing cabinets is an estimated number only. The actual number may be either higher or lower and neither party shall have any recourse or liability for such variance.
2. All furniture is “as is”. Drawers may or may not include keys for all drawers.
2
Exhibit C
Furniture Inventory
2211 Bridgepointe, Bldg 2, 3rd floor
Inventory & Definitions
| (26) | Standard Private Offices – Kimball Cetra/Footprint Furniture will contain: |
(1) P-top worksurface, corner worksurface and (2) straight worksurface; (3) chairs and (1) short bookcase.
(107) Cubes - Standard Kimball Cetra/Footprint (8’ x 8’) Furniture will contain:
(2) 48” work surfaces – laminate; (1) Corner work surface – laminate; (2) wood file pedestals; (2) chairs; (1) overhead storage with built in desk light.
(2) Extra Large Conference Rooms
| q | Each conference room has (1) oval table, (12) office task chairs |
(1) Large Conference Room
| q | Conference room has oval table, (10) office task chairs |
(1) Medium Conference Room
| q | Conference room has oval table, (8) office task chairs |
3
(2) Small Conference Rooms
| q | Each conference room has (1) round table, (6) office task chairs |
(2) Lounge Areas
| q | Each lounge area has (3) club chairs and (1) occasional table |
(2) Mail/Copy Rooms
| q | (4) blue Xxxxxxxx tables, (2) blue mail sorters |
Miscellaneous:
| q | (21) Lateral file cabinets |
| q | (2) Wooden credenzas |
| q | (2) Wooden lockers |
| q | (3) Free standing wooden lockers |
Furniture Notes:
1. Number of lateral filing cabinets is an estimated number only. The actual number may be either higher or lower and neither party shall have any recourse or liability for such variance.
2. All furniture is “as is”. Drawers may or may not include keys for all drawers.
4
Exhibit C
Furniture Inventory
0000 Xxxxxxxxxxxx, Xxxx 0, 0xx xxxxx
Inventory & Definitions
(26) Standard Private Offices – Kimball Cetra/Footprint Furniture will contain:
(1) P-top worksurface, corner worksurface and (2) straight worksurface; (3) chairs and (1) short bookcase.
(116) Cubes - Standard Kimball Cetra/Footprint (8’ x 8’) Furniture will contain:
(2) 48” work surfaces – laminate; (1) Corner work surface – laminate; (2) wood file pedestals; (2) chairs; (1) overhead storage with built in desk light.
(2) Extra Large Conference Rooms
| q | Each conference room has (1) oval table, (12) office task chairs |
(1) Large Conference Room
| q | Conference room has oval table, (10) office task chairs |
(1) Medium Conference Room
| q | Conference room has oval table, (8) office task chairs |
5
(2) Small Conference Rooms
| q | Each conference room has (1) round table, (6) office task chairs |
(2) Lounge Areas
| q | Each lounge area has (3) club chairs and (1) occasional table |
(2) Mail/Copy Rooms
| q | (6) blue Xxxxxxxx tables, (2) blue mail sorters |
Miscellaneous:
| q | (34) Lateral file cabinets |
| q | (2) Wooden credenzas |
| q | (2) Wooden lockers |
| q | (3) Free standing wooden lockers |
Furniture Notes:
1. Number of lateral filing cabinets is an estimated number only. The actual number may be either higher or lower and neither party shall have any recourse or liability for such variance.
2. All furniture is “as is”. Drawers may or may not include keys for all drawers.
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EXHIBIT D
Form Letter of Credit
ISSUING BANK
ADDRESS OF ISSUING BANK
DATE:
IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER:
| BENEFICIARY: |
APPLICANT: | |||||
AMOUNT: USD $
EXPIRATION: AT OUR COUNTERS
WE HEREBY ESTABLISH IN YOUR FAVOR OUR IRREVOCABLE STANDBY LETTER OF CREDIT NUMBER WHICH IS AVAILABLE WITH [ISSUING BANK] BY PAYMENT AGAINST PRESENTATION OF THE ORIGINAL OF THIS LETTER OF CREDIT AND YOUR DRAFTS AT SIGHT DRAWN ON [ISSUING BANK] AT THE ADDRESS ABOVE, ACCOMPANIED BY THE DOCUMENTS DETAILED BELOW:
A LETTER SIGNED BY A PURPORTED AUTHORIZED REPRESENTATIVE OF THE BENEFICIARY STATING THAT BENEFICIARY IS ENTITLED TO DRAW ON THIS LETTER OF CREDIT PURSUANT TO THAT SUBLEASE AGREEMENT BETWEEN AND , AS IT MAY BE AMENDED.
THIS LETTER OF CREDIT CANNOT BE MODIFIED OR REVOKED WITHOUT YOUR WRITTEN CONSENT OF BENEFICIARY.
SPECIAL CONDITIONS:
THIS LETTER OF CREDIT SHALL AUTOMATICALLY RENEW WITHOUT AMENDMENT FOR AN ADDITIONAL ONE YEAR PERIOD FROM THE CURRENT OR FOR ANY FUTURE EXPIRATION DATE, UNLESS WE SHALL NOTIFY YOU IN WRITING BY CERTIFIED MAIL, RETURN RECEIPT REQUESTED OR OVERNIGHT COURIER AT LEAST 60 DAYS PRIOR TO THE THEN CURRENT EXPIRATION DATE THAT THIS LETTER OF CREDIT WILL NOT BE RENEWED. FOLLOWING SUCH NOTIFICATION AND PRIOR TO THE EXPIRATION OF THIS LETTER OF CREDIT, YOU MAY DRAW UPON THIS LETTER OF CREDIT BY PRESENTATION OF THE SIGHT DRAFT(S) MENTIONED ABOVE, ACCOMPANIED BY A LETTER SIGNED BY A PURPORTED AUTHORIZED REPRESENTATIVE OF BENEFICIARY STATING THAT
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BENEFICIARY HAS NOT BEEN PRESENTED WITH A SUBSTITUTE LETTER OF CREDIT IN THE SAME PRINCIPAL AMOUNT, AND ON THE SAME TERMS AS THIS LETTER OF CREDIT FROM AN ISSUER REASONABLY SATISFACTORY TO YOU.
THIS LETTER OF CREDIT IS TRANSFERABLE AND MAY BE TRANSFERRED ONE OR MORE TIMES BY THE NAMED BENEFICIARY HEREUNDER OR BY ANY TRANSFEREE HEREUNDER TO A SUCCESSOR TRANSFEREE. TRANSFER OF THIS LETTER OF CREDIT IS SUBJECT TO OUR RECEIPT OF BENEFICIARY’S INSTRUCTIONS IN THE FORM ATTACHED AS EXHIBIT A, ACCOMPANIED BY THE ORIGINAL LETTER OF CREDIT AND AMENDMENT(S), IF ANY.
PARTIAL DRAWS ARE ALLOWED UNDER THIS LETTER OF CREDIT.
THIS LETTER OF CREDIT IS SUBJECT TO THE UNIFORM CUSTOMS AND PRACTICE FOR DOCUMENTARY CREDITS (1993 REVISION), INTERNATIONAL CHAMBER OF COMMERCE PUBLICATION NO. 590 AND ENGAGES US PURSUANT TO THE TERMS THEREIN.
| [ISSUING BANK] | ||||
| AUTHORIZED SIGNATURE | AUTHORIZED SIGNATURE | |||
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EXHIBIT E
Rules and Regulations
1. Sidewalks, doorways, halls, stairways, vestibules and other similar areas shall not be obstructed by any tenant or used by them for purpose other than ingress to and egress from their respective Premises, and for going from one part of the Building to another part.
2. Plumbing fixtures shall be used only for their designated purpose, and no foreign substances of any kind shall be deposited therein. Damage to any such fixture resulting from misuse by Subtenant or any employee or invitee of Subtenant shall be repaired at the expense of Subtenant.
3. Nails, screws and other attachments to the Building require prior written consent from Sublandlord.
4. All contractors and technicians rendering any installation service to Subtenant shall be subject to Sublandlord’s approval and supervision prior to performing services. This applies to all work performed in the Building, including, but not limited to, installation of telecommunications equipment, and electrical devices, as well as all installation affecting floors, walls, woodwork, windows, ceilings, and any other physical portion of the Building.
5. Movement in or out of the Building of furniture, office equipment, or other bulky material which requires the use of elevators, stairways, or Building entrance and lobby shall be restricted to hours established by Sublandlord. All such movement shall be under Sublandlord’s supervision, and the use of an elevator for such movements shall be made restricted to the Building’s freight elevators, or an elevator for such movements shall be made restricted to the Building’s freight elevators. Prearrangements with Sublandlord shall be made regarding the time, method, and routing of such movement, and Subtenant shall assume all risks of damage and pay the cost of repairing or providing compensation for damage to the Building, to articles moved and injury to persons or public resulting from such moves. Sublandlord shall not be liable for any acts or damages resulting from any such activity.
6. Corridor doors, when not is use, shall be kept closed.
7. Subtenant shall cooperate with Sublandlord in maintaining the Subleased Premises. Except as expressly set forth in the Sublease, Subtenant shall not employ any person for the purpose of cleaning the Subleased Premises other than the Building’s cleaning and maintenance personnel.
8. Deliveries of water, soft drinks, newspapers, or other such items to any Premises shall be restricted to hours established by Sublandlord and made by use of the freight elevators if Sublandlord so directs.
9. Nothing shall be swept or thrown into the corridors, halls, elevator shafts, or stairways. No birds, fish, or animals of any kind shall be brought into or kept in, on or about the Subleased Premises.
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10. No cooking shall be done in the Subleased Premises except in connection with convenience lunch room or beverage service for employees and guests (on a noncommercial basis) in a manner which complies with all of the provisions of the Sublease and which does not produce fumes or odors.
11. Food, soft drink or other vending machines shall not be placed within the Subleased Premises without Sublandlord’s prior written consent.
12. Subtenant shall not use or keep on its Subleased Premises any kerosene, gasoline, or inflammable or combustible fluid or material other than limited quantities reasonably necessary for the operation and maintenance of office equipment.
13. Subtenant shall not tamper with or attempt to adjust temperature control thermostats in the Subleased Premises. Sublandlord shall make adjustments in thermostats on call from Subtenant.
14. Subtenant shall comply with all requirements necessary for the security of the Building, including the use of service passes issued by Sublandlord for after hours movement of office equipment/packages, and signing security register in Building lobby after hours.
15. Upon termination of this Lease, Subtenant shall surrender to Sublandlord all keys and access cards to the Subleased Premises, and give to Sublandlord the combination of all locks for safes and vault doors, if any, in the Subleased Premises.
16. Sublandlord retains the right, without notice or liability to any occupant, to change the name and street address of the Building.
17. Canvassing, peddling, soliciting, and distribution of handbills in the Building are prohibited and each tenant shall cooperate to prevent these activities.
18. Subtenant shall take reasonable steps to prevent the unnecessary generation of refuse (e.g., choosing and using products, packaging, or other materials in business that minimize solid waste or that are durable, reusable, or recyclable). Subtenant shall provide or obtain recycling containers in its business for use by employees and customers, shall recycle acceptable materials in the recycling containers provided by Sublandlord, and shall otherwise participate in the recycling program established by Sublandlord for the Building. Acceptable recyclable materials may include, but are not limited to, the following: newspaper, cardboard, paperboard, office paper and other mixed paper, aluminum, tin and other metal, glass, and #1 (XXXX) and #2 (HDPE) plastics.
19. Subtenant shall not and shall cause its employees, agents, contractors, invitees, customers and visitors not to smoke in the Subleased Premises or in any portion of the Building, except those areas, if any, expressly designated as smoking areas by Sublandlord. Persons may smoke cigarettes in designated areas only if the smoker uses designated receptacles for ashes and cigarette butts and does not annoy any nonsmoking persons using the area or interfere with access to the Building.
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20. Sublandlord reserves the right to rescind or modify any of these rules and regulations and to make future rules and regulations required for the safety, protection, and maintenance of the Building, the operation and preservation of good order thereof, and the protection and comfort of the tenants and their employees and visitors. Such rules and regulations, when made and written notice given the Subtenant, shall be binding as if originally included herein.
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EXHIBIT F
Construction Guidelines for Contracted Services
The following outlines the regulations and requirements, which will be required of contracted service personnel working at or in the Building. No deviation or exception will be permitted without the express written approval of Sublandlord or its property manager.
1. All contractors to perform work at the Project must be reasonably approved by Sublandlord prior to the commencement of any construction.
2. Prior to any entry onto the Building, Subtenant or any contractors, as applicable, shall have provided to Sublandlord certificates of insurance, in form and amount satisfactory to Sublandlord, evidencing the following insurance coverages:
a. Worker’s compensation insurance covering all of their respective employees, and shall also carry public liability insurance, including property damage, all with limits, in form and with companies as are reasonably required by Sublandlord.
b. Subtenant shall carry “Builder’s All Risk” insurance in an amount approved by Sublandlord or Landlord covering the construction of the work in question, and such other insurance as Sublandlord or Landlord may reasonably require. Such insurance shall be in amounts and shall include such extended coverage endorsements as may be reasonably required by Sublandlord or Landlord.
All such policies of insurance must contain a provision that the company writing said policy will give Sublandlord thirty (30) days prior written notice of any cancellation or lapse of the effective date or any reduction in the amounts of such insurance. All policies shall insure Landlord, Sublandlord and Subtenant, as their interests may appear, as well as Subtenant’s contractors, and shall name as additional insureds Sublandlord’s property manager. All insurance, except Workers’ Compensation, maintained by Subtenant’s contractors shall preclude subrogation claims by the insurer against anyone insured thereunder. Such insurance shall provide that it is primary insurance as respects the owner and that any other insurance maintained by owner is excess and noncontributing with the insurance required hereunder.
c. Sublandlord must be named on all warranties and guaranties for all products being guarantied or warranted by any contractor, sub-contractor, and/or manufacturing supplier.
3. All workers must be properly, permanently and visually identified. The identification system must be approved prior to the start of any work and may take the form of badges for attachment to clothing. All companies will maintain an updated list of authorized workers with building management and notify management of each change.
4. All workers shall maintain their actions while in the Building in a professional manner to include but not limited to the following:
a. No abusive language.
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b. No smoking, eating or drinking except in areas designated by the Building manager.
c. No use of radios.
5. Offenses that will result in immediate request for discharge include, but are not limited to the following:
a. Drinking alcoholic beverages on the job, or coming to work in an intoxicated condition.
b. Possession or consuming drugs or any other illegal substances while at the property.
c. Using or removing Building manager’s, tenant’s or subcontractor’s possessions from the property without prior authorization.
d. Violating any state or federal statutes while working at the Building.
e. Possessing firearms or explosives while working at the Building.
f. Using property facilities for jobs other than specific work assignments.
g. Accepting commissions, fees or kickbacks from any vendors, tenants or contractors involved in providing a service or product to the Building.
h. Physically abusing or harming any individual who works at or visits the Building.
i. Duplicating any keys used in the Building.
j. Providing Building access at anytime to anyone not authorized by Building manager.
6. Contractor and contractor employee parking shall be only in areas reasonably designated by Sublandlord. The loading dock will not be used for parking. Oversized vehicles will use street parking as far as possible from public entries and operating retail facilities.
7. All construction staging storage and temporary contractor facilities will be located in specific areas assigned by the Building management. Contractors will be responsible for the maintenance, housekeeping and demolition of all temporary facilities.
8. The entrances lobbies passages corridors elevators stairways and other common areas will not be obstructed by any of the contractors agents during construction.
9. No storage of flammable substances will be allowed or stored in the Building unless approved by Building management and in accordance with approved building codes and regulations.
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10. Any work that would cause an inconvenience (in Sublandlord’s reasonable discretion) to other occupants in the Building or any work in an occupied lease space must be done after Building Hours or on the weekend. Any structural modifications or floor penetrations created with the use of core drilling machines pneumatic hammers etc. must be performed between the hours of 1 p.m. to 6:00 p.m. on Saturdays and 11:00 a.m. to 6:00 p.m. on Sundays or as otherwise permitted by law and the Building rules and regulations. Likewise any construction techniques causing excessive noise or vapors will be conducted only during these hours.
11. Prior to starting the work the general mechanical and electrical contractors will check in and go over the job with the chief Building engineer and will furnish to such building engineer mechanical and electrical shop drawings. All panels and transformers are to match the “Building Standard” systems and all materials and methods used to connect panels and transformers must be approved by Sublandlord. In connection therewith:
a. The Building is fed with Xxxxxx Hammer Bus duct, any time a new 480 volt panel is added, Contractor must add a Xxxxxx Hammer Bus duct disconnect;
b. The existing transformers serving the Building are Xxxxxx Hammer; all transformers need to be copper and K13 rated;
c. The existing panels are Xxxxxx Hammer. Any 120/208 and 277/480 volt panels need to be copper bus, bolt on breakers and 65K A/C rated. It is critical that any breakers installed in the panels at 65K rated; and
d. The fire alarm system is an Xxxxxxx addressable fire alarm panel; any contractor who performs who affecting this system must e approved in advance by Sublandlord. [SUBJECT TO FURTHER CONFIRMATION BY SUBTENANT’S PROJECT MANAGER]
12. Dust and air contamination are to be controlled with temporary partitions which are sealed adequately to prevent dust from entering leased areas or mechanical equipment. Floor sweep or a comparable material will be used when sweeping concrete or tile floors. If air conditioning is provided to construction space, air handler filters will be replaced at the completion of work at contractors’ expense.
13. Contractors are prohibited from staining, painting (except wall painting), or lacquering during the working hours of 8:00 a.m. - 6:00 p.m. Monday - Friday and 8:00 a.m. - 2:00 p.m. Saturday [(except wall painting)]. All such work must be stopped by 5:00 a.m. on mornings of normal business days. Contractor shall provide and maintain deodorizing and air purifier machines during all painting applications and for a minimum of six (6) hours after all operations have stopped.
14. There will be absolutely no use of Sublandlord’s property to include, but not be limited to, telephones, dollies, vending machines, copiers, etc. unless specifically approved in writing by the tenant in advance of their use. Any unauthorized telephone charges will be billed back to the Contractor.
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15. No supplies, trash, or storage of these will be allowed in the dock area at any time.
16. No doors will be propped open or held open to the degree that such will cause an alarm or jeopardize security. Contractors shall be responsible for charges resulting from such alarms and/or security violations.
17. The Building’s manager, at its sole discretion, may require General Contractor to use masonite to cover the floors. All moving companies will be required to cover the floors with masonite prior to any items entering or exiting the Building.
18. All work areas are to be broom cleaned daily of trash, debris and non-useful materials. Failure to do so will result in Building management providing this service and charging the Subtenant or Subtenant’s general contractor accordingly. The general contractor is responsible for providing trash receptacles. The Building compactor will not be used unless prior approval has been granted by Building management. Walk-off mats, plastic tarping and Masonite will be used to avoid unnecessary debris and buildup. If cleanup does not meet with Building management satisfaction, building personnel will clean the area and back-charge the responsible contractor.
19. Fire alarm speakers must be installed and connected to the Building’s existing system throughout the Premises in compliance with applicable Fire Code requirements. Contractor shall coordinate all Fire Alarm and Fire Sprinkler system related work with Building security and Building engineering. No Fire Alarm or Fire Sprinkler system related work will be performed until proper steps have been taken to assure that false alarms will not sound, that adequate building protection will be maintained, and that the proper agencies have been notified of Fire Safety system downtime. Contractor will also coordinate with Building Security and Building Engineering for the proper restoration of Fire Alarm and Fire Sprinkler systems to normal operation once work is complete. Under no circumstances will Contractor leave the property until all Fire Alarm and Fire Sprinkler systems, which they have affected, have been restored to their normal operating conditions.
20. The General Contractor shall maintain all applicable federal, state and local rules and regulations for each Building as required.
21. Since each job is different in scope, it may be necessary that the contractors set up job meetings according to the job needs. Each contractor must set their own time interval between meetings, notify Building management of their scheduling, and once the intervals are set, maintain them on a regular basis. This will help to coordinate and control attendance.
22. Any contractor who anticipates work on the Building’s life safety systems (sprinklers, smoke detectors, fire command speakers, fire alarms, etc.) will notify Building management 24 hours in advance prior to commencement of work.
23. All work to be performed after hours must be scheduled with Building management at least 24 hours in advance and must be accompanied by a security clearance request.
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24. Bobtails, semi-trailers, etc. are authorized to be parked in the loading dock only for the time necessary to unload equipment and material. Unless prior approval is obtained from Building management vehicles left at the loading dock will be towed at owner’s expense. No contractors or their employees are authorized to park in visitors parking or in any fire lanes at any time.
25. Material deliveries must be scheduled through Building management. Freight elevators will be the only elevators used by contractor or agents. When the freight elevator is used to move materials, contractors will required to release the elevator immediately after unloading is complete. The elevator will not be placed on independent service without prior approval of Building management. Landlord will cooperate with contractor regarding contractor’s use of the freight elevators and loading docks and in the placement of dumpsters to be provided by contractor and Landlord will not charge a fee in connection with the use or accommodation thereof.
26. Contractor personnel are not to use tenant occupied areas, including vending machines and break-rooms, at any time. Restrooms on tenant occupied floors are not to be used by contractor personnel. Contractor personnel are to use only the restrooms specified by Building management. Unless on specific assignment which has been pre-approved by Building management. No contractor personnel are to enter tenant office areas.
27. Applicable keys and access cards are controlled and distributed by the security department. If a contractor wishes to check out keys or access cards, they must be prepared to surrender their driver’s license on request. The driver’s license will be returned when the equipment is returned, contractors will not issue keys or access cards for service areas, utility closets or other Building areas to anyone including tenants, telephone and utility personnel or other construction workers. Keys and access cards will not be taken off property for any reason. If any keys are lost, contractor will be subject to a replacement fee. This may also include the cost of re-keying the affected area or possibly the entire Building.
28. Any damage to other tenant spaces, public areas or common facilities of the building is to be reported immediately to Building management. Contractor is expected to repair any damage made by their personnel. If corrections are not made, Building personnel will make the necessary repairs and back-charge the responsible contractor.
29. Contractors shall check in and out with Building security on a daily basis.
30. Contractor shall take appropriate action to prevent false fire alarm or other unnecessary alarm, which may occur as a direct or indirect result of their work. This shall include protection of smoke detection devices from smoke, dust and debris during construction, use of sweeping compound when sweeping floors to prevent dust, and proper precautionary measures taken when working around other alarm initiating devices such as pull stations, water flow devices and Fire Safety related power devices. All work that, for any reason, may activate the Fire Alarm system must first be reported to Building security so that appropriate measure may be taken to prevent a false alarm. Such work includes, but is not limited to sweeping, painting, sanding, soldering, brazing, welding, sawing, etc.
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31. Contractor is to provide, and pay all fees for, all permits, inspection, certificates of occupancy, maintenance and operation manuals, equipment warranties, etc.
32. Should the contractor perform any work that does not comply with the requirements of applicable laws, Subtenant shall bear all costs that arise in correcting such defects.
33. All contractors (including the general contractor) shall contact Sublandlord and schedule time periods during which they may use Building and Building facilities in connection with the Contractor of Subtenant Improvements (e.g., elevators, excess electricity, etc.).
34. Contractor shall maintain existing plumbing, HVAC, and fire alarm systems, as well as other existing systems, and must retain all existing functions in service except for scheduled interruptions approved by Building management 24-hours in advance.
35. Any Building-wide power shutdowns must be scheduled with Sublandlord and Landlord at least thirty (30) days prior to the shutdown in question.
All penetrations of piping, duct work, etc. through walls partitions and floors shall be sealed to Building management’s satisfaction to maintain the integrity of the Building’s fire safety rating. Also, any openings in walls and partitions made by the contractor for access to construction work shall be patched and/or repaired to Building management’s satisfaction. All core drill pieces are to be removed by the contractor.
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EXHIBIT G
Copy of the Master Lease
1
|
| 00000 Xxxxx Xx Xxxx Xxxx. Xxxxx 000 Xxxxxxxxx, XX 00000-0000 |
408.446.0700 Facsimile: 408.446.0583 www. xxxxxxx.xxx |
Lease between
Sobrato Interests III and Siebel Systems, Inc.
Xxxxxxxx 0 - 0000 Xxxxxxxxxxxx Xxxxxxx, Xxx Xxxxx
| Section | Page # | |||
| Parties |
1 | |||
| Premises |
1 | |||
| Definitions |
1 | |||
| Description |
2 | |||
| Use |
3 | |||
| Permitted Uses |
3 | |||
| Uses Prohibited |
3 | |||
| Advertisements and Signs |
3 | |||
| Covenants Conditions and Restrictions |
3 | |||
| Term and Rental |
4 | |||
| Base Monthly Rent |
4 | |||
| Rental Adjustment |
4 | |||
| Late Charges |
4 | |||
| Security Deposit |
5 | |||
| Construction |
6 | |||
| Building Shell Plans |
6 | |||
| Tenant Improvement Plans |
6 | |||
| Tenant Improvement Pricing |
7 | |||
| Change Orders |
7 | |||
| Building Shell Costs |
7 | |||
| Tenant Improvement Costs |
8 | |||
| Construction |
8 | |||
| General Contractor Overhead & Profit |
8 | |||
| Tenant Delays |
9 | |||
| Insurance |
9 | |||
| Punch List & Warranty |
9 | |||
| Other Work by Tenant |
9 | |||
| Acceptance of Possession and Covenants to Surrender |
10 | |||
| Delivery and Acceptance |
10 | |||
| Condition Upon Surrender |
10 | |||
| Failure to Surrender |
10 | |||
| Alterations and Additions |
11 | |||
| Tenant’s Alterations |
11 | |||
| Free From Liens |
11 | |||
| Compliance With Governmental Regulations |
12 | |||
| Maintenance of Premises |
12 | |||
| Landlord’s Obligations |
12 | |||
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| Tenant’s Obligations |
12 | |||
| Landlord and Tenant’s Obligations Regarding Reimbursable Operating Costs |
12 | |||
| Reimbursable Operating Costs |
13 | |||
| Tenant’s Allocable Share |
13 | |||
| Exclusions to Reimbursable Operating Costs |
13 | |||
| Waiver of Liability |
14 | |||
| Tenant’s Right to Audit |
14 | |||
| Hazard Insurance |
15 | |||
| Tenant’s Use |
15 | |||
| Landlord’s Insurance |
15 | |||
| Tenant’s Insurance |
15 | |||
| Waiver |
16 | |||
| Taxes |
16 | |||
| Utilities |
16 | |||
| Toxic Waste and Environmental Damage |
16 | |||
| Tenant’s Responsibility |
16 | |||
| Tenant’s Indemnity Regarding Hazardous Materials |
17 | |||
| Landlord’s Indemnity Regarding Hazardous Materials |
18 | |||
| Actual Release by Tenant |
18 | |||
| Environmental Monitoring |
19 | |||
| Tenant’s Default |
19 | |||
| Remedies |
19 | |||
| Right to Re-enter |
20 | |||
| Abandonment |
20 | |||
| No Termination |
21 | |||
| Non-Waiver |
21 | |||
| Performance by Landlord |
21 | |||
| Landlord’s Liability |
21 | |||
| Limitation on Landlord’s Liability |
21 | |||
| Limitation on Tenant’s Recourse |
22 | |||
| Indemnification of Landlord |
22 | |||
| Destruction of Premises |
22 | |||
| Landlord’s Obligation to Restore |
22 | |||
| Limitations on Landlord’s Restoration Obligation |
23 | |||
| Tenant’s Rights with Respect to a Destruction of the Premises |
23 | |||
| Condemnation |
23 | |||
| Assignment or Sublease |
24 | |||
| Consent by Landlord |
24 | |||
| Assignment or Subletting Consideration |
24 | |||
| No Release |
25 | |||
| Reorganization of Tenant |
25 | |||
| Permitted Transfers |
25 | |||
| Effect of Default |
26 | |||
| Effects of Conveyance |
26 | |||
| Successors and Assigns |
26 | |||
| Option to Extend the Lease Term |
26 | |||
| Grant and Exercise of Option |
26 | |||
| Determination of Fair Market Rental |
27 | |||
| Resolution of a Disagreement over the Fair Market Rental |
27 | |||
| Personal to Tenant |
28 | |||
| Extension Right in the Event the Building 3 Option is Not Exercised |
28 |
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| Option to Extend the Lease Term |
28 | |||
| Grant and Exercise of Option |
28 | |||
| Lease Commencement and Base Monthly Rent |
28 | |||
| Right of First Offering to Lease |
29 | |||
| Exclusions |
29 | |||
| Right of First Offering to Purchase |
29 | |||
| Grant and Exercise of Option |
29 | |||
| Exclusions |
30 | |||
| General Provisions |
30 | |||
| Attorney’s Fees |
30 | |||
| Authority of Parties |
30 | |||
| Brokers |
30 | |||
| Choice of Law |
31 | |||
| Dispute Resolution |
31 | |||
| Entire Agreement |
32 | |||
| Entry by Landlord |
32 | |||
| Estoppel Certificates |
32 | |||
| Exhibits |
33 | |||
| Interest |
33 | |||
| Modifications Required by Lender |
33 | |||
| No Presumption Against Drafter |
33 | |||
| Notices |
33 | |||
| Property Management |
33 | |||
| Rent |
33 | |||
| Representations |
33 | |||
| Rights and Remedies |
34 | |||
| Severability |
34 | |||
| Submission of Lease |
34 | |||
| Subordination |
34 | |||
| Survival of Indemnities |
35 | |||
| Time |
35 | |||
| Transportation Demand Management Programs |
35 | |||
| EXHIBIT A - Premises and Project – Initial Buildout |
37 | |||
| EXHIBIT B - Premises and Project – Full Buildout |
38 | |||
| EXHIBIT C - Declaration of Covenants and Grant of Easements |
39 | |||
| EXHIBIT D - Shell Plans and Specifications |
40 | |||
| EXHIBIT E - Building Shell Definition |
41 | |||
| EXHIBIT F - Tenant Improvement Plans and Specifications |
43 | |||
| EXHIBIT G - Subordination, Nondisturbance and Attornment Agreement |
44 |
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| | 00000 Xxxxx Xx Xxxx Xxxx. |
408.446.0700 | |||
| Suite 200 |
Facsimile: 408.446.0583 | |||
| Xxxxxxxxx, XX 00000-0000 |
xxx.xxxxxxx.xxx |
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IN WITNESS WHEREOF, Landlord and Tenant have executed this Lease on the day and year first above written.
| Landlord: SOBRATO INTERESTS III a California Limited Partnership |
Tenant: SIEBEL SYSTEMS, INC. a Delaware Corporation | |||||||
| By: | Illegible | By: | Illegible | |||||
| Its: | General Partner | Its: | ||||||
| Master Landlord: THE SOBRATO 1979 REVOCABLE TRUST | ||||||||
| By: | Illegible |
| ||||||
| Its: | Trustee | |||||||
Page 36
THIRD AMENDMENT TO LEASE
This Third Amendment To Lease (“Third Amendment”) is made and entered into as of August 11, 2006 (the “Effective Date”) by and between Sobrato Interests III, a California Limbed Partnership, (“Landlord”), Oracle USA, Inc., a Colorado Corporation, as successor in interest to Siebel Systems, Inc. (“Siebel”), and Oracle Corporation, a Delaware Corporation, (“Guarantor”).
RECITALS
A. Landlord and Siebel previously entered into that certain Lease dated March 11, 1999 (the “Original Lease”), regarding Landlord’s lease to Siebel of the property commonly known as 0000 Xxxxxxxxxxxx Xxxxxxx, Xxx Xxxxx, Xxxxxxxxxx, as more particularly described in the Lease (the “Premises”).
B. The Original Lease has been amended by that certain First Amendment to Lease dated as of June 11, 1999 (the “First Amendment”) and by that certain Second Amendment to Lease dated as of July 31, 2000 (the “Second Amendment”) (the Original Lease as amended by the First Amendment and by the Second Amendment, being referred to herein as the “Lease”).
C. On or about January 31, 2006, Siebel ceased trading as a publicly-owned company and became a subsidiary of Guarantor as a result of a merger.
D. In exchange for the consideration set forth herein, and pursuant to the terms of the Lease, Landlord and Tenant have agreed to modify the terms and conditions of the Lease as set forth in this Third Amendment, in order to add the Guarantor under the Lease.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
AGREEMENT
1. GUARANTY
A. From the Effective Date, Guarantor continually, absolutely, irrevocably, and unconditionally guarantees the full, faithful, and timely payment and performance by Tenant of all of Tenant’s obligations (including the timely payment of all amounts that Tenant may at any time owe) under or arising out of the Lease, or any extensions, renewals, or modifications of the Lease, including payment and performance of all obligations of Tenant which may survive the expiration or termination of the Lease. The provisions contained in this Section 1 are collectively referred to herein as the “Guaranty”.
B. Guarantor authorizes Landlord, without notice or demand and without affecting Guarantor’s liability under the Guaranty, to:
(1) consent or agree to any extensions, accelerations, or other changes in the time for any payment provided for in the Lease, or consent or agree to any other alteration of any covenant, term, or condition of the Lease in any respect, and to consent to any assignment, subletting, or reassignment of the Lease;
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(2) take and hold security for any payment provided for in the Lease or for the performance of any covenant, term, or condition of the Lease, or exchange, waive, or release any security and Guarantor hereby waives any right to require Landlord to proceed against or exhaust any security including any rights under California Civil Code Sections 2899 and 3433;
(3) apply any security and direct the order or manner of its sale as Landlord may determine. Notwithstanding any termination, renewal, extension or holding over of the Lease, or any demand for performance, or other enforcement of Guarantors obligations under the Guaranty, the Guaranty shall continue until all of the covenants and obligations on the part of Tenant to be performed have been fully and completely performed by Tenant, and Guarantor shall not be released of any obligation or liability under the Guaranty so long as there is any claim against Tenant arising out of the Lease that has not been satisfied or performed by Tenant or waived in writing for the express benefit of Guarantor; and
(4) renew, modify, amend or extend the Lease, The Guarantor waives its rights under California Civil Code Section 2819.
C. The obligations of Guarantor under the Guaranty are independent of the obligations of Tenant. Landlord may, at Landlord’s option, proceed immediately and directly against Guarantor, jointly or severally, in order to enforce the performance of the obligations of Tenant under the Lease. A separate action may be brought and prosecuted against Guarantor, whether or not any action is first or subsequently brought against Tenant, or whether or not Tenant is joined in any action, and Guarantor may be joined in any action or proceeding commenced by Landlord against Tenant arising out of, in connection with, or based upon the Lease. The liability of Guarantor under the Guaranty shall be primary and it shall not be necessary for Landlord, in order to enforce its rights hereunder, upon the default by Tenant, to first give Guarantor notice of Tenant’s default or institute suit or pursue or exhaust its legal remedies against Tenant.
D. “Tenant” as used in the Guaranty shall include all successors, assigns and other transferees of Tenant and any subsequent transferees of all or any part of Tenant’s interest under the Lease and the Guarantor shall continue to remain primarily liable and obligated for the full payment and performance by such successors, assigns and transferees of all obligations of the tenant under the Lease.
E. Termination of the Lease for Tenant’s default under the Lease shall not extinguish, release or, in any way, affect or diminish the obligations of Guarantor hereunder. In no event shall Landlord be obligated to lease any of the premises identified in the Lease to Guarantor after such termination. Upon termination of the Lease, as a result of Tenant’s default thereunder, the Guaranty shall extend to the payment to Landlord of all damages payable by Tenant.
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F. Until all of the obligations of Tenant under the Lease are fully performed and observed, Guarantor covenants that Guarantor: (i) shall have no right of subrogation against Tenant by reason of any payments or acts of performance by Guarantor in compliance with the obligations of Guarantor hereunder; and (ii) shall have no right to enforce any remedy which Guarantor now or hereafter shall have against Tenant by reason of any one or more payments or acts of performance by Guarantor in compliance with the obligations of Guarantor hereunder.
G. Guarantor hereby waives: (i) all defenses based upon any legal disability of Tenant or any discharge or limitation of liability of Tenant, to Landlord, whether consensual or arising by operation of law or any bankruptcy, insolvency or debtor-relief proceeding or from any other cause; (ii) the right to require Landlord to proceed against Tenant or to pursue any other remedy in Landlord’s power or any defense based upon an election of remedies by Landlord; (iii) any right to participate in any security now or later held by Landlord; (iv) all presentments, demands for performance, notice of nonperformance, protests, notices of protest, dishonor or acceptance of the Guaranty and all notices of the existence, creation or incurring of new or additional obligations; and (v) all rights to be exonerated hereunder pursuant to the provisions of California Civil Code Sections 2787 through 2855 and pursuant to any other statute or rule of law of similar import.
H. Guarantor is relying upon its own knowledge and is fully informed with respect to Tenant’s financial condition. Guarantor assumes full responsibility for keeping fully informed of Tenant’s financial condition and of all other circumstances affecting Tenant’s ability to perform its obligations to Landlord, and agrees that Landlord will have no duty to report to Guarantor any information Landlord receives about Tenant’s financial condition or any circumstances bearing on Tenant’s ability to perform.
I. Any prior or subsequent guaranty by Guarantor or by any other guarantor of Tenant’s obligations to Landlord shall not be deemed to be in lieu of or to supersede or terminate the Guaranty but shall be construed as an additional or supplementary guaranty unless otherwise expressly provided therein. The Guaranty shall remain in full force and effect, notwithstanding that other guarantors from time to time may guarantee or otherwise become responsible for the performance of any of the terms, covenants and conditions of the Lease or are released from such guaranties.
J. Within twenty (20) days of written demand by Landlord, Guarantor shall deliver to Landlord and to any prospective purchaser, mortgagee and/or beneficiary under a deed of trust, or other lender designated by Landlord, an estoppel certificate, executed and acknowledged by Guarantor, to the effect that the Guaranty is in full force and effect and has not been amended or terminated; provided that Guarantor shall not be obligated to provide more than two (2) such estoppel certificates per calendar year. Guarantor shall also certify such other matters relating to the Lease to Guarantor’s actual knowledge, the premises leased pursuant to the Lease or the Guaranty as may be reasonably requested by a lender making a loan to Landlord or a purchaser of any of such premises from Landlord.
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K. The Guaranty shall remain and continue in full force and effect, notwithstanding: (i) the commencement or continuation of any case, action, or proceeding by, against or concerning Tenant, under any federal or state bankruptcy, insolvency, or other debtor’s relief law, including, without limitation: (x) a case under Title 11 of the United States Code concerning Tenant, whether under Chapter 7, 11 or 13 of such Title or under any other Chapter, or (y) a case, action or proceeding seeking Tenant’s financial reorganization or an arrangement with any of Tenant’s creditors; (ii) the voluntary or involuntary appointment of a receiver, trustee, keeper or other person who takes possession of substantially all of Tenant’s assets or of any asset used in Tenant’s business on any portion of the premises leased pursuant to the Lease, regardless of whether such appointment occurs as a result of insolvency or other cause; or (iii) the execution of an assignment for the benefit of creditors of substantially all assets of Tenant available by law for the satisfaction of judgment creditors.
L. In the event any action or proceeding should be commenced between Landlord and Guarantor to enforce or interpret any of the terms, covenants or conditions of the Guaranty, the prevailing party in such action or proceeding shall be entitled to recover from other party, in any such action or proceeding in which it shall prevail, all reasonable attorneys’ fees, costs and expenses.
M. The Guaranty may not be changed, waived, discharged or terminated orally or by course of conduct, but rather only by an instrument in writing signed by the party against whom enforcement of the charge, waiver, discharge or termination is sought.
N. The Guaranty shall be governed by and construed in accordance with the laws of the State of California. Guarantor hereby submits to the legal jurisdiction of the State of California and to the service of process of any court of the State of California. The parties agree that all disputes shall be determined by resort to the courts of California of competent jurisdiction, with venue in San Francisco County.
O. The Guaranty shall be binding upon Guarantor and Guarantor’s successors, and assigns, and shall inure to the benefit of Landlord and Landlord’s successors and assigns. Landlord may, without notice, assign the Guaranty, the Lease, or the rents and other sums payable under the Lease, in whole or in part, and encumber or otherwise hypothecate all or any of the foregoing.
2. LIMITATION OF AMENDMENT.
Any capitalized terms used herein that are not specifically defined shall have the same meaning as set forth in the Lease. Except as otherwise modified by this Third Amendment, all other terms and conditions of the Lease as amended remain unchanged and in full force and effect. In the event of any conflict between the provisions of this Third Amendment and the provisions of other portions of the Lease, the provisions of this Third Amendment shall control. All references herein to the Lease shall be as amended by this Third Amendment.
3. COUNTERPARTS.
This Third Amendment may be executed in one or more counterparts, all of which shall be considered one and the same agreement, and each of which shall be deemed an original.
4
IN WITNESS WHEREOF, the Parties have executed this Third Amendment as of the date first written above.
| SOBRATO INTERESTS III, a California Limited Partnership | ||
| By: | /s/ Illegible | |
| Its: | Illegible | |
| ORACLE USA, INC., a Colorado Corporation | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Its: | Xxxxxxx X. Xxxxx VP, Real Estate and Facilities | |
| ORACLE CORPORATION, a Delaware Corporation | ||
| By: | /s/ Xxxxxxx X. Xxxxx | |
| Its: | Xxxxxxx X. Xxxxx VP, Real Estate and Facilities | |
| THE SOBRATO 1979 REVOCABLE TRUST | ||
| By: | /s/ Illegible | |
| Its: | Trustee | |
5
EXHIBIT C
Declaration of Covenants, Conditions and Restrictions
(Bridgepointe Commercial)
By and Between
THE SOBRATO 1979 REVOCABLE TRUST, AS AMENDED
(“Sobrato Trust”)
and
SOBRATO INTERESTS III, A CALIFORNIA LIMITED PARTNERSHIP
(“SI III”)
TABLE OF CONTENTS
| Page | ||||||
| ARTICLE 1 DEFINITIONS |
3 | |||||
| ARTICLE 2 DESCRIPTION OF PROJECT, DIVISION OF PROPERTY, AND CREATION OF PROPERTY RIGHTS |
6 | |||||
| 2.1. |
Description of Project |
6 | ||||
| 2.1.1 Common Area |
7 | |||||
| 2.1.1.1 Partition of Common Area |
7 | |||||
| 2.1.2 Airspace Lots |
7 | |||||
| 2.2 |
Non-Exclusive Easements Reserved and Established over Common Area |
8 | ||||
| 2.2.1 Ingress, Egress, Use, Occupancy and Enjoyment |
9 | |||||
| 2.2.2 Structural Support |
9 | |||||
| 2.2.3 Encroachment Easements |
9 | |||||
| 2.2.4 Maintenance and Construction Easements |
10 | |||||
| 2.2.5 Drainage Easements |
10 | |||||
| 2.2.6 Parking |
11 | |||||
| 2.2.7 Owners’ Rights and Easements for Utilities |
11 | |||||
| 2.3 |
Common Building Easement |
12 | ||||
| 2.4 |
Exclusive Airspace Lot Easements over Common Areas |
13 | ||||
| 2.4.1 Additional Restricted Common Area |
13 | |||||
| 2.5 |
Other Easements |
13 | ||||
| 2.6 |
Right of Entry and Use |
13 | ||||
| 2.7 |
Easements to Accompany Conveyance of Airspace Lot |
14 | ||||
| 2.8 |
Delegation of Use |
14 | ||||
| 2.9 |
No Merger |
14 | ||||
| ARTICLE 3 ASSOCIATION, ADMINISTRATION, MEMBERSHIP AND VOTING RIGHTS |
15 | |||||
| 3.1 |
Membership |
15 | ||||
| 3.2 |
Transferred Membership |
15 | ||||
| 3.3 |
Membership and Voting Rights |
15 | ||||
| 3.4 |
Association to Manage Common Area |
16 | ||||
| ARTICLE 4 MAINTENANCE AND ASSESSMENTS |
16 | |||||
| 4.1 |
Creation of the Lien and Personal Obligation of Assessments |
16 | ||||
| 4.2 |
Purpose of Assessments |
16 | ||||
| 4.3 |
Annual Assessments |
16 | ||||
| 4.4 |
Special Assessments |
17 | ||||
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| 4.5 |
Division of Assessments |
17 | ||||
| 4.6 |
Date of Commencement of Annual Assessments; Due Dates |
17 | ||||
| 4.7 |
Effect of Nonpayment of Assessments |
18 | ||||
| 4.8 |
Transfer of Airspace Lot |
18 | ||||
| 4.9 |
Priorities; Enforcement; Remedies |
18 | ||||
| 4.10 |
Unallocated Taxes |
19 | ||||
| ARTICLE 5 DUTIES AND POWERS OF THE ASSOCIATION |
20 | |||||
| 5.1 |
Duties |
20 | ||||
| 5.1.1 Maintenance |
20 | |||||
| 5.1.2 Insurance |
21 | |||||
| 5.1.2.1 Association Insurance |
21 | |||||
| 5.1.2.2 Owner Insurance |
23 | |||||
| 5.1.3 Discharge of Liens |
25 | |||||
| 5.1.4 Assessments |
25 | |||||
| 5.1.5 Payment of Expenses |
25 | |||||
| 5.1.6 Enforcement |
25 | |||||
| 5.2 |
Powers |
25 | ||||
| 5.2.1 Utility Service and Utilities |
25 | |||||
| 5.2.2 Utility Easements |
25 | |||||
| 5.2.3 Manager |
25 | |||||
| 5.2.4 Non-Exclusive Easements Reserved and Established over Common Area |
25 | |||||
| 5.2.5 Access |
25 | |||||
| 5.2.6 Assessments, Liens and Fines |
26 | |||||
| 5.2.7 Non-Exclusive Easements Reserved and Established over Common Area |
26 | |||||
| 5.2.8 Acquisition, Alteration and Disposition of Property |
26 | |||||
| 5.2.9 Loans |
26 | |||||
| 5.2.10 Dedication |
26 | |||||
| 5.2.11 Contracts |
27 | |||||
| 5.2.12 Delegation |
27 | |||||
| 5.2.13 Appointment of Trustee |
27 | |||||
| 5.2.14 Non-Exclusive Easements Reserved and Established over Common Area |
27 | |||||
| 5.2.15 Other Powers |
27 | |||||
| 5.2.16 Water and Garbage Service |
27 | |||||
| 5.3 |
Commencement of Association’s Duties and Powers |
28 | ||||
| ARTICLE 6 CONSTRUCTION WORK/ARCHITECTURAL CONTROL |
28 | |||||
| 6.1 |
Construction of Initial Project Improvements; Payment of Common Area and Offsite Costs |
28 | ||||
| 6.2 |
Approval of Plans |
28 | ||||
| 6.3 |
Architectural Control Committee |
29 | ||||
| 6.4 |
Penetrations/Structural Integrity |
29 | ||||
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| ARTICLE 7 USE RESTRICTIONS |
30 | |||||
| 7.1 |
Use of Projects |
30 | ||||
| 7.2 |
Nuisances |
31 | ||||
| 7.3 |
Emissions |
31 | ||||
| 7.4 |
Vehicle Restrictions and Towing |
31 | ||||
| 7.5 |
Signs and Advertising |
32 | ||||
| 7.6 |
Garbage and Refuse Disposal |
32 | ||||
| 7.7 |
Radio and Television Antennas |
33 | ||||
| 7.8 |
Overloading |
33 | ||||
| 7.9 |
Liability of Owners for Damage to Common Area |
33 | ||||
| 7.10 |
Restrictions on Conduct of Business |
33 | ||||
| 7.10.1 Noise |
33 | |||||
| 7.10.2 Vibration |
33 | |||||
| 7.11 |
Window Coverings |
33 | ||||
| 7.12 |
Commonly Metered Utilities |
33 | ||||
| 7.13 |
Non-Exclusive Easements Reserved and Established over Common Area |
33 | ||||
| ARTICLE 8 OWNER’S RIGHT AND OBLIGATION TO MAINTAIN AND REPAIR |
34 | |||||
| 8.1 |
Owner’s Right and Obligation to Maintain and Repair |
34 | ||||
| 8.2 |
Owner’s Failure to Maintain |
34 | ||||
| 8.3 |
Conduct of Work |
34 | ||||
| ARTICLE 9 | ||||||
| 9.1 |
Owner’s Responsibility |
35 | ||||
| 9.2 |
Association Responsibilities |
35 | ||||
| ARTICLE 10 CONDEMNATION |
37 | |||||
| ARTICLE 11 GENERAL PROVISIONS |
38 | |||||
| 11.1 |
Enforcement |
38 | ||||
| 11.2 |
Invalidity of Any Provision |
38 | ||||
| 11.3 |
Term |
38 | ||||
| 11.4 |
Amendments |
38 | ||||
| 11.5 |
Mortgagee Rights and Protections |
39 | ||||
| 11.5.1 Notice by Owner |
39 | |||||
| 11.5.2 Subordination |
39 | |||||
| 11.5.3 Assignment of Voting Rights |
39 | |||||
| 11.6 |
Restriction on amendments to Project Documents or Change in Relationship |
39 | ||||
| 11.7 |
Miscellaneous Rights of Mortgagee |
40 | ||||
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| 11.7.2 Title by Foreclosure |
41 | |||||
| 11.7.3 Copies of Project Documents |
41 | |||||
| 11.7.4 Audited Statement |
41 | |||||
| 11.7.5 Notice of Action |
41 | |||||
| 11.7.6 Payment of Taxes or Insurance by Mortgagees |
41 | |||||
| 11.8 |
Termination of Any Responsibility of Declarant |
42 | ||||
| 11.9 |
Owner’s Compliance |
42 | ||||
| 11.10 |
Notice |
42 | ||||
| 11.11.1 REQUEST FOR ARBITRATION |
42 | |||||
| 11.11.2 ARBITRATION PROCEDURES |
43 | |||||
| 11.12 |
Number; Gender |
44 | ||||
| 11.13 |
Joint and Several Liability |
44 | ||||
| 11.14 |
Not a Public Dedication |
44 | ||||
| 11.15 |
Attorneys’ Fees |
44 | ||||
| 11.16 |
Estoppel Certificates |
44 | ||||
| 11.17 |
Cooperation |
45 | ||||
| 11.18 |
Reasonable Consents |
45 | ||||
| 11.19 |
Additional Easements |
45 | ||||
| 11.20 |
Construction |
45 | ||||
| 11.21 |
Covenants and Agreements Run With Land |
45 | ||||
| LIST OF EXHIBITS | v | |||||
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LIST OF EXHIBITS
| EXHIBIT A |
ASSESSMENT PERCENTAGES | |
| EXHIBIT B |
UNDIVIDED PERCENTAGE INTERESTS IN COMMON AREA PARCEL | |
| EXHIBIT C |
MAP SHOWING RESTRICTED COMMON AREA | |
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Recording Requested By and
When Recorded Return To:
Sobrato Interests III
00000 X. XxXxxx Xxxxxxxxx, Xxxxx 000
Xxxxxxxxx, XX 00000-0000
BRIDGEPOINTE CORPORATE CENTER
DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS
A Subdivision of Airspace
THIS DECLARATION, made on the date hereinafter set forth, by THE SOBRATO 1979 REVOCABLE TRUST, AS AMENDED (the “SOBRATO TRUST”), and SOBRATO INTERESTS III, a California Limited Partnership (“SI III”), is made with reference to the following facts:
A. SI III is the tenant under that certain Ground Lease with the Sobrato Trust dated , 1999 (the “Existing Ground Lease”), of certain real property located in the City of San Mateo, County of San Mateo, State of California, more particularly described as Xxxx 0, 0, xxx 0, xxx [Xxxxxx Xxxx] Xxx 0 on the Map entitled “ ,” filed for record in the Office of the Recorder of the County of San Mateo, State of California, on , 19 , in Book of Maps, page(s) (the “Property”). SI III, as the Tenant under the Existing Ground Lease, is entitled to restate the Existing Ground Lease as separate Parcel Leases pursuant to Section of the Existing Ground Lease.
B. SI III and the Sobrato Trust (collectively as the “Declarants”) are making this Declaration for the purpose of facilitating the joint operation, use and enjoyment of the Property, and the improvements situated thereon, upon the demise or grant of the Property into separate holdings pursuant to three separate Parcel Leases, as specified and defined in Section of the Existing Ground Lease. For purposes of separate financing, construction, operation, ownership and conveyancing, it is anticipated that SI III and the Sobrato Trust will enter into a Parcel Lease for each of three (3) Airspace Lots, shown as Lots 1 through 3 on the Map. It is further anticipated that [the Common Area] Lot 4 as shown on the Map, consisting of all of the Property except for the Airspace Lots, will be held in common as undivided leasehold interests by each of the leasehold owners of the three (3) Airspace Lots. The fee interest in the Airspace Lots and the Common Area will be retained in fee by the Sobrato Trust, subject to the leasehold interests created in the Property. Certain portions of the Airspace Lots will be subject to easements for the common use and benefit of the fee and/or leasehold owners of all of the Airspace Lots. The Buildings and other improvements constructed on the portions of the Property which are subject to a Ground Lease (defined in Section 1.19) or other long term airspace or ground lease shall, during the term of such lease, be owned by the tenant under such lease in accordance with the terms of such lease. As used in this Declaration, the phrase “long
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term airspace or ground lease” shall mean any airspace lease or ground lease for an Airspace Lot along with an appurtenant interest in the Common Area with an initial term of thirty-five (35) years or more, including without limitation the Parcel Leases described in Recital A above.
C. This Declaration provides for a description of the fee interest in the Property and the separately held and the commonly held leasehold interests in the Property, easements between and among the holders of the fee and/or leasehold interests in the Airspace Lots and the Common Area, covenants for collective management, administration, operation, and maintenance of the Common Area, the formation and operation of an Association of the fee and/or leasehold owners of the Airspace Lots, and certain covenants, conditions and restrictions relative to the use of the Common Area and the Airspace Lots.
D. It is the intention of Declarant that the Property be developed by SI III as a planned development pursuant to California Civil Code section 1351(k), consisting of up to three (3) buildings devoted to the uses allowed under Section 7.1 of this Declaration, each situated within an Airspace Lot, situated upon and over a garage and podium structure to be located within the Common Area (the “Podium Garage”). The Common Area will also contain landscaping, walkways, additional parking areas (including without limitation any above grade parking structure constructed within the Project), and certain other facilities for the common use and benefit of the Airspace Lots.
E. Declarants intend by this document to impose upon both the fee interest and the leasehold interests in the Property mutually beneficial restrictions under a general plan of improvement for the benefit of all owners or holders of interests in and to the Airspace Lots and the Common Area.
NOW, THEREFORE, Declarants hereby declare that all of the Property and all interests in the Property, including the fee interest and the leasehold interests, shall be held, sold, leased, mortgaged, encumbered, rented, used, occupied, improved and conveyed subject to the following declarations, limitations, easements, restrictions, covenants, and conditions, which are imposed as equitable servitudes pursuant to a general plan for the development of the Property for the purpose of enhancing and protecting the value and desirability of the Property and every part thereof, and which shall run with the Property and all interests in the Property, including the fee interest and the leasehold interests, and be binding on Declarants and their successors and assigns, and on all parties having or acquiring any right, title or interest in or to the described Property or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each Owner thereof.
Application to the Sobrato Trust. Until and unless the Sobrato Trust becomes an “Owner” with respect to any Airspace Lot, as defined in Section 1.1, the Sobrato Trust shall have no obligations or duties under this Declaration.
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ARTICLE 1
DEFINITIONS
1.1 “Airspace Lots” shall mean each of Lots 1, 2 and 3 shown on the Map, each of which Airspace Lots consist of the space bounded by and contained within the boundaries described for such Airspace Lot on the Map. Each Airspace Lot includes both the Building structures situated within the airspace so described and the airspace so encompassed. Each Airspace Lot shall be a “separate interest” pursuant to California Civil Code section 1351(l). The Airspace Lots do not include those areas and those things which are defined as “Common Area.”
1.2 “Arbitration” is defined in Section 11.11.
1.3 “Articles” shall mean and refer to the Articles of Incorporation of the Association, as amended from time to time.
1.4 “Assessment” shall mean that portion of the cost of maintaining, improving, repairing, operating and managing the Project which is to be paid by each Owner as determined by the Association.
1.5 “Assessment Percentages” shall mean and refer to the respective percentage of Assessments allocated and charged to each Airspace Lot pursuant to Section 4.5 and set forth on Exhibit “A” of this Declaration.
1.6 “Association” shall mean and refer to the BRIDGEPOINTE CORPORATE CENTER OWNERS’ ASSOCIATION, a California nonprofit mutual benefit corporation, the members of which shall be the Owners of Airspace Lots in the Project.
1.7 “Board” or “Board of Directors” shall mean and refer to the governing body of the Association.
1.8 “Bylaws” shall mean and refer to the Bylaws of the Association, as amended from time to time.
1.9 “Building” shall mean and refer to the building devoted to a use allowed pursuant to Section 7.1.1 and related improvements constructed, or constructed in the future, within and Airspace Lot by either of the Declarants or successors thereto.
1.10 “City” shall mean the City of San Mateo, California.
1.11 “Common Area” shall mean and refer to [Common Area] Parcel 4 on the Map and all improvements thereon, leasehold title to which is held by the Owners of Airspace Lots 1, 2 and 3 in undivided leasehold interests as tenants in common, in the proportions described on Exhibit “B” attached hereto, and specifically excludes the Airspace Lots and improvements therein. The Sobrato Trust shall retain fee title to the Common Area, subject to the leasehold interests created in the Common Area. The Common Area includes, without limitation, the Podium Garage, and the earth and air below, around and above Airspace Lots 1, 2, and 3, and all improvements, structures, facilities, landscaping and other project components contained therein. Certain portions of the Common Area, and the improvements, structures, facilities, landscaping or other components contained therein, may be situated within the area covered by an Exclusive Airspace Lot Easement established over and across portions of the Common Area by this Declaration.
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1.12 “Common Building Easement Area” shall mean those portions of any Airspace Lot which is exterior to the Building situated within the Airspace Lot reserved for the use and benefit of the holders of interests in each of the Airspace Lots as set forth in Section 2.3, and “Common Building Easement” shall mean the easement established pursuant to Section 2.3.
1.13 “Common Expenses” means and includes the actual and estimated expenses of operating the Common Area and Common Building Easement Area and any reasonable reserve for such purposes as found and determined by the Board and all sums designated Common Expenses by or pursuant to the Declaration, Articles, or Bylaws.
1.14 “Declarants” shall mean and refer collectively to SI III and the Sobrato Trust, and any of their successors or assigns that expressly assume all of the rights and duties of the Declarants hereunder in a recorded written document.
1.15 “Declaration” shall mean and refer to this Declaration, as amended or supplemented from time to time.
1.16 “Exclusive Airspace Lot Easement” shall mean an easement over those portions of the Common Area shown on Exhibit “C” and described in Section 2.4 hereof as Restricted Common Area. The Restricted Common Areas shall be reserved for the use and benefit of the Owner of the Airspace Lot to which it is appurtenant as set forth in Section 2.4.
1.17 “First Mortgage” shall mean a Mortgage which encumbers an Owner’s interest in an Airspace Lot and such Owner’s tenancy in common interest in the Common Area which is prior to any other Mortgages which encumber such interests.
1.18 “First Mortgagee” shall mean the beneficial holder of a First Mortgage.
1.19 “Ground Lease” shall mean any ground lease between the Sobrato Trust, or a successor to the Sobrato Trust, as landlord, and SI III, or a successor to SI III, as tenant, with respect to any Airspace Lot and the undivided interest in the Common Area appurtenant to that Airspace Lot, including without limitation the Existing Ground Lease and any Parcel Lease.
1.20 “Majority Vote of the Owners” shall mean a vote of the Owners of Airspace Lots which results in a majority of the unsuspended voting power of the Association, being greater than fifty percent (50%), prevailing, based upon each Owner having one vote for each square foot of the Building situated within such Owner’s Airspace Lot, or if no Building exists on the Airspace Lot at the time of the vote, the approved square footage of a prospective Building within such Airspace Lot pursuant to the Project Approvals.
1.21 “Map” shall mean and refer to that Map entitled “ ,” filed for record on , 19 , in Book of Maps at page(s) through , in the Office of the Recorder of San Mateo County, State of California.
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1.22 “Member” shall mean and refer to a Person entitled to membership in the Association as provided herein.
1.23 “Mortgage” shall mean a mortgage, deed of trust, assignment of rents, issues and profits or other proper instruments (including, without limitation, those instruments and estates created by sublease or assignment), as security for the repayment of loan(s) or financing(s) which encumbers an Owner’s interest in the Property, made in good faith and for value.
1.24 “Mortgagee” shall mean the holder of a Mortgage, including without limitation a beneficiary or a holder of a deed of trust as well as a mortgagee, and “Designated Mortgagee” shall mean a Mortgagee whose name and address have been registered with the Association.
1.25 “Mortgagor” shall mean the Owner whose interest is encumbered by a Mortgage, including without limitation the trustor of a deed of trust as well as a mortgagor.
1.26 “Owner” shall mean and refer to the record owner, whether one (1) or more persons or entities, of fee simple title to any Airspace Lot which is a part of the Project, but excluding those persons or entities having an interest merely as security for the performance of an obligation; provided however that, whenever an Airspace Lot is held by a tenant under a Ground Lease or other long term airspace or ground lease, the holder of the leasehold interest shall be the Owner under the terms and conditions of this Declaration, rather than the fee holder, and shall hold its interest subject to the terms and conditions of this Declaration. If an Airspace Lot is sold under an installment contract of sale and the installment contract is recorded, the purchaser, rather than the fee holder, will be considered the “Owner” from and after the date the Association receives written notice of the recorded installment contract.
1.27 “Parcel Lease” means any separate Parcel Lease with respect to an Airspace Lot as defined in and made pursuant to Section of the Existing Ground Lease and in any Parcel Lease created pursuant to a Ground Lease.
1.28 “Person” means a natural person, a corporation, a partnership, a trustee, or other legal entity.
1.29 “Podium Garage” means the garage and podium structure referred to in Recital D above.
1.30 “Project” shall mean and refer to the Property and all improvements constructed or to be developed and constructed thereon as described in Section 2.1.
1.31 “Project Approvals” shall mean [Insert description of approvals which govern size, use, etc. of Project, including date of issuance by City]
1.32 “Project Documents” shall mean and refer to this Declaration, together with the other basic documents used to create and govern the Project, including the Map, the Articles, and the Bylaws (but excluding unrecorded rules and regulations adopted by the Board or the Association).
1.33 “Property” shall have the meaning set forth in Recital “A”.
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1.34 “Restricted Common Area” shall mean and refer to those portions of the Common Area, if any, set aside for exclusive use of an Owner or Owners, pursuant to Section 2.4, and shall constitute “exclusive use common area” within the meaning of California Civil Code § 1351(i).
1.35 “Service Area” shall mean and refer to those portions of the Restricted Common Areas that are exclusively used by an Owner of a Building for mechanical rooms, chiller rooms, boiler rooms, elevators, elevator machine rooms, building maintenance rooms, stairs, fuel rooms, emergency generator rooms, switch gear rooms, fan rooms, and any other similar equipment and equipment rooms servicing such Building.
1.36 “Stipulated Rate” shall mean an annual rate of interest equal to the greater of: (a) five percent (5%) plus the rate established by the Federal Reserve Bank of San Francisco as of the twenty-fifth (25th) day of the month immediately preceding the due date on advances to member banks under Section 13 and 13(a) of the Federal Reserve Act, as now in effect or hereinafter from tune time amended; or (b) ten percent (10%).
1.37 “Utility Facilities” shall have the meaning set forth in Section 2.2.7.
1.38 “Voting Power” as used in this Declaration shall mean the total of all votes of all Owners of Airspace Lots, which at the time in not suspended, based upon the allocation of one vote for each square foot of each Building situated within the Airspace Lot, or if no Building exits on the Airspace Lot at the time of the vote, the approved square footage of a prospective Building within such Airspace Lot pursuant to the Project Approvals.
ARTICLE 2
DESCRIPTION OF PROJECT, DIVISION OF PROPERTY, AND CREATION OF
PROPERTY RIGHTS
2.1 Description of Project. The Project is a common interest development pursuant to California Civil Code section 1351(c), as a planned development pursuant to California Civil Code section 135l(k), consisting of the Common Area and the three (3) Airspace Lots, and all improvements thereon. Airspace Lots 1 through 3 each consist of three dimensional space as shown on the Map. Each Airspace Lot is to be subject to a separate Parcel Lease. [Common Area] Parcel 4 consists of all of the approximately Ten and nine tenths (10.9) acres of the Property, exclusive of Airspace Lots 1 through 3. Airspace Lots 1, 2, and 3 will each be improved, or may be improved in the future, with a Building and related improvements. [[Common Area] Parcel 4] may be improved with courtyards, landscaping, water features, recreational features, the Podium Garage, surface parking and an above-grade parking structure, and other amenities and facilities serving Airspace Lots 1 through 3. Undivided leasehold interests in [Common Area] Parcel 4 shall be held in common as undivided interests by the holders of the leasehold interests in Airspace Lots 1 through 3, which undivided interests shall be in the proportions described on Exhibit “B” attached hereto. During any period when an Airspace Lot is not subject to a Ground Lease or other long term airspace or ground lease and the fee owner of such Airspace Lot is the “Owner” of such Airspace Lot for purposes of this Declaration, such fee owner’s ownership interest in [Common Area] Parcel 4 shall be treated under this Declaration as though it is an undivided tenancy in common interest in the percentage
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assigned to such Airspace Lot, as described on Exhibit “B” attached hereto, notwithstanding that such fee owner may be the fee owner of all of [Common Area] Parcel 4 or of any Airspace Lot within the Project. The interests of such fee owner shall be deemed to be subject to the easement rights established by this Declaration in favor of the Owners of other Airspace Lots. The following are the different elements of the Project:
2.1.1 Common Area. Each Owner shall have, as appurtenant to his, her, or its Airspace Lot an undivided interest in [Common Area] Parcel 4, in the proportions described in Exhibit “B” attached hereto, which is the Common Area. The common interest appurtenant to each Airspace Lot is declared to be permanent in character and cannot be altered without the consent of all the Owners affected and the Sobrato Trust, as expressed in an amended Declaration. The undivided common interest cannot be separated from the Airspace Lot, and any conveyance, demise or other transfer of the Airspace Lot shall include the undivided common interest, the Owner’s membership in the Association, and any other benefits or burdens appurtenant to that Owner’s Airspace Lot. Each Owner may use the Common Area pursuant to the terms of this Declaration, in accordance with the purposes for which it is intended, without hindering the exercise of, or encroaching upon, the rights of any other Owners, subject to the rights of each Owner in the Restricted Common Area appurtenant to that Owner’s Airspace Lot. The use of the Common Area by the Sobrato Trust as a fee owner of an Airspace Lot shall be limited and restricted to the rights and use appurtenant to such Airspace Lot as described in this Declaration, and shall be further subject to any Ground Lease or any other long term airspace or ground lease for such Airspace Lot. The Common Area shall include all of the physical structures and improvements contained within [Common Area] Parcel 4 including the Podium Garage, the above-grade parking structure, and other improvements, such as storm and sanitary sewers, water lines, pumps, storage tanks, fire detection and suppression systems, fans, and electrical and mechanical systems, certain portions of which may be Restricted Common Area reserved for and allocated to the exclusive use of a particular Airspace Lot pursuant to an Exclusive Airspace Lot Easement. The Airspace Lot to which such Restricted Common Area is reserved, set aside and allocated, shall have an exclusive easement over such areas for the benefit of the affected Airspace Lot.
2.1.1.1 Partition of Common Area. There shall be no subdivision or partition of the Common Area, nor shall any Owner or any fee owner of any portion of the Project seek any partition or subdivision thereof.
2.1.2 Airspace Lots. The Map divides the portions of the Property exclusive of the Common Area into three Airspace Lots, which will be three dimensional parcels as shown on the Map, extending from the top of the Podium Garage to a height somewhat greater than the top of each of the Buildings, enveloping each of the three Building sites situated above the Podium Garage of the Project. To accommodate future flexibility, these airspace parcels will be slightly larger than the planned Building structures.
2.1.2.1 The areas within each of the Airspace Lots which are exterior to the actual Building structures within such Airspace Lot will be reserved for and are hereby established as reciprocal easement areas for maintenance and use, in a manner similar to the commonly held Common Area, by all of the Airspace Lot holders, described in Section 2.3 hereof as Common Building Easement Areas.
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2.2 Non-Exclusive Easements Reserved and Established over Common Area. Each of the Airspace Lots shall have appurtenant to it, as the dominant tenement, and there are hereby established, reserved and granted to each Owner of an Airspace Lot, non-exclusive easements over the Common Area, as the servient tenement, for a term and duration coextensive with the Owner’s title or interest in the Airspace Lot, for ingress and egress; use, occupancy and enjoyment; building support for footings and foundations; encroachments; maintenance and construction; drainage; parking; and for installation and operation of utilities, and other purposes as more particularly set forth and described herein in subparagraphs 2.2.1 through 2.2.7, subject to the following provisions:
(A) The right of the Association to discipline Members and to suspend the voting rights of a Member for any period during which any Assessment against the Member’s Airspace Lot remains unpaid, and for any infraction of the Declaration, Bylaws, Articles or written rules and regulations in accordance with the provisions of Sections 4.9.5, 5.2.6, 5.2.7 and 11.1 and other applicable provisions of this Declaration.
(B) The access rights of the Association to maintain, repair or replace improvements or real or personal property located in the Common Area as provided in Sections 2.2.4 and 5.2.5 and elsewhere in this Declaration.
(C) The rights and duties of the Owners to grant easements under, in, upon, across, over, above or through any portion of the Common Area (i) to permit the beneficial development and use of the Common Area in accordance with this Declaration and the Project Approvals, subject to approval by the Board, and (ii) for any required or appropriate utility for the benefit of the Common Area or any Airspace Lot, subject to the following:
(1) The size, scope and location of any such easement shall be determined by the Board in a non-discriminatory manner to enhance the efficient, cost-effective use of the easement, to comply with applicable laws and permits, and to preserve the aesthetic appearance of the Project.
(2) The form and substance of such easements shall be determined by the Board, and shall include an indemnification (if such an indemnity can be negotiated), by the grantee of the Owners, the fee owners of the Project, and the Association for any and all losses, costs, claims, liabilities and damages incurred by any Owner, fee owner or the Association in connection with the use of such easement by a grantee and such grantee’s agents, contractors, employees and invitees.
(D) Easement rights of SI III and Owners for work necessary to complete development and construction of the Project, the Office Buildings and to repair, replace or restore the improvements situated within the Airspace Lot or within the Restricted Common Area, as provided in Sections 2.2.4, 8.1, 8.2, 9.1, 9.2, 9.3 and 10.1 and elsewhere in this Declaration,
(E) The rights of the public to access the Common Area as provided for in the conditions to the Project Approvals in effect and as amended from to time.
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